Does the Senate need to carry out an amendment on the EFCC (Establishment) Act 2004? Lawyers say no, yes. AKEEM NAFIU reports
After a botched attempt by the 8th National Assembly to amend the EFCC (Establishment) Act 2004, the 9th National Assembly has again commenced moves to tinker with the legislation establishing the anti-graft agency. Some senior lawyers were, however, divided as to the desirability of the latest move by the lawmakers.
Those opposing the move believe that should the lawmakers’ position scale through and the Bill become law, it will spell doom for the antigraft war of Buhari’s administration. However, the proponent of the move believes the lawmakers’ action is highly desirable to checkmate some of the excesses of the anti-graft agency.
Similar attempt to amend the legislation which birthed the EFCC by the immediate past National Assembly was unsuccessful.
Although the amendment to the EFCC Act has been in the offing since 2015, there was a renewed agitation to carry out the task by lawmakers at the Red Chambers at the twilight of their tenure. However, the amendment to the Act had earlier been successfully carried out at the Green Chambers.
The passage followed the adoption of the report by the House Committee on Financial Crimes. Although several amendments were carried out on the Act, the only controversial one was Section 2, which comprised composition of the commission. Prior to the amendments, Section 2 reads:
“(1) The commission shall consist of the following members: (a) a chairman, who shall (i) be the Chief Executive and Financial Officer of the commission; (ii) be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or equivalent; and (iii) possess not less than 15 years cognate experience.”
However, the new amendment reads:
“(a) A Chairman, who shall (i) be a retired or serving member of any government security or law enforcement agency not below the rank of Assistant Inspector-General (AIG) of Police or an equivalent and possessing not less than 20 years cognate experience; (ii) a legal practitioner with at least 20 years post-call experience.” In its amendment, the House also removed the Secretary of the EFCC from tenured offices in the leadership of the commission.
On the qualifications to be considered in the appointment of the EFCC Secretary, paragraph “e” was added to Section 8(1), which reads, “A person who is qualified to practise as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.”
An amendment was also made to Section 27(4), making it compulsory for the EFCC to obtain ex-parte order from court before seizing suspected assets.
The ex-parte order clause will deny the EFCC the powers to invoke the interim forfeiture clause in its Act without recourse to the court. The House also deleted Section 1(2) relating to the Nigerian Financial Intelligence Unit, which has now been domiciled with the Central Bank of Nigeria as demanded by the EGMONT Group, from the EFCC Act.
The whole provisions of Sections 19, 20, 22, 23, 24, 25, 26 and 34 of EFCC Act that give EFCC power to trace, forfeit, manage and confiscate were also completely deleted from the amendment bill. NASS’ renewed bid for amendment Lawmakers at the House of Representatives have again commenced moves to amend the Economic and Financial Crimes Commission’s (EFCC) Act.
The planned amendment to the EFCC Act would allow the President to pick the executive chairman of the anti-graft agency from any of the security agencies as against what currently obtains where only the police force is allowed to produce the EFCC chairman.
The Bill sponsored by Hon. Olawale Raji has scaled through the second reading. In a lead debate on the general principles of the Bill, the lawmaker said the Bill if it became law, it will make a serving or retired member of any government security or a judge of a superior court eligible to be chairman of the EFCC.
He said: “Section 2 subsection (1) paragraph (a)(ii) of the Principal Act is deleted and same replaced with a new paragraph to read as follows: ”Be a serving or retired member of any government security or law enforcement agency not below the rank of Commissioner of Police or equivalent; or a person who has held or eligible to hold office as a Judge of a Superior Court of record in Nigeria; or a person with recognized financial experience and proven integrity either in the public or private sector”.
The Senate has also sought the input of Nigerians in amending the Act. Its spokesperson, Ajibola Basiru, while making the call said the Red Chambers was determined to carry out necessary amendment to the legislation setting up the EFCC.
