Legal Basis for the Existence and Relevance of the EFCC: A Reply to Olisa Agbakoba, by Kayode Oladele

I am privileged to read the interview given by Mr. Olisa Agbakoba (SAN) on 5th January 2023 about the relevance of EFCC in Nigeria. Before continuing my response to the opinion expressed by Mr. Agbakoba (SAN), it should be clarified that the Economic and Financial Crimes Commission (EFCC) is a Nigerian law enforcement agency established to investigate and prosecute economic and financial crimes, such as the EFCC was established in 2003, partly in response to pressure from the Financial Action Task Force on Money Laundering (FATF), which designated Nigeria as one of the 23 countries not concerned. -cooperative in the effort of the international community to fight against money laundering.

With all due respect, the position of Mr. Agbakoba (SAN) is more about legal sophistry than legal substance. His position does not represent the correct position of the law as it goes against the long established position of the law as handed down by the superior courts of law including the Supreme Court of Nigeria. It is well established that Nigeria practices cooperative federalism as opposed to dualistic federalism and under cooperative federalism as practiced in Nigeria, some agencies are joint agencies for the federal and state governments. /p>

In effect, the EFCC is a joint agency for federal and state economic and financial crimes, and as such qualifies as "any other authority" to bring criminal prosecutions under Section 174 (1)(b) and Section 211 (1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Federal Government of Nigeria is not synonymous with the Federation of Nigeria or the Federal Republic of Nigeria. The Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria, while the federal or state governments, in contrast, are the grantees of the powers and authority of the people. In other words, the Federation of Nigeria or the Federal Republic of Nigeria is distinct and separate from the Federal Government of Nigeria which oftentimes is the product of periodic elections. See SHEMA V. F.R.N (2018) 9 NWLR (PT. 1624) 337@398, para. A-C.

Again, these legislative provisions have been the subject of judicial reviews by the Supreme Court and the Court of Appeal, consistent with my position and contrary to Mr. Agbakoba's views or observations on this issue. A few will suffice. In the famous AMADI v. F.R.N. (2008) 18 NWLR (PT. 1119) 259@274-277, the Supreme Court by Mukhtar (JSC) (as it then stood) held succinctly, thus:

“In response, learned counsel for the Respondent argued that Nigeria is a federation (as stipulated in Section 2 of the Constitution of 1999 of the Federal Republic of Nigeria), consisting of the federal and state governments, and each level of government has its powers defined in the Constitution. He referred to Article 174 of the said Constitution, to Queen v. Owoh and Others (1962) NSCC 416: (1962)2 SCNLR 409 and Anyebe vs. State (above). According to him, it is on the basis of the authorization required in these cases that the respondent having received the power of delegation, Exhibit 'A', is entitled to sue the appellant for forgery and use under the law of Lagos State Penal Code.

There is no doubt that Section 211 of the Constitution (supra) empowers a State Attorney General to initiate and undertake criminal prosecutions for the violation of any law of the House of Assembly. Paragraph (2) of the said article states as follows:-

"(2) The powers conferred on the attorney general of a state under subsection (1) of the section may be exercised by him in person or through officers of his department."

At this point, it is imperative that I reproduce a relevant excerpt from the clearance letter. It reads: –