By Alex Enumah in Abuja
The Attorney General of the Federation (AGF) and Minister of Justice, Mr Abubakar Malami (SAN), on Tuesday said he acted in compliance with the extant laws including the provisions of the Economic and Financial Crimes Commission (EFCC)
Establishment Act 2004 in setting up the recently inaugurated Inter-Ministerial Asset Disposal Committee.
Malami argued that Section 31(1-4) and Section 43 of the EFCC Establishment Act 2004 not only justified his action but also cleared doubts on “the misconceived and shallow legal analysis in the public space on the legality or otherwise of the committee”.
The AGF, in a statement by his media aide, Dr Umar Gwandu, noted that lack of understanding of the law was imminent in the wrong impression being created, which according to him, was fuelled by the faulty assumption that only the EFCC is engaged in asset recovery and forfeiture proceedings. Hence the challenge to the setting up and mandate of the committee.
He insisted that in issuing regulations and setting up Committee for Asset Disposal, he was guided, amongst other statutory provisions, by the wordings of Sections 31(4) and 43 of the EFCC Act, “which confers the Attorney-General of the Federation with the powers to make rules or regulations with respect to the exercise of any of the duties, functions or powers of the EFCC (inclusive of asset disposal)”.
For the avoidance of doubt, Section 43 of the EFCC Act provides thus: “The Attorney-General of the Federation may make rules or regulations with respect to the exercise of any of the duties, functions or powers of the commission under this Act.”
The minister, who noted that it is elementary law that the process of asset forfeiture and disposal constitutes part and parcel of criminal prosecution, stated that it is trite in law that all prosecuting agencies derive their powers to prosecute from that of the constitutional and statutory powers of the AGF.
“The powers of the EFCC is constitutionally subject to the overriding powers of the Attorney-General of the Federation.
“It is important to note that asset forfeiture and disposal is a continuation of criminal proceedings and in furtherance of the powers conferred on the Hon. Attorney General of the Federation under Section 150(1) of the 1999 Constitution (as amended) as the Chief Law Officer of the Federation, Section 174(1)(b) of the 1999 Constitution (as amended) grants him the exclusive power “to take over and continue any such criminal proceedings that may have been instituted by any other authority or person.
“The Hon. Attorney General of the Federation is therefore on firm
legal grounds to regulate the process of asset forfeiture and disposal from the EFCC or any other agency,” the statement read in part.
It stated further that Ministries or Departments of Justice worldwide exercise similar powers of asset recovery, forfeiture, management and disposal and cited a plethora of judicial decisions to the effect that the powers of the AGF are not subject to review by any court of law.
“Whilst the constitution has provided some safety nets on the above incontestable position by providing that the Attorney General shall have regard to public interest, the interest of justice and the need to prevent abuse of legal process in exercising his powers, the foregoing still remains the Attorney General’s call to make. It is not in doubt that disposal of forfeited assets is in the best interest of the public and justice. The Attorney General has a total responsibility to control and manage the conduct of criminal prosecutions.
“It is, therefore, standing logic on its head for anyone to suggest that a man who is empowered to initiate, takeover and discontinue any criminal proceeding instituted by any person or authority, makes rules for the disposal of forfeited assets and the general operations of the EFCC, and a custodian of public interest, interest of justice and power to prevent abuse of legal process among others has no power to manage or deal with the outcomes of such proceedings (even when conducted by EFCC) either by way of forfeiture or disposal.
“The settled position of the law remains that a power or duty conferred by the constitution cannot be taken away by any other law as such will be declared null and void for inconsistency under Section 1(3) of the 1999 Constitution (as amended).
“Thus, the powers of the Attorney-General of the Federation in criminal matters generally under the constitution cannot be circumscribed or taken away by the provisions of Section 31(1-3) & 32(1) of the EFCC Act.
“The powers of the Hon. Attorney General of the Federation in the conduct of criminal matters by law enforcement agencies are further emphasized by the following provisions of Section 29(1),105(1-3), 106, 107 & 108 of the Administration of Criminal Justice Act (ACJA). It is quite remarkable to note that Section 268(1) of the ACJA requires a public officer prosecuting in his official capacity in any criminal proceedings to prosecute subject to such direction as may be given by the Attorney-General of the Federation.
“The Inter-Agency Committee has, therefore, been constituted in recognition of the relevance and statutory mandates of the listed MDAs and also against the background of the need to provide synergy and coordination amongst all relevant MDAs in the pursuit of the common agenda of the government.
“While the committee will not be tied down by these needless distractions, it remains open to positive suggestions,” the statement added.