According to him, Nigerians’ input was highly desirable as the lawmakers would not all alone carry out the task. He said: “If any group or groups think there is the need to amend the EFCC (Establishment) Act 2004, they should come up with the amendment they are suggesting. The National Assembly is receptive to any view, opinion and suggestion.
They should compile the aspects of the Act they want to be amended and forward it to their representatives in the National Assembly so that it would be presented as a private member Bill.
“Alternatively, they could send it in form of a memo to the office of the Attorney General of the Federation so that it would be presented to the National Assembly as an executive Bill. The National Assembly may not know what exactly those seeking the amendment want, that is why we are calling on them to come up with their recommendations.
“Since the Bill on the amendment to the Act that was introduced by the House of Representatives in the 8th Assembly was not passed, a new one has to come up.”
NGO, lawyers speak
A rights organization, the Socio- Economic Rights and Accountability Project (SERAP) and some senior lawyers have in the meantime been reacting to the renewed bid by the National Assembly to amend the EFCC (Establishment) Act 2004.
SERAP and some of the lawyers were highly critical of the lawmakers’ move, saying aside derailing the anti-graft war, also the planned amendment would undermine the independence, integrity and freedom of action of the EFCC. However, other lawyers in support of the amendment lauded the National Assembly’s initiative.
They said the action would further enhance the anti-graft war of Buhari’s administration. In its comment on the issue, SERAP sought the immediate withdrawal of the Bill by President Muhammadu Buhari through the Attorney-General of the Federation (AGF), Abubakar Malami (SAN).
In a letter signed by its Deputy Director, Kolawole Oluwadare, which was addressed to the president, the organization said should the Bill become law, it would severely undermine EFCC’s independence and render it useless. SERAP while expressing concerns about its intent, noted that the Bill was designed to undermine the independence, integrity and freedom of action of anti-corruption agencies, ignores the seriousness of grand corruption and its impact on Nigerians’ human rights, the rule of law, principles of good governance, development, as well as the threat corruption poses to the country’s constitutional order.
“By pushing to turn the EFCC into a department in the Federal Ministry of Justice, and effectively bring it under the control of the Attorney- General; and to subject the appointment of the agency’s head to the approval of the Directorate of State Security, your government would seem to indicate that it is not interested in combating corruption and halting its putrefying effects”, SERAP said
. In his own views, Chairman of the Presidential Advisory Committee Against Corruption (PACAC), Prof. Itse Sagay (SAN), described the Bill as a fraud and asked Nigerians and the National Assembly to reject it. He opined that the planned amendment was part of a sinister and dangerous attempt by certain individuals to demolish the anti-corruption infrastructure of Nigeria and return it to the situation it was in during the dark days before 2015.
Sagay said the proposed Bill would effectively turn the EFCC into a department in the Federal Ministry of Justice and thus eliminate the anti-graft agency’s “freedom and autonomy” and replace it with “an entity under the complete control of the Minister of Justice and Attorney-General.”
He alleged that those behind the Bill “are enemies of Nigeria and representatives of the corrupt establishment that brought this country to its knees and subjected us to humiliation as a result of an extremely negative reputation internationally”.
He said: “Offensive highlights of the proposed Bill include, repeal of the current EFCC Establishment Act which has been a spectacular success and has brought Nigeria into limelight as a major force against corruption; the replacement of the Executive Chairman of the EFCC with a Director-General who is effectively to be appointed by the Attorney-General.
“This eliminates the EFCC’s freedom and autonomy and replaces it with an entity under the complete control of the Minister of Justice and Attorney-General; the replacement of the Board of EFCC with Directors who are effectively to be appointees of the Attorney-General; and the elimination of the position of the Secretary of the EFCC, a critical officer who serves as the institutional memory and the Administrative Head of the Agency.
“Section 11 of this Proposed Act provides that nobody may be appointed or seconded to the new Agency being proposed, unless he is first screened by the Directorate of State Security and approved by the said Agency.
