THE SUNSET OF EFCC’s BLANKET POWER TO PROSECUTE ALL FORMS OF “CORRUPT MALPRACTICES”

By Y.H. Liman Esq.



INTRODUCTION

In the year 2004, the Economic and Financial crimes Commission (EFCC) was established in order to wage war against economic and financial crimes which hampered the development of Nigeria as a country. In its early days of operation, EFCC was known for going after public officials who diverted the country’s resources for their own personal gain. But as time went on, they expanded their tentacles to other forms of corrupt malpractice some of which are not strictly economic and financial crimes. Questions as to limit of the powers of the EFCC then started popping up here and there. While EFCC believes that the phrase “any form of corrupt malpractice” in section 46 of the Economic and Financial Crimes Commission (Establishment) Act (EFCC Act) gave them powers to investigate and prosecute all forms of corrupt malpractices without limit; those on the other side of the divide, however, believe that the phrase can only be interpreted to include only economic and financial crimes without more.

Then came the long-awaited answer in the decision of the Supreme Court in the case of Dr. Joseph Nwobike (Appellant) v. FRN (Respondent/EFCC) (2021) LPELR-56670(SC) which settled the dust. But then even the judgment of the Supreme Court was misunderstood by many, because catchy headlines such as “EFCC can longer look into States’ financial offenses”; “Governors will become more powerful because EFCC can no longer prosecute them for financial crimes based on Nwobike v FRN” etc. kept on making rounds on social media. Needless to say, while the headlines seemed misleading, I deferred commenting before reading the judgment first. After thoroughly reading the judgment, below is my contribution to the pool of ongoing discussions and debates.

BRIEF BACKGROUND OF THE CASE AT THE SUPREME COURT

Briefly, the Appellant appealed against the judgment of the Court of Appeal Lagos Division which affirmed part of the judgment of the trial court convicting him for the offense of attempting to pervert the course of justice. The Respondent challenged the appeal and urged the Supreme Court to uphold the concurrent findings of the Courts below. The judgment of the Supreme Court mainly cantered on two points:

1. Whether the phrase “any form of corrupt malpractice in section 46 of the EFCC Act includes the offence of attempt to pervert the cause of justice.

2. Whether section 97 (3) of the Criminal Law of Lagos State defined the offence of attempt to pervert the cause of justice and if not, the consequence thereof.

I will however limit myself to only the 1st issue being the only issue relevant to this article.

THE UNANIMOUS DECISION OF THE SUPREME COURT

The Supreme Court was invited by both parties to judicially interpret section 46 of the EFCC Act with a view to determine whether the phrase “any form of corrupt malpractice” in the said section can be interpreted to include other offences such as the offense of attempt to pervert the cause of justice; or it can only be interpreted to include only economic and financial crimes. Section 46 of the EFCC Act provides:

“Economic and financial crimes means the non-violent criminal and illicit activity committed with the objective of earning wealth either individually or in a group or organized manner thereby violating existing legislation governing economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, foreign exchange malpractice including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc.”

Before discussing the position of the Court, it is important to briefly highlight the parties’ perspectives. While the Respondent argued that the phrase “any form of corrupt malpractice” in the section quoted above gives them the absolute power to investigate and prosecute any form of corrupt malpractice not listed in the EFCC Act and that includes the offense attempt to pervert the course of justice; the Appellant on the other hand, argued that the phrase can only be interpreted to include corrupt malpractices relating to economic and financial crimes and therefore the offence of attempt to pervert the cause of justice which is not an economic and financial crime, cannot be investigated and prosecuted by the Appellant. In resolving the issue, The Supreme Court defined the phrase “corrupt malpractice” as follows:

"It suffices therefore to say that the words "corrupt malpractices" entail conduct that might or affect the honest and impartial exercise of a duty; encompassing a vicious and fraudulent intention to evade the prohibitions of the law; something against or forbidden by law; moral turpitude or exactly opposite of honesty involving intentional disregard of law from purely improper motives."

Using the ejusdem generis rule of interpretation, the Supreme Court held that the phrase “any form of corrupt malpractices” in section 46 of the EFCC Act, can only be interpreted to include financial crimes because the preceding categories of offenses listed before the phrase, are all financial offenses. My lord Tijjani Abubakar JSC beautifully held as follows:

"Any form of corrupt malpractices" must be construed within the context of the specific class which it follows, and must be confined to the particular class. In my humble view therefore, the legislature thought it is proper and for right and good reasons, to place the general expression "any other form of corrupt practices" to come after the offences "embezzlement", "bribery" and "looting" and same must be confined to such specific words and not to expand, extend or elongate it to accommodate any corrupt malpractices at large… I do not think it will be safe to regard the offence of attempt to pervert the course of justice which the Appellant was convicted for, where it has not been shown that it was committed with the objective of earning wealth, and be regarded as an economic and financial crime, thereby vesting the power to investigate and prosecute in the Economic and Financial Crimes Commission….

