Setting up assets recovery committee, guided by law ― Malami
The Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) has said he acted in compliance with extant laws in setting up the recently inaugurated Inter-Ministerial Asset Disposal Committee.
Malami who stated this on Tuesday, in a statement issued by his Special Adviser on Media and Public Relations, Dr Umar Gwandu, noted that a “Community reading of the provisions of Section 31(1-4) and Sections 43 of the EFCC Establishment Act 2004 will not only justify the action of the Minister but also clear doubts on the misconceived and shallow legal analysis in the public space on the legality or otherwise of the committee”.
According to Malami’s spokesman, lack of understanding of the law was imminent in the wrong impression being created which was fueled by the faulty assumption that only the EFCC is engaged in asset recovery and forfeiture proceedings, hence the challenge to the setting-up and mandate of the Committee.
In issuing regulations and setting-up Committee for Asset Disposal, he said the AGF was guided, amongst other statutory provisions, by the wordings of Sections 31(4) & 43 of the EFCC Act which confers the AGF with the powers to make Rules or Regulations with respect to the exercise of any of the duties, functions or powers of the EFCC (inclusive of asset disposal).
Section 43 of the EFFC Act provides that: “The Attorney-General of the Federation may make rules or regulations with respect to the exercise of any of the duties, functions or powers of the commission under this Act”.
The statement said it is elementary law that the process of asset forfeiture and disposal constitutes part and parcel of criminal prosecution and that It is also trite law that all prosecuting agencies derive their powers to prosecute from that of the constitutional and statutory powers of the AGF.
“The powers of the EFCC is constitutionally subject to the overriding powers of the AGF. It is important to note that asset forfeiture and disposal is a continuation of criminal proceedings and in furtherance of the powers conferred on the Hon. Attorney General of the Federation under Section 150(1) of the 1999 Constitution (as amended) as the Chief Law Officer of the Federation.
“Section 174(1)(b) of the 1999 Constitution (as amended) grants him the exclusive power “to take over and continue any such criminal proceedings that may have been instituted by any other authority or person;”
Gwandu noted that the AGF on is on firm legal grounds to regulate the process of asset forfeiture and disposal from the EFCC or any other agency.
He said, “Whilst the Constitution has provided some safety nets on the above incontestable position by providing that the Attorney General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process in exercising his powers, the foregoing still remains the Attorney General’s call to make. It is not in doubt that the disposal of forfeited assets is in the best interest of the public and justice. The Attorney General has a total responsibility to control and manage the conduct of criminal prosecutions.
“It is, therefore, standing logic on its head for anyone to suggest that a man who is empowered to initiate, takeover and discontinue any criminal proceeding instituted by any person or authority, make Rules for the disposal of forfeited assets and the general operations of the EFCC, and a custodian of public interest, the interest of justice and power to prevent abuse of legal process among others has no power to manage or deal with the outcomes of such proceedings (even when conducted by EFCC) either by way of forfeiture or disposal.
“The settled position of the law remains that a power or duty conferred by the Constitution cannot be taken away by any other law, as such will be declared null and void for inconsistency under Section 1(3) of the 1999 constitution”, he said and added that the powers of the AGF in criminal matters under the Constitution cannot be circumscribed or taken away by the provisions of Section 31(1-3) & 32(1) of the EFCC Act.
The Inter-Agency Committee he said was constituted in recognition of the relevance and statutory mandates of the listed MDAs and also against the background of the need to provide synergy and coordination amongst all relevant MDAs in the pursuit of the common agenda of the government.