Anti-graft war: Will calls for unbundling of EFCC, ICPC succeed?

Following continuous calls from different quarters for the scrapping and unbundling of the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC), YEJIDE GBENGA-OGUNDARE, in this piece explores the various arguments of lawyers on whether the sister agencies are still relevant and the reforms needed in the fight against corruption.

In January, a former president of Nigeria Bar Association (NBA) and rights activist, Olisa Agbakoba (SAN), had called for the scrapping of the anti-graft agency, the Economic and Financial Crimes Commission (EFCC), during the battle between the Kogi State government and the agency, threatening to drag the EFCC before the Supreme Court to determine if it was empowered to investigate activities of the state governments.

He had argued that since the EFCC is a creation of the National Assembly, it does not have the powers to interfere with the activities of state governments, insisting that the 1999 Constitution only provided one police force for Nigeria, so that since the Anti-graft agency is not a branch of the police, it could not perform its functions.

He pointed out that the EFCC remains a Federal establishment created by the national assembly, adding that under Section 4 of the 1999 Constitution, the powers of government were divided into two: the federal and the state.

“Anybody can read Section 46 of the EFCC Act and Section 36(12) of the 1999 Constitution. Section 36(12) states that all offences must be defined and when you now read Section 46, you ask yourself if it complies with Section 36(12) because it does not; so, part of the prayers I will seek in court is that EFCC ought not to exist in the first place because it is not a branch of the police and that the job done by the EFCC is the same one being done by the Police Special Fraud Unit,” he had said then.

He however wasn’t the first person to express this sentiment. In April 2012, the Federal Government was asked to scrap the EFCC, its sister agency, the Independent Corrupt Practices and Other Related Offences Commission (ICPC) as well as 375 agencies of the government on the ground of perceived inefficiency and replication of duties at a huge cost on the nation’s purse.

The Presidential Committee on the Rationalisation and Restructuring of Federal Government Parastatals, Commissions and Agencies made this call in its 800-paged report which recommended the reduction of the nation’s ministries, departments and agencies (MDAs) which are 541 in number, to 163.

The committee led by the former Head of Service, Steve Oronsaye, during the submission of the report, recommended the outright scrapping of the anti-graft agencies (EFCC and ICPC) which it claims are performing the traditional functions of the Nigeria Police Force.

Affirming that over the years, the Police force has failed at such duties of fighting corruption the committee questioned why the chairman of the EFCC is still appointed from the police and why the methodology adopted by the ICPC in conducting investigations as well as the training of its personnel are carried out by the police.

The report ponders “if it was really expedient to dismember the Nigeria Police rather than allow it to evolve as a vibrant and effective agency.”

Mr Oronsaye in his presentation to the president noted that “an institution is inefficient and ineffective should not be a basis for the creation of new ones”, adding that “it is a breach of acceptable practice of good public sector governance to create a new agency or institution as a response to the poor performance of an existing agency just to suit political or individual interests.”

He pointed out that the unnecessary duplication of the functions of agencies and parastatals puts the average cost of governance in Nigeria among the highest in the world.

While many people especially lawyers agreed that the EFCC and ICPC had outlived its usefulness, some eminent Nigerians had following the submission if the report said the suggestions were baseless. In 2012, the Chairman of Senate Committee on Drugs, Narcotics and Anti-Corruption, Senator Victor Lar, described the recommendation by the Oronsaye-led committee as “an absolute nonsense and retrogression,” arguing that instead of discarding the two anti-graft agencies, more bodies should be created if the country is to win the war against corruption.

According to Lar, the agencies were created by an Act of the National Assembly, adding that it was only the National Assembly that had the power to reduce the number of government agencies. To him, what the presidency had done has no effect except the laws establishing the agencies were amended or repelled.

Others also faulted Oronsaye’s recommendation; they included two past chairmen of the ICPC, Justices Mustapha Akanbi and Emmanuel Ayoola. They had argued that scrapping the anti-graft bodies would weaken the fight against corruption, noting that the ICPC and EFCC would not have been created had the police been effective in tackling corruption cases in the country.

While Akanbi explained that the mirage of security challenges facing the country makes the creation of these agencies imperative, Ayoola, in his own reaction, said that scrapping the agencies is not the right solution. Instead, he called for strengthening of the institutions for better performance, especially in the wake of new incidences of corruption in the country.

The issues of unbundling of the EFCC and its sister agency, the ICPC, had been a raging conversation spanning decades and continues to rear its head at regular intervals over the course of the last 10 years. And rather than abate, it comes up louder and in unexpected quarters.

One of such was during the ministerial screening of the current set of ministers by the National Assembly, when the Attorney-General and Minister of Justice, Prince Lateef Fagbemi (SAN), was being screened, he was asked questions bordering on Nigeria’s seemingly endemic corruption and how the Federal Government can bring the anti-graft war back on track.

While Prince Fagbemi did not ask that the EFCC be scrapped or unbundled, he had expressed the sentiment that many people had held in the past that it is abnormal for an agency to carry out investigation and also be the prosecutor, asking that it will lead to problems, so that the EFCC and ICPC should be merged.

