By Sola Akinyede
‘The Commission shall in the discharge of its functions under this Act not be subject to the direction or control of any other person or authority.’ – Section 3(14) of the Corrupt Practices and Other Related Offences Act- 2000 (ICPC Act)
Following the removal of Mallam Nuhu Ribadu as the Chairman of the EFCC, it was obvious that some forces that were against the good work of Ribadu were at play. As the Chairman of the Senate Committee overseeing the EFCC, I thought it necessary to protect the structural and operational autonomy of the EFCC by amending the EFCC Act by importing the Section 3(14) of the ICPC Act into it. I also tried to create provisions to ensure transparency and accountability in the EFCC by having a ‘Guard the Guard’ provision- an advisory board composed not of politicians but respected and distinguished persons of integrity as an advisory board to the President on the EFCC as is the case in Hong Kong. Unfortunately, these proposals did not go beyond second reading before I left the Senate.
Provisions to preserve the independence of anti-corruption agencies are standard global best practice. For example, Article 36 of the United Nations Convention Against Corruption (UNCAC) a treaty which Nigeria and 169 other United Nations member states have signed and ratified, mandates Nigeria to set up a specialized body to combat corruption and ensure that such bodies are granted necessary independence so that they can function without undue influence. According to the International Standards and Models of Anti-corruption Institutions prescribed by the Organisation for Economic Co-operation and Development (OECD) independence that guarantees structural and operational autonomy is not only fundamental but a mandatory legal mechanism aimed at preventing political interference. Two of the world’s most successful anti-corruption bodies, the 68 year old Corrupt Practices Investigation Bureau of Singapore and the 46 year old Independent Commission Against Corruption of Hong Kong are independent and report only to their Prime Minister and Head of government.
Recently, the Acting Chairman of the EFCC, Ibrahim Magu was ambushed in front of his office and whisked to the Presidential Villa to face an Investigative Panel on the allegation of corruption and ‘insubordination’ allegedly to Abubakar Malami SAN the Attorney General of the Federation (AGF.) Even DPOs invite suspects to the police station, they don’t abduct them in front of their offices or houses. Under the EFCC Act, the Chairman of the Commission is not subordinated to anyone. He is appointed by the President subject to confirmation by the Senate and is required to submit an annual report to the National Assembly. Magu was detained for nine days without a court order contrary to the provisions of the Constitution. Initially, the activities of the Panel were held in camera with his lawyers complaining that the evidence of those testifying against him were not made available to them – a 15th century practice known as Trial By Ambush. And recently two of his lawyers were allegedly ejected from the venue of the Panel (which has just been converted into a Judicial Commission of Inquiry) on the grounds that there was ‘only one seat for his lawyer’. It is not unusual for a person to engage a team of lawyers, one to cross examine, one may be a strategist while one takes records. In its defence of these tactics which are reminiscent of a village customary court, the Presidency says no one is beyond scrutiny. Correct. However, there are laid down processes for that scrutiny which must be in consonance with the rule of law. While these body blows may be aimed at Magu, the more serious collateral damage (including to staff morale) is to the institution –the EFCC.
However, more ominous than this collateral damage are events which show that the AGF appears to be bent on taking personal and total control not just of the EFCC but of all other Anti-corruption agencies contrary to the provisions of the law and the international treaties and Conventions to which Nigeria is a party.
Although the AGF has denied that he does not need any law to give him control of the EFCC, there is presently an Economic and Financial Crimes Commission Amendment Bill seeking to give the AGF the following powers:
I. Limit the power of the President to appoint the Chairman and members of EFCC unless he the AGF recommends. Presently the President can appoint the Chairman and members without recommendation by anyone.
II. The position of the Chairman has been split and downgraded into the position of a Director-General with a Chairman of the board above his head as against the present position in which the Chairman is an independent chief executive reporting to the President. Apart from the fact that the most successful anti-corruption agencies in the world are headed by chief executives who report to the head of government, with the present economic situation in the country, creating the position for two people is a waste of resources. The whole idea appears to be to diminish the position so that the Director-General will be easier to control.
III. Currently, the EFCC Act requires that the Commission submits an annual report to the National Assembly. The proposed amendment is that the annual report cannot be submitted to the National Assembly unless it is first submitted to the AGF. What if the actions of the AGF are negatively impacting the EFCC? Why must the AGF be the person to submit a report prepared and signed by the EFCC? Is it for him to vet and approve the contents?
IV. Under Clause 45 of the Bill, the AGF will have the power to prosecute EFCC cases, making it mandatory for the files to be handed over to him and intervene at any stage of the proceedings including the appeal stage.
V. He is also given the power to transfer persons from the Ministry of Justice or other agencies or private institutions to the Prosecution Department of the EFCC. By virtue of this power, the AGF can transfer the staff of a bank or a private law chambers to the Commission without going through the employment process.
VI. Under the Bill, it is only with the approval of the AGF that the EFCC can approach INTERPOL for assistance. Why is the AGF also seeking to assume the EFCC’s investigative powers ?
That the AGF is the major beneficiary of most of the amendments in this Bill, makes it difficult for one to believe that he has nothing to do with it.
To make things worse, in October 2019, AGF Malami arrogated to himself in respect of EFCC, ICPC, NDLEA, all Anti –corruption agencies and all law enforcement agencies the following powers under what he called Assets Tracing, Recovery and Management Regulations 2019 which has been gazetted.
i. Overall custody and management of final forfeited assets (section 3f)
ii. Approval and appointment of Asset Managers (section 3g)
iii. Management of forfeited assets in foreign jurisdiction (sic) (setion 3j)
iv. All final forfeited assets received by all Anti–corruption agencies and all law enforcement agencies shall be handed over to the office of the AGF within 60 days from October24 2019
v. Under Section 11(7))where the funds recovered belong to a State government or Local government, the AGF in collaboration with the Finance Minister shall negotiate not less than 30% of the funds as ‘administrative charges’. Nigeria is a federation, neither the National Assembly nor even the President has the powers to seize the assets of a State government under the guise of administrative charges. How then can a Minister by a mere regulation without the approval of State representatives or the National Council of States seize State assets?
