In Law & Human RightsComments By Ben Nwabueze, SAN Continues from Last week (e) taking charge of, supervising, controlling, coordinating all responsibilities functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes (emphasis supplied). (f) the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime related offences or the properties the value of which corresponds to such proceeds; Prof Nwabueze (g) the adoption of measures to eradicate the commission of economic and financial crimes; (h) the adoption of measures which include coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;(i) the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic financial crimes; (j) collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning, inter alia, the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved. The functions listed above seem clearly to indicate the EFCC as not just an executive authority, like a minister or a post-master, or as an extra-ministerial agency in the sense of section 171(2)(d) of the Constitution, but more essentially as a body exercising administrative or ministerial functions of a quasi-legislative or quasi-judicial nature. Far from being an extra-ministerial agency, whatever the term, as used in section 171(2)(d), means, the EFCC is not only independent of the control and direction of any ministry or department of government, it stands above them as regards the investigation and enforcement of economic and financial crimes. This follows by implications from the EFCC powers. First, the words “shall be responsible” in section 6 of the EFCC Act imply and seem in the context clearly intended to imply that the powers thereby conferred on the Commission exclude identical power in any other person or authority. The intended effect is to make the Commission the sole or pre-eminent authority for the enforcement of all economic and financial crimes, as defined in section 46 of the Act. To the extent that the powers of the EFCC for the enforcement of economic and financial crimes laws do not exclude those of other authorities or persons, the latter are subjected to its supervision or control, and can only have and exercise subordinate power.
The subjection or subordination arises from the words “shall be responsible” as well as from the phrase “the co-ordination of enforcement functions conferred on any other person or authority” in section 6(c) (emphasis supplied), and, more explicitly and unequivocally, the phrase “taking charge of, supervising, controlling, co-ordinating all responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes” in section 6(m) (emphasis supplied). The power of co-ordination, supervision and control vested in the EFCC is not only unequivocal but also under-scores the super-eminent authority of the Commission. The second implication of the powers of the EFCC is far graver. It lies in the fact that the EFCC is not only the supervising authority for the enforcement of economic and financial crimes laws, but also the words “shall be responsible” in section 6 of its constituent Act have the effect of putting at its disposal for the purpose, the use of the entire organized coercive force of the Nigerian state represented by the Nigeria Police Force (NPF), with the Commission’s Chairman supplanting for that purpose the Inspector General of Police (IGP) as its commander. As regards the use of the Nigeria Police Force for the investigation and prosecution of economic and financial crimes, the IGP is now placed under the supervision and control of the Commission’s Chairman. He cannot stop the latter from using the police force for the investigation, prosecution and enforcement generally of economic and financial crimes, however much he may think the use of the force in any particular case to be illegal or otherwise unjustified.
Third, not only is the Nigerian state’s entire organised instrument of physical coercion or violence put at the disposal of the Commission for the enforcement of economic and financial crimes, but it is also provided as follows in section 8(5) of the EFCC Act: “For the purpose of carrying out or enforcing the provisions of this Act, all officers of the Commission involved in the enforcement of the provisions of this Act shall have the same powers, authorities and privileges (including power to bear arms) as are given by law to members of the Nigeria Police” – emphasis supplied. By this provision, which was not in the original 2002 Act but was only added in 2004, the officers of the Commission concerned are constituted into a separate police force in clear violation and subversion of the prohibition in section 214(1) of the Constitution that “no other police force shall be established for the Federation or any part thereof.” Fourth, the provisions in section 6 of the Act quoted above derogate from the Attorney-General’s control over all criminal prosecutions vested in him by section 174 of the Constitution (section 211 in the case of the Attorney-General of a State).
In respect of economic and financial crimes, he cannot now “institute or undertake criminal proceedings” or “take over and continue any such criminal proceedings” instituted by the Commission or any other person or authority any more than he can discontinue them. He is now placed under the supervision and control of the Commission’s Chairman and has ceased to be the controller as regards prosecutions of economic and financial crimes. Interest of justice As the authority in control of all prosecutions of economic and financial crimes, the Commission (or its Chairman), in the exercise of that power, is not bound, as the Attorney-General is bound, to have “regard to the public interest, the interest of justice and the need to prevent abuse of legal process”, as provided in section 174(3) of the Constitution (section 211(3) in the case of the Attorney-General of a State).
These provisions making the EFCC “responsible for the enforcement of all economic and financial crimes laws” constitute it a unique law – enforcement agency altogether different from other law – enforcement agencies, like the Customs, Immigration and Prison Services established by their respective statutes: see the Immigration and Prison Services Board Act, cap 12, Laws of the Fedn 2004; Nigerian Customs Service Board Act cap. 100; Customs and Excise Management Act, cap C45. Given the character of the EFCC as determined by the functions conferred on it by statute, and by its independence from control or direction by any ministry or department of government, sections 2(3) and 3(2) of its Act are within the power of the National Assembly to enact, and are not an unconstitutional interference with executive power under the doctrine of separation of powers underlying the Constitution. The Humphrey case is important for another reason; it defines for us what constitutes a violation of the doctrine of separation of powers. In the memorable words of the Court: “The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and it is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the constitution and in the rule which recognizes their essential co-equality.
The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there…..The independence of each department requires that its proceedings shall be free from the remotest influence, direct or indirect, of either of the other two powers” (emphasis supplied). The controversy as to whether the executive power vested in the President embraces the appointment and removal of staff of the National Assembly and the Judiciary is examined in my recently published book titled Save Our Constitutional Democracy from Emasculation (2017) pages 332 – 33