Interestingly, if you look at Section 6 paragraphs (b)- (p) of the EFCC Act which prescribed its functions, the words “economic and financial crimes” or “financial crimes” were deliberately re-echoed by the legislature in 16 out of the 18 subsections. Also, Section 7 of the EFCC Act which defines its powers further limits it to only “economic and financial crimes”. A case in point is section 7 (2) (f) of the EFCC Act which provides that the Commission is charged with the responsibility of enforcing the provisions of:

“Any other law or regulations relating to economic and financial crimes, including the Criminal code or penal code”

It is important to note that there are several corrupt related offences under both the Penal Code and the Criminal Code but the draftsman limits EFCC to only what relates to “economic and financial crimes.” A combined reading of sections 6, 7 and 46 of the EFCC Act, will therefore leave one with no doubt that EFCC can only investigate and prosecute economic and financial crimes. Other offences are for other agencies such as the police to investigate and prosecute. The rationale behind limiting the scope and powers of the EFCC was aptly capture by my lord, Tijjani Abubakar JSC as follows:

"…If the literal meaning is adopted, it means that the powers of the EFCC will be at large and open ended, because by that interpretation, every criminal and illicit activity committed will fall within the scope of "corrupt malpractices" and consequently be regarded as an economic and financial crime, which the EFCC will be empowered to investigate, so doing will make a pigmy of other legislations and render them barren and sterile. Again, if the definition of "corrupt malpractices" is not properly defined and demarcated, the Economic and Financial Crimes Commission will assume some supernatural strength as to render it all in all, thereby dwarfing other similar Agencies vested with powers to investigate and prosecute criminal offences, and bring the EFCC assume the corresponding powers of the Chief Law Officer of the Country. Such open-ended powers if not defined will escalate the status of the Agency to that of a ruthless ungovernable monster, I am sure this is not the intention of the legislature necessitating the establishment of the EFCC and enacting the Act…”

EFFECT OF THE JUDGMENT AND LESSONS TO LEARN

The first point I wish to make, is that there was nothing in the entire judgment of the Supreme Court (ratio or orbiter) which suggested that EFCC does not have powers to prosecute financial crimes committed in a state or on State funds. In fact, section 7 (2) (f) of the EFCC Act empowers it to prosecute financial offenses in “any other law or regulation relating to economic and financial crimes including the CRIMINAL CODE and PENAL CODE.”

The judgment also reminded the EFCC that its powers are not without limits. Recently, we have seen the EFCC trying to be everywhere, doing things they are not by law empowered to do. Converting civil cases to criminal cases as can be seen in the cases of Diamond Bank v. HRH Eze & Ors (2018) LPELR 439070 (SC) and FRN v. Ojo & Anor (2018) LPELR (2018) 45541 (CA). Becoming debt collectors and gradually forgetting the purpose for which it was established; becoming Jack of all trades as aptly captured Per Abimbola JSC in FRN v Ojo.

In hindsight, it was because the institutions we had (before EFCC was established) fighting corruption were inadequate in combating financial crimes that the EFCC was created with a specific target to bring an end to economic and financial crimes which hampered the development of the country.

Remarkably, the judgment reminded us why and how the EFCC was created beyond its establishment Act. It was the United Nations Convention Against Corruption, brought to light by The United Nations General Assembly Resolution 58/4 of 31st October 2003, that first conceived for developing countries, the idea to establish an agency of that nature in order to tackle economic and financial offenses that has become an albatross in their fragile necks. Nigeria adopted the Convention (with modifications to suit its context) and established the EFCC. The Supreme Court reproduced part of the statements made by Kofi Anan, the then Secretary-General of the United Nations at the General Assembly. The statements clarified it all. It is always good to look back in order to understand where we are heading to. Otherwise, we would forget why we even Set off for the journey in the first place.

Before I conclude, I must say that the EFCC has, over the years, performed remarkably better than virtually all the agencies saddled with the responsibility of fighting corruption. However, as an agency established by law, unless it restricts its operations to only what it is sanctioned by law, it will continue to bite more than it can chew and end up either spitting it out or being choked to a coma. That would be bad for the system that established the agency in order to get rid of economic and financial crimes.

In any case, I do not think a solitary agency in Nigeria will have the capacity to prosecute all forms of corrupt malpractices at every level and department of government because there is corruption everywhere. The Supreme Court was therefore absolutely right in noting that other stakeholders like the Police, the Independent Corrupt Practices Commission (ICPC) etc. also have their legally defined roles in the fight against corruption. If the Supreme Court did not hold as it did, other agencies will become barren and redundant, as their powers will be usurped by the EFCC.

A few examples below will help us further understand why every agency created by law must limit its operations within its legally defined scope:

1. The Federal High Court for example cannot just assume jurisdiction over an appeal from magistrate court simply because state High Courts are unwilling to do it.

2. The National Industrial Court cannot entertain a maritime issue simply because the Federal High Court has failed to do it.

3. A Magistrate Court cannot entertain a Murder/Culpable Homicide case simply because the State High Court is not willing to do that.

They are all courts created by law but each has its limits in the same manner every other institution created by law no matter how similar they seem to be.

When someone leaves what he is asked to do for what he is not asked to do (like in the instant case), the motive automatically becomes questionable no matter how pure the intention is. I could not understand and still cannot find the nexus between EFCC and the offense of attempting to pervert the course of justice.

When an agency does what by law it is not permitted to do, the act is no doubt void, ultra vires, and an exercise in futility. The country’s resources are wasted in the process. For example, prosecuting a matter from the trial court to the apex court with state resources, only to be told at the final bus stop that, “you were not supposed to do that in the first place and so, we would not take it from you.” That is clear evidence of years of wasted effort and resources.

Another important lesson learnt from the judgment was that for us to have a meaningful and lasting solution to each of our problems, we must address each problem from its root. Otherwise, a seemingly recurring minute problem if not addressed from the root and on time, will one day become bigger, complicated and overwhelming. A stitch in time they say, saves nine.

It is therefore better that each agency should continue to function within the limits of the law. Only then will we continue to make meaningful progress and only then would we be able to know which agency is not doing well in order to make an informed decision. All the agencies were deliberately created and their powers were also deliberately defined by the laws creating them.


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