Section 31(2) of the EFCC Act and Section 38 of the NDLEA Act are very clear. They both state that forfeited assets shall be disposed of, or sold by the Secretaries of both the EFCC and the NDLEA and the proceeds paid into the Consolidated Revenue Fund of the Federation. Section 31(4) of the EFCC Act and 38(4) of the NDLEA Act are also very clear. They state that the AGF may make regulations for the disposal or sale of forfeited assets. The purpose of that section is to ensure transparency and guide the Secretaries by ensuring for instance that such assets are valued by independent and honest professionals. The two laws do not give the AGF the power to appoint asset managers, take custody of and manage forfeited assets. What qualification does the AGF have to manage assets in foreign jurisdictions? It is instructive that the position of Secretary of the EFCC has now been defenestrated by the proposed Amendment Bill perhaps so that the AGF take over his powers to sell forfeited assets.
The National Assembly makes laws that Secretaries are to sell or dispose of assets and pay proceeds into the Consolidated Revenue Fund of the Federation, the AGF without going back to the National Assembly takes over the functions of the National Assembly, alters those laws and says that the assets must be kept in his custody for his management and to appoint asset managers and auctioneers. With regard to the Section 26(2) of the ICPC Act under which the AGF is claiming to give himself the power to take over forfeited assets, that section does not give him such powers. The section simply states that the prosecution of an offence under the ICPC Act shall be initiated by the AGF. Indeed, section 3(14) of the ICPC Act unequivocally states that in the discharge of its functions, the ICPC shall not be subject to the control or direction of any other person or authority. I believe that the AGF is a person and his office an authority. A regulation must be in consonance with and cannot alter or override a law made by the National Assembly.
It was in the exercise of these powers that the AGF confirmed that he appointed as an auctioneer, to sell forfeited diesel and crude oil on behalf of the federal government, a company being prosecuted by EFCC for allegedly stealing 12 metric tonnes of crude oil. It is ironic that this is coming from a minister who has given himself the power of inter-agency coordination. If the EFCC was in charge of appointing the auctioneer as provided by the EFCC Act, they would not have appointed a company they were prosecuting.
It is obvious from all these that the Buhari administration still does not understand that one of the reasons why we are in the throes of violent insurgency, kidnapping and banditry is systemic corruption which is still raging (as shown recently by events in NDDC and NSITF) arising from the failure of government and that unless we build and strengthen our anti-corruption institutions, these problems will continue to get worse. According to a UNDP report, the lowest scoring countries on the Transparency International Corruption Perception Index, Somalia, Afghanistan, South Sudan and Libya are all facing intense conflicts characterized by violent extremism, insurgency and terrorism. Again this year, the Global Terrorism Index, a comprehensive study by the Institute for Economics and Peace analyzing the impact of terrorism on 163 countries covering 99.7% of the world’s population ranks Nigeria as No 3 only after Iraq and Afghanistan with Syria, Pakistan and Somalia performing better than Nigeria. President Buhari has just launched Agenda 2050. Just as Vision 20:2020 was not a vision but a mirage, Agenda 2050 is likely to be a mirage and will be dead on arrival unless we combat systemic corruption, systemic and institutional waste by the elite in the three arms and three tiers of government. Niger Delta Development Commission, North East Development Commission and all other Development Commissions that may be created for other zones are going nowhere until we build and strengthen our anti- corruption institutions. The strengthening of the CIPB by Lee Kwan Yew, the late founding father of Singapore after he became the Prime Minister in 1959 was what catapulted Singapore from a third world country with a GDP per capita of $476 (while Nigeria’s was $559) to a first world country today with a GDP per capita of $65,233 while Nigeria which President Buhari (technically correct)recently described as the most prosperous black nation in the world but was also ranked by the World Bank as the nation with the largest number of people (87 million) living in extreme poverty in the world overtaking India with a population of 1.38 billion, today has a GDP per capita of just $2,229. There can be no development until we build and strengthen our anti-corruption agencies.
Provisions of the treaty signed by Nigeria as well as international global best practices have determined that anti-corruption agencies should be insulated from politics, and given functional and operational independence. This is because the level of the necessary independence is closely tied to the level of corruption. Malami, the present AGF is not only a politician, but was a political party operative having been legal adviser to CPC which merged with ACN to form APC. Is it in the interest of our country and the fight against corruption that these sensitive powers that the AGF has given himself should be wielded by a politician rather than by public servants who are politically neutral and insulated from politics as provided by the law? So, if PDP wins the Presidential election in 2023 and its current legal adviser becomes the AGF, he will also take control of the anti-corruption agencies, manage forfeited national and foreign assets and appoint auctioneers? With this arrangement by which the EFCC and other ant-corruption agencies are run from the AGF’s office, party members can sell forfeited assets, have their corruption cases and those of their friends and associates terminated, and of course hunt and victimise members of the opposition.
These measures being taken by the Buhari administration are systematically dismantling the anti-corruption agencies. President Buhari has a long-standing reputation as an incorruptible person. It will a tragic and historic paradox for Nigeria that the President who came into power with anti-corruption being his major platform, will end up with a legacy as the President whose administration started the dismantling of the anti-corruption agencies.
*Senator Akinyede was Chairman Senate Committee on Drugs, Narcotics, Financial Crimes and Anti-Corruption in the 6th Senate