• Say nothing precludes EFCC to take action in Lagos
• Warn against conflict in application of the law
Gboyega Akinsanmi
Senior lawyers yesterday justified the decision of the Lagos State House of Assembly to enact the Public Complaints and Anti-Corruption Commission Law, 2021, citing different provisions of the 1999 Constitution and precedents of the Supreme Court.
The lawyers argued that the state assembly duly passed the law with due regard to the doctrine of covering the field, a constitutional law principle in a federal system with respect to which legislating house possess the constitutional power to legislate.
A former President of the Nigerian Bar Association (NBA), Dr. Olisa Agbakoba; one of his successors, Chief Joseph Daudu (SAN) and Principal Partner, J-K Gadzama LLP, Chief Joe-Kyari Gadzama explained the constitutionality of the state’s anti-graft law in separate interviews yesterday.
The state governor, Mr. Babajide Sanwo-Olu had signed the Lagos State Public Complaints and Anti-Corruption Commission Law, 2021 with a promise to promote accountability and transparency in the governance process.
However, many have interpreted the enactment of law as a move to shield a former governor of the state, Bola Tinubu from prosecution by federal anti-graft agencies.
Section 13(3) of the law provides that the commission “shall upon the commencement of this law take over the investigation of all anti-corruption and financial crime cases involving the finances and assets of Lagos State Government being investigated by any other agency.”
Section 13(5) also states that the commission “shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government.”
While Gadzama claimed that establishment of the state’s anti-graft commission “is arguably constitutional,” Dauda cited different sections of the 1999 Constitution to justify the constitutionality of the commission.
Responding to THISDAY’s inquiries, Agbakoba explained the legality of the state’s anti-graft law, citing two decisions of the Supreme Court that confirmed the jurisdictions of the federal and state governments to legislate on the anti-corruption fight.
Agbakoba, however, argued that the powers of the federal and state governments would be subject to the doctrine of covering the field, which according to him, was always applicable in any federal system.
Under the doctrine of covering the field and by virtue of the exclusive list powers in the constitution, according to Agbakoba, it is only the federal government that is empowered to set up an agency such as the EFCC on corruption.
He observed: “If the Lagos state anti corruption agency is designed to strengthen the anti corruption framework specifically only in Lagos state then under the doctrine of shared powers, I would argue that the state anti corruption agency has been legitimately established.
“Nothing in the law, however, will preclude the EFCC from taking action in Lagos State. In Ondo state vs Attorney General of the Federation, the Supreme Court actually affirmed my position that both states and the federal government have concurrent powers on corruption matters.”
He also explained the limits of power on anti-corruption fight, citing the decision of the apex court in a case between Abia State and Federal Government of Nigeria (FGN) that the federal government “not only has power to establish the EFCC to deal with corruption cases across Nigeria but that states are amenable to the jurisdiction of the EFCC.
“The case did not consider whether states might establish anti corruption agencies to complement the EFCC. I would argue that under the doctrine of shared powers states might establish anti corruption agencies to complement but not override the EFCC,” NBA’s former president
With due regard to the power of the court, Daudu first observed that only courts vested with appropriate jurisdiction could determine whether a law duly passed by a State House of Assembly is in conflict with an Act of the National Assembly or indeed with the Constitution of the Federal Republic of Nigeria (as amended),
He, however, cited Section 4(7) of the 1999 Constitution to the constitutionality of the state’s anti-graft law. The section states: “The House of Assembly of a State shall have power to make laws for the peace, order and good government of the state…
“Or any part thereof, with respect to the following matters, that is to say- (a) Any matter not included in the Exclusive Legislative List set out in Part 1 of the 2nd schedule to this Constitution:
“(b) Any matter included in the concurrent legislative list set out in the first column of Part II of the second schedule to this Constitution to the extent prescribed in the Second column opposite thereto:
“(c) Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”
In this context, Daudu also observed that the powers “to make laws for the purposes of preventing and fighting crimes and criminality, anti-corruption, issues relating to public complaints, bribery, gratification etc. is not one contained in the Exclusive Legislative List.”
The powers, according to the senior advocate, are also not contained in the Concurrent Legislative List. It therefore follows that the law in issue not being one relating to an item in either in the Exclusive or Concurrent lists is perfectly within the law making powers of the Lagos State House of Assembly.
He, thus, said it could be argued that the power to legislate against crimes of any genre whatsoever by the LSHA “is not an exercise of the powers to make laws for the peace, order and good government of the state.”
Like Agbakoba, Daudu observed that the only caveat “is where there is a conflict or collision between a law passed by a state and an existing federal law. The norm is that the state law will be void to the extent of inconsistency.”
In this instance, he pointed out that the state assembly was cautious and deliberate “in setting out the powers of the commission and the scope of offences it can investigate. It is clear that federal offences such as money laundering or advance fee fraud have been omitted.
“To that extent, it is doubtful that the afore described law can be caught by the doctrine of covering the field, which simply means that where a federal legislation has covered a particular field or subject, it follows that such state law is otiose.
“One central point must not be overlooked. Nigeria is a federation made up of component states and the centre. The principle of federalism allows each component unit to exercise law-making powers within its sphere of authority. To that extent, it is my considered, though humble view that the law is valid,” Dauda said.
Gadzama explained that the constitutionality of the state’s anti-corruption law found justification in Section 15 (5) of the 1999 Constitution, stipulating that the state “shall abolish all corrupt practices and abuse of power.”
With this provision, Gadzama observed: “One cannot say that the law establishing the commission is unconstitutional. The state assembly has the requisite legislative powers to make laws in compliance with this constitutional mandate to abolish corrupt practices and abuse of power.”
He, however, emphasised the need to exercise caution about the applicability of the law considering that the National Assembly in the exercise of the legislative powers via Item 60 (a) of the Exclusive Legislative List and Section 15(5) of the 1999 Constitution had legislated on virtually the same subject matter by the enactment of EFCC Act and ICPC Act.
On this note, he explained the limits between the state and federal powers in the fight against corruption as encouraged by the 1999 Constitution “can conveniently be said to have been settled without any iota of doubt in the aged principle of law known as the ‘doctrine of covering the field.”
Gadzama, therefore, explained that the doctrine “is usually applied just as in this instance, between a law enacted by the federal legislature and that enacted by a state legislature on the same subject.”
He said the doctrine was often applied in situations where identical legislations on the same subject matter “are validly passed by the different legislative bodies by virtue of their constitutional powers to make laws.
“In such a situation, it would be more appropriate to invalidate the identical law passed by the state house of assembly on the ground that the act passed by the National Assembly has covered the whole field of that particular subject matter.
“If the state’s anti-corruption law contravenes or is identical with provisions of the EFCC Act or ICPC Act, the doctrine will invalidate those provisions.”
