Onyekachi Umah
Assessment of the EFCC Order
On 16 March, 2021, the Economic and Financial Crimes Commission (EFCC) announced that all employees of financial institutions (including banks) in Nigeria must declare their assets before 1st June, 2021 in line with the provisions of the Bank Employees, etc. (Declaration of Assets) Act 1986 (the EFCC Order).
The Bank Employees, etc. (Declaration of Assets) Act (BEDA Act or the Act) which was promulgated on 26 September, 1986 (35 years ago), is lawful, valid and operational in all parts of Nigeria. The Act does not need an EFCC Order, before any person can be investigated or prosecuted under it. Hence, the EFCC Order is a mere friendly Notice (reminder) of the existence of the BEDA Act. However, such reminder is unknown to law and the BEDA Act; it lacks the force of law, and has no legal effect; a mere Noise.
The BEDA Act mandates all employees and former employees of the Nigeria Customs Service, the Central Bank of Nigeria, Banks, Bureau de Change, Cryptocurrencies operators and all other financial institutions in Nigeria or in foreign branches, to declare their assets annually and to continue to do so even 2 years after termination of the employment. It also allows the President of Nigeria to add more persons, to the list of persons to be bound by the law to declare their assets.
At the time of this publication, the writer is not aware of any Federal Gazette stating a deadline for the mandatory declaration of assets by employees of financial institutions from the Federal Government of Nigeria in the BEDA Act. Rather, the public media is awash with reports that the Chairman of the EFCC made a public comment, ordering the mandatory declaration of assets by employees of financial institutions in line with the Act.
Generally, Government orders are to be made by instruments published on the Federal Gazette. Specifically, Sections 12 (2) and 13 of the BEDA Act permit only the President of Nigeria to make directions and regulations for the it. Obviously, being a 1986 law, the Act never mentioned the office of the Chairman of the EFCC as the person to make any such directions. It is a power given to the President of Nigeria alone, and there is no room for such powers to be delegated to another person. In exercise of delegated law-making powers (quasi-legislative powers), the executive arm of government (like the President, Ministers, Heads of Federal Parastatals, Governors, State Commissioners and Heads of State Parastatals) make Executive Orders, Regulations and Rules for effective and efficient implementation of existing laws. Consequently, written Executive Orders, Regulations or Rules legally made by an executive government, are binding law.
It must be mentioned that mere television/radio comments, policy documents/broadcasts, social media posts or public threats and pleas of President, Governor or their agents, are not law or regulation. At best, such threats/pleas are policy guidelines/directions, and in Nigeria, policy guidelines of Government are not laws. Unlike Executive Orders, Regulations or Rules which are law and having the force of law, policy documents/guidelines of government and other comments of government are not Law”. Consequently, the EFCC Order is not an executive order, regulation or law.
Hence, it is unlawful, illegal and unconstitutional for any person to be arrested or prosecuted, based on a mere television/radio comments, policy documents/broadcasts, social media posts or public threats and pleas of President, Governor or their agents (the EFCC Chairman). Offences must be clear, and can only be created by law or regulation, and not by common sense, inference, wishes, conjecture, popular opinion, “judicial rascality” or executive abracadabra.
The BEDA Act has no room for reminders and notices, and rather expects the Federal Government of Nigeria to enforce it against all employees bound under it. The EFCC and other security agencies should have, on the orders of the Secretary to the Federal Government of Nigeria, been verifying and investigating asset declarations of employees under the Act, and the assets of such employees. And, where such employees failed to declare assets since 1986, they should have been prosecuted and convicted.
The EFCC Order is a Notice, to the extent that it is a reminder of the existence of the Act, however, it is also a Noise, since it is not a binding regulation/directive of Federal Government, and has no force of law. The grace period from 16 March, 2021 to 1st June, 2021 purportedly created by the EFCC Order is unknown to law; rather, it is a violation of the BEDA Act, and as such, unlawful and illegal.
Debunking Myths Relating to the BEDA Act
Several myths and conspiracy theories have been birthed around the BEDA Act. Below is an attempt to debunk some of the myths.