Under the proposed Act the Annual Report of the EFCC is not to be submitted to the National Assembly until it has been passed through the Attorney-General for onward transmission to the National Assembly; thus making the Attorney-General, the reporting officer of the Agency rather than the Chairman or the Director-General, as the new Bill is proposing.
“With all the above-established facts, the gravity of the proposed change becomes overwhelming. When in addition to all these, we recall the well-known proclivity of the Attorney-General for entering ‘nolle prosequi’ in favour of major political and governmental figures, this move to effectively scrap the EFCC becomes more alarming.
“We, therefore, call on the National Assembly and all Nigerians to vigorously reject this attempt to perpetrate a fraud on the nation by effectively scuttling the EFCC and shutting down Nigeria’s anticorruption war”. Sagay was echoed by a rights activist, Mr. Kabir Akingbolu, who also expressed his disapproval for the planned amendment.
“The plan by the AGF to whittle down the power of the EFCC is an unfortunate one and a clear attempt to undermine the very essence of the agency and by extension the end of the corruption fighting mantra of the Buhari led administration.
“For crying out loud, the AGF is at the center of the controversy, nothing is being done about it but the attention of the AGF whom many people, especially the NBA, are levelling allegations of corruption and other malfeasances has suddenly moved and attached to amendment of the EFCC enabling Act to whittle down the powers of the EFCC, perhaps to bring it under his control more than ever before.
This is bad and highly distasteful. “I make bold to say this because once the independence of the EFCC is tampered with beyond what it is today, we are back in Egypt as far as corruption is concerned.
In fact, it means the very carrot dangled before us to vote for the president has become sour. It is a pity and I pray the AGF does not succeed in this assignment, but if he does, posterity will judge our leaders to have condoned illegality.
“This is a very dangerous move by the AGF and it is undoubtedly self-serving and face-saving so that he can trudge on unscathed despite all the foibles allegedly attached to him.
The idea is to sweep every allegation of misdeeds against the AGF or some notable politicians and allies under the carpet to wake no more. God save my country,” he said. However, expressing contrary views, a Senior Advocate of Nigeria (SAN), Chief Mike Ozekhome, threw his weight behind the planned amendment. He said: “I am in support of drastic amendments in the Act.
I’ve already made known to the Salami panel and the whole world my 33 recommendations towards revamping, rejigging and re-engineering, not only the EFCC Act, but also the near moribund, corrupt, vindictive, persecutory, sectional, nepotic, and clueless anti- corruption fight that wears no human face, but the hideous and inhumane face of a cruel monster.” The convener, Mission Against Injustice in Nigeria (MAIN), Mr. Ige Asemudara, was also in support of the moves by the National Assembly to amend the EFCC’s Act. He, however, called for caution on the part of the lawmakers in carrying out the task. “The EFCC Act like many other Nigerian legislation is not perfect or up to date. It requires amendment in few areas but not an amendment to dilute the powers of the commission with a view to asphyxiate it and put it under leech. “It is not necessary to create another agency from that commission. We do not need another anti-graft agency. What we need is commitment to the efficiency and effectiveness of the ones we already have.
And this is not to say that I agree with the illicit way Magu and his men have managed the agency and its fortunes in the past few years. “For instance, I believe that the EFCC should report to the Honourable Attorney-General of the Federation being the office to which the Constitution has donated the prosecutorial powers of the state and in fact the chief law officer of the federation. However, it is our duty as a nation to insist that every occupant of that office should indeed be honourable.
“On what impact the amendment will have on the anti-corruption war of the Buhari regime, I do not think the regime is fighting any anti-corruption war. What Buhari-APC regime is doing is to engage in propaganda, calumny and blackmail of key opposition figures using the EFCC and other government machineries.
“The government is involved in so much noise-making without any legitimate and critical action. It ought not to be like that. We must be able to tangibly relate with the gains of the campaign promises of this government. Alas, that is regrettably not the case. We are only counting time for Buhari to go. Maybe God will bless us with our own leader. We have suffered,” he said.