He had suggested that there should be a supervisory authority within the system to oversee the new agency’s operations, adding that “It doesn’t augur well to ask the same authority to do an investigation and carry out prosecution. That is why we have problems. If I have my way, first of all, bring ICPC and EFCC together, unbundle them. An investigation should not be handled by the same body.

“The tradition of arresting a suspect before an investigation was not ideal. In corruption matters, you can take your time to prosecute but when you knock, it should be like the way an average American will react when the FBI knocks at your door; you will be surprised at what they have on you. My advice would be that, in matters of law, the Attorney-General of the Federation should be involved. DSS cannot be an island unto itself; EFCC cannot continue to behave as if there is no law. There is a law.

“And if you want to do an investigation, do it before inviting the accused person. It is not a question of inviting a man and saying: ‘We have caught a big fish’, then at the end of the day you say you are investigating. That also goes to the issue of the pace at which the cause of justice travels. It can be slow, but it’s very sure. You do your investigation before arrest and not arrest before investigation,” he contended.

Fagbemi and Agbakoba are not lone voices in the call for the scrapping or unbundling of the anti-graft agencies, many others have expressed the same sentiment at different periods. While calling for the scrap of the EFCC and describing it as part of the corruption problem in Nigeria, a public commentator, Olu Fasan, had in a writeup asked “If in 2023, Nigeria still ranks as a highly corrupt country, what exactly has EFCC been doing over the past 20 years? Why has it not moved the dial on corruption?”

According to Fasan, successive leaders of the EFCC since its inception have not been above board or beyond reproach, and the institution itself has failed abysmally to reduce, let alone stop, corruption in Nigeria and “The easy answer is: ‘the Nigerian factor’. The logic goes thus: if corruption is so endemic and widespread in Nigeria, then it’s futile to expect any institution manned by Nigerians to tackle it. Are those running the EFCC not Nigerians? Are they not part of Nigeria’s deeply corrupt ecosystem? So, why expect them to have different values, norms and motivation from the wider society? The same logic applies to the Independent National Electoral Commission, (INEC); the judiciary and other state agencies.

We often hear allegations of corruption and money laundering running into hundreds of billions of naira against governors, ministers and other public officers. But they almost always fizzle out. Just as politicians rig elections and tell their opponents to go to court, they loot the public purse and dare EFCC to do its worst. Sadly, the EFCC is a toothless bulldog! Yet, if Nigeria must succeed, it must root out corruption and not normalise it! To that end, Nigeria must introduce an Unexplained Wealth Order, UWO, and reverse the burden of proof in corruption cases. UWO means that if a public officer can’t explain the source of his excessive wealth, he will forfeit it. And reversing the burden of proof means the onus is on anyone accused of massive corruption to prove innocence. With those tools, all Nigeria needs is an independent Office of Public Prosecutor, not the moribund, ineffectual EFCC”

 

Lawyers take

Following Fagbemi’s proposal, the conversation about the EFCC got a new lease and more lawyers also lent their voice to the call. For Agbakoba, it was a period to reinforce his call based on the belief that unbundling the EFCC and ICPC is long overdue. He had agreed with Prince Fagbemi on the need to unbundle the two agencies of the government, noting that the Supreme Court had continuously criticised our legal enforcement framework.

“I would even go further than Lateef Fagbemi to suggest that apart from merging the ICPC and EFCC, three critical functions of investigation, prosecution and assets recovery must be separated to maximise efficiency,” he had added.

Dr Fassy Yusuf also agreed with Fagbemi to an extent but had expressed the view that there is the need to get the legal framework right in terms of a constitutional amendment so that the ideas can be seamlessly implemented, emphasising that the suggestion requires amending the constitution and other laws. “To a large extent, I am tempted to agree with Prince Lateef Fagbemi (SAN) on his position. The doctrines on the separation of authorities or separation of responsibilities should be what we should be pursuing in this country now because of abuse of powers, abuse of responsibilities.

“Ordinarily, there should be no problem about what Prince Fagbemi is advocating. But the practicality, the execution, might be difficult to attain in this part of the world. We see the submission at some levels like the high court where the Police are the prosecution and through them, the files are sent to the Ministry of Justice for the DPP’s advice. That one would determine whether a prima facie case has been established or not.”

On his part, a prosecutor with the anti-graft agency, Wahab Shittu (SAN) had said he watched and approved of Fagbemi’s “stellar outing” at the senate screening exercise for ministerial nominees, adding that “I agreed completely with his view on the need to strengthen the quality of our investigation process to deliver quality outcomes. I also endorsed his view that emphasis should shift to investigation-led arrest rather than arrest-led investigation. This is the norm in advanced democracies around the world. It does not make sense in making arrests before fishing for evidence.

“This lofty suggestion may create practical problems of implementations. The two anti-graft bodies are regulated by separate legislation. The merger cannot take place without tinkering with existing legislation. This will mean introducing an Executive bill to the legislature and will appear a very tedious process of actualisation. I will rather advise the strengthening of the two bodies in terms of funding, technical competence, capacity, professionalism and integrity to focus on the rule of law in their operations.

“I will also advise constant synergy between these bodies and the Attorney General of the Federation and Minister of Justice in terms of working together and not at cross purposes to deliver on the anti-corruption agenda of the administration,” Shittu added.

 

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