The BEDA Act is not a creation of the EFCC or the President Buhari. Rather, it is a 35 year old existing Federal legislation, that has rarely been enforced in Nigeria.
An aide of President Buhari, Lauretta Onochie, was reported by the International Centre for Investigative Reporting (ICIR) to have while relying on the BEDA Act and the EFCC Order, twitted that: “Lifestyle audit is now legal in Nigeria. Those who flaunt lifestyles they cannot afford, can now be investigated by any of the anti-graft agencies to produce evidence of the sources of their wealth. You can now be called upon to explain how you acquired certain properties.”. It is important to note that, the BEDA Act does not affect persons who are not employees that are under the Act.
Although, Section 7 of the BEDA Act creates the offence of “Unjust Enrichment”, it focuses only on employees that are under the Act, that is: “… owns assets in excess of his legitimate, known and provable income and assets”. The Act does not by any chance create room for lifestyle auditing of all Nigerians. However, by a coalition of existing laws in Nigeria, lifestyle auditing can be conducted on any person in Nigeria.
Questions
Chief Dele Momodu asked some questions in response to the EFCC Order and the BEDA Act, which seem to represent views of some Nigerians. Chief Momodu asked; “Are we in a military regime? Why not start with Government agencies and Politicians? Banks belong largely to the private sector.” In response to his question; it is important to note that the BEDA Act is an existing Federal Government and not a Presidential Order. By the BEDA Act, some specific private persons are to declare their assets, and the President of Nigeria can also increase the categories of persons that must make asset declaration. Nigeria is not under a military regime but under democracy, and under the democracy is a democratic legislation that mandates certain private persons to declare their assets annually. Also, Government and Politicians are often public officers, and are to declare their assets under the Code of Conduct. However, as rightly pointed out by Chief Momodu, there is need for the President of Nigeria to exercise his powers under the BEDA Act, and enlist Politicians into the list of private persons who should declare their assets annually.
Objections
The Association of Senior Staff for Banks, Insurance and other Financial Institutions (ASSBIFI) was reported to have objected to the EFCC Order, and its President was reported to have said: “EFCC has the right to investigate the top management and board of directors of banks, but ordinary workers who are diligently carrying out their responsibilities as professionals should be exempted.” In response to his statement, the Act has not exempted any bank or financial institution worker from making declaration of assets. Hence, the EFCC and even the President of Nigeria, lacks the power to remove or exempt any person listed in the BEDA Act.
The National Union of Banks, Insurance and Financial Institutions Employees (NUBIFE) in communicating its displeasure, stated through its Deputy General Secretary, that, “Another thing is that they said bank workers. Now, who are the bank workers? They should go to CBN (Central Bank of Nigeria) and ask who are the bank workers? The CBN has said that about 90 per cent of those working in banks, are not bank workers. So, if you are saying tellers, marketers and others are not bank workers, then fine. In that case, they (EFCC) should focus on the MDs (managing directors) of banks.” The BEDA Act has gone ahead of the growing confusion on the status of bank workers, and bank casual/part-time workers. The BEDA Act expressly states that all manner, title and types of workers in the bank and financial institutions are to declare their assets. The Act covers all employees of financial institutions in Nigeria and those in their foreign branches, from the bank executives to cleaners, drivers, messengers, and the last person on their chain, whether in full or temporal employment.
It has also been canvassed by some persons that the CBN collects asset declaration from top executives of financial institutions, and as such that the BEDA Act and the EFCC Order are not necessary. This conclusion is wrong. Whatever asset declaration that the CBN collects, is good and commendable. However, the Act is specific on how asset declaration forms are to be completed, submitted, delivered, timelines and the relevant person to receive such forms. Under the BEDA Act, the CBN is not a collector of asset declaration forms; rather it is the Secretary to the Federal Government of Nigeria or his/her agents.
Onyekachi Umah LL.M, ACIArb(UK), Managing Partner of Bezaleel Chambers International; Executive Director of Sabi Law Foundation
