EFCC is a corporation sole. As a persona ficta at law, its establishing statute empowers it to sue and be sued in its name. But its powers are subject to the control of the Federal Attorney General and Minister of Justice (AG). The AG’s powers are not only derivable from the statute they are also derivable from the constitution, the ultimate norm. In law the AG is awesomely described as a law unto himself. This was why most lawyers were incensed when the then Chairman of EFCC, Barrister Nuhu Ribadu stated that the Commission was not subject to the control of the Federal AG, but was subject to the control of the National Assembly.
The current chair of EFCC is not only an experienced retired Assistant Inspector General of Police (AIG); she is also a lawyer of many years standing. She clearly understands the position of the Commission in relation to the powers of the AG. She also appreciates her handicap where such powers are not judiciously used. The functions of both, however, are not composite as far as criminal law and its enforcement are concerned. Interest of the society is paramount in their functions. In the context of this write up such functions are to ensure that tax payers money are not diverted for personal aggrandizements
Corruption in Nigeria has become so widespread with its depleting effect on the economic development of the country that insistence on legalism in the war against it may at times be counterproductive. The war against financial crimes and graft requires that all the relevant agencies responsible for the enforcement of all anti graft laws must remove their gloves and, hit the monster with bare fist.
Corruption, financial crimes and other related offences are criminal acts and, no one doubts the overriding powers of the AG in all criminal cases. It is both his constitutional and statutory duties to ensure that in the enforcement of all criminal laws regard must be had to due process, interest of justice and the need to prevent abuse of due process.
EFCC being the organ charged with the enforcement of the EFCC Act and, all other laws relating to financial crimes, is responsible for investigation and, eventual arraignment of all those it has cause to investigate. It should be noted that the Commission’s method of investigation is forensic involving experts in the wide field of criminal justice. Therefore, where it decides that a person has a case to answer such a decision is a serious indictment, though it is not a determinant of guilt.
The question arising from the above is the justification of allowing persons so indicted to have the right to stand for elective positions on the grounds that they are still presumed to be innocent in the eyes of the law until the contrary is proved. It is submitted that presumption of innocence is not a sole determinant of guilt prior trial because a careful look at the facts which constitute such indictments may reveal prima facie, strong connection of the person or persons so indicted to the allegations as charged.
The danger of allowing such persons to have uninhibited right to seek for election is the fact that they may be returned back to their previous positions, where the business as usual will continue. There is also the possibility of some of them going back to positions which will cloth them with immunity. In that case the instant indictment has to be put on hold for a considerable number of years. Memory, it is said, fades with time. Evidence against them may fizzle away or tampered with. Vital witnesses may no longer be available when eventually their prosecution (if at all) starts. This, to me, is not a good way to fight corruption. It is doubtful if the privileges been accorded to those on the advisory list (as the AG’s over heating the polity proposition seems to suggest) can pass the test of international best practices on the war against corruption.
With due respect to the AG his reasoning that enforcing the recommendation of the Commission against those on the advisory list is capable of over heating the polity is mistaken. Such proposition does not present the state as serious in combating and preventing corruption. It is a tacit way of promoting corruption, which I believe, is unintended. Equally, it is capable of demoralizing the Commission. Corruption is a monster. It has draconian powers. If anti-graft agencies are made to look at this monster with awe, then the fight should be given to corruption.
Corruption has a way of fighting back. And this reaction will always over heat the polity. But the goal of the state should be to fight back ferociously no matter the cajoleries employed by corruption. This explains the contention that the war against corruption in some cases should not be muzzled on the altar of legal finesse.
I think the AG as the chief law officer of the federation should insist on due prosecution of all those on the advisory list submitted by EFCC. But in the mean time it would be a mockery of the war against corruption to allow such persons to stand for elections during the forthcoming general election. Even in contract of employment employees facing criminal charges are interdicted. The war against corruption must be transparent and, to frighten anti-graft agencies of over heating the polity is suggestive that the indictment in the first place is an afterthought with an ulterior motive.
All organized crimes have a way of fighting back. An example is the Boko Haram faithful and their conducts since their dislodgment. Acts of confederates in kidnappings are another example of how parties to a crime can always fight back even when their back bones have been broken. Powerful people who have amazed enormous wealth through official corruption and, other scams, for sure, will attempt to over heat the polity with the sole aim of frustrating any criminal process initiated against them. Bala Usman of blessed memory, once said, fight corruption or corruption will fight you. He made this statement when the Anti Corruption Act 2000 debuted.
If the state with all the coercive powers at its disposal is afraid of the reactions of some powerful people who are made to face the fall out of their involvement in criminality then the war against corruption becomes selective. This is a clear infraction of constitutional provision of equality before the law, and a salutary reminder that some people are above the law.