4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.
(4) In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say:-
(a) any matter 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; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
(5) If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.
Item 45 of the Exclusive Legislative List of the Constitution provides that the National Assembly has exclusive powers to make laws regarding:
“45. Police and other government security services established by law.”
The EFCC Law
The full title of the law as contained in the Statutes is; “Economic and Financial Crimes Commission (Establishment) Act 2002, Laws of the Federation of Nigeria. The Sub-title reads; ‘An Act to provide for the establishment of a Commission for Economic and Financial Crimes and for matters connected therewith’. It is dated 14th December, 2002 and recited as ‘Enacted by the National Assembly of the Federal Republic of Nigeria’. It was also signed on 13th December, 2002 by one Ibrahim Salim, CON, who certifies that in accordance with Section 2 (1) of the Acts authentication Act, Cap. 4, Laws of the Federation of Nigeria 1990, that this is a true copy of the Bill passed by both houses of the National Assembly.
The former Attorney General of Benue State, Liam T. Ge, Esq. opined that the State under the Separation of Powers Doctrine, like in the Plateau State precedent, has exclusive jurisdiction over state matters and records and documents in its possession. He further espoused the legal position that no Federal Agency has the power of search and seizure over the property of a State without the prior authority of a court of Competent jurisdiction in spite of the EFCC Act. On this point, Rommy Mom, Esq., the current Chairman of the Makurdi Branch of the Nigeria Bar Association is in agreement with the Benue State government, although he had through his Lawyers Alert network been a thorn in the side of the Benue State government on Constitutional issues. Joseph Abaagu, Esq. the current Attorney General of Benue State seeks to test in Constitutional Court, the powers of the EFCC investigators to swoop upon his state and by force of law conduct what he terms “a fishing expedition” and cart away documents belonging to his state.
The Power to Investigate
All the combatant legal luminaries concede to the EFCC the power to investigate inherent in an anti-crime Law Enforcement organization. The Attorney General of Benue’s grouse is that the EFCC did not follow due process. When further asked what due process would be in the current circumstance; he opined that the cops ought to bring forth the allegation and allow the accused persons a right of reply. The next question would be, in the case of an investigation regarding graft, abuse of office or other corruption by individuals, how does Benue State come in? Under the law, even the authority of the Nigeria Police falls under the Exclusive jurisdiction of the Federal Government, hence there are no States Police Organizations. For clarity, EFCC Act expressly makes provision for:
(h) the examination -and investigation of al1 reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved
What is hotly contested is the rational for investigation and the modus operandi. What are the trigger events to an EFCC federal investigation of a State or even Local Government in a separation of powers Republican Democracy where the extent of the powers of the two units of power base are constitutionally provided for in the Exclusive and Concurrent legislative Lists? Can all Economic crimes of Corruption, Fraud and others come under the jurisdiction of the EFCC? Can a Federal Agency have access without subpoena and/or warrant to search and seizure of all and any territory within Nigeria?
Perception of corruption in Benue
Economic and financial Crimes are committed when the state government is looted in graft, cronyism or non performance. Benue has 23 local government authorities. The gross statutory allocation for Benue state in the month of May as contained on the website of the Federal Ministry of Finance is N1,809,393,021.52. The total external debt recorded is N135,088,437.74. Other deductions listed of N28,422,038.05 therein is explained in the footnote to cover National Water Rehabilitation Projects, National Agricultural Technology Support Program, Payment for Fertilizer, State Water Supply Project and National Fadama Project.
Knowledgeable persons have accused tenure of the current government in Benue State of cronyism, cabalistic and non-performing waste. On the government side, I asked the current Attorney-General and commissioner of Justice, Joe Abaagu, Esq., he rated his government as ‘excellent’ in performance. He said they have built many bore-holes and launched some projects without fanfare. When I pressed for numbers he said they merit a 65-75% grade, in his own opinion.I asked The Chairman Makurdi branch of the Nigeria Bar Association, Rommy Mom, Esq., the same question; he gave Benue a failing 35% grade.
The Attorney-General confirmed that his administration has instituted a Benue States Contract Review Commission headed by Justice Joseph Tine Tur to look into the issues the EFCC was purportedly investigating; therefore the EFCC did not have any authority to come into their business.
Benue State has clearly demonstrated, in my opinion, why Nigeria needs the EFCC as an external Federal agency to investigate cases of graft, cronyism, conversion and outright looting of public resources, wherever found. The Benue State government no doubt has set review mechanisms for contract awards and payment. No doubt, contract sums are rarely, if ever, paid up-front; there is usually a draw-down period based on performance and evaluation of the contract stages. There are also persons employed and given the duty to monitor progress in keeping with best practices and monies released. If the contractors took the money and absconded, they committed crimes; if they performed below expectation, the supervisors should have done their job of assessment and stopped payment. That contract issues would have to be taken to a special commission shows, i
pso facto, a lack of accountability. Could it be that the contracts were given to party hacks and the payments shared out in the usual Nigerian practice without regard to performance of the job? Are the contracts a means of doling out patronage to party faithful? That is what the EFCC was set up to find out and stem. They should be allowed free access to do their job. Support the EFCC.
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