EFCC, ICPC competent to investigate state accounts – Falana

Nigeria’s leading human rights lawyer and advocate, Femi Falana, said on Thursday that contrary to the views of another SAN, Olisa Agbakoba, anti-corruption agencies such as the Economic and Financial Crimes Commission and the Independent Commission on Corrupt Practices and other related crimes were competent to investigate the account of state governments.

The Chief Counsel made this known in an article made available to our correspondent in Abuja.

“My respected colleague and comrade in the human rights community, Olisa Agbakoba SAN has questioned the legal competence of anti-corruption agencies to investigate the finances of state governments. She is so convinced of her position that she has announced her intention to go to the federal high court to obtain a life injunction barring the EFCC from investigating state government accounts.

“The controversy is completely unnecessary in view of the fact that appellate courts have held that anti-corruption agencies are competent to arrest, investigate and prosecute public officials and individuals involved in the criminal diversion of public funds belonging to state governments. Some of the cases include the following: Kalu v. Federal Republic of Nigeria (2014) 1 NWLR (PT 1389) 479.

“The EFCC’s locus standi to prosecute the appellants was challenged by the appellants, who filed various objections to the charges on the grounds that the allegedly stolen funds belonged to the Abia State government.

“The appellants maintained that they should not have been charged on behalf of the Federal Republic of Nigeria.

The Court of Appeal had no difficulty in dismissing the objections. In the Court’s main judgment, Eko JCA (as it was then) said: “In my opinion, the appellants have incorrectly argued that the money laundering offenses charged against them are offenses against the Abia state government which owns the allegedly “stolen and laundered” funds. on the account of Slok Nigeria Limited.

“This argument is rooted in another fallacious ground that the funds allegedly stolen and paid into the Slok Nigeria Limited account came from the Abia State Security Vote which was administered by the 2nd Defendant, as Governor of Abia State, and that said Security votes are ‘uncountable and irrevocable’.

“The argument does not say, and cannot be stretched further to mean, that because Security Votes funds are ‘unaccountable and unrecoverable,’ they can be stolen or stolen with impunity.”

“Kalu V Federal Republic of Nigeria & Ors [2016] NGSC 34 Completely dissatisfied with the Court of Appeal’s decision, the appellants appealed to the Supreme Court. In dismissing the appeal, their lordships said:

“Appellant’s argument that he did not own shares or was the alter ego of Slok Ltd and the illegality of the withdrawal of large sums of money from the Abia State Government Account of which he was Executive Governor from 1999 to 2007; all these are matters for his defense at trial.

“Sections 6(m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act give the EFCC the role and duty to investigate and prosecute persons reasonably suspected of having committed economic crimes. and financial. For a person to rush to court in order to put up an obstacle or shield against criminal investigation and prosecution is a clear interference with the powers granted by law and the constitution to the EFCC in the conduct of investigation and prosecution penal”.

“Dariye v Federal Republic of Nigeria (2015) 10 NWLR (PT.1467) 325.

The Appellant questioned the power of the EFCC to prosecute the matter on the basis that the object was not owned by the Plateau State Government. In dismissing the objection, the high court held that, “…as the defendant’s lead attorney correctly pointed out, the crimes are charged in accordance with the provisions of the Penal Code, which is federal law. It is a federal accusation and the Attorney General of the Federation by himself or through an agent can prosecute for the crimes charged. The holder of the object of the charges is immaterial. The important thing is that a federal law has been violated. “

“Nyame v. Federal Republic of Nigeria (2010) 7 NWLR (PT.1093) 344 at 429 .

In rejecting the objection that the prosecutor is not the owner of the stolen money, the Supreme Court said the following: “It is not a known defense in law that an accused person cannot be prosecuted by the authority with prosecutorial powers on the basis that The prosecutor is not the owner of the stolen objects.

“The criminal offense is a crime against the State. A prosecutor does not need to have an interest in the subject of the complaint before he can prosecute an accused person. He is protecting the State and its citizens and any prosecutor, authority or body vested with the power to prosecute should be encouraged to fulfill their duties, as long as due process is upheld and followed”.

“Ondo State Attorney General v. Attorney General of the Federation (2002) 27 WRN 1 at 186:

“The plaintiff challenged the constitutional validity of the ICPC Act 2000 and claimed that it was not applicable to Ondo State. In confirming the validity of the Ac, the superior court held, among other things:

“It has been pointed out that the provisions of the Law violate the cardinal principle of federalism, namely, the requirement of equality and autonomy of the State Government and non-interference with the functions of the State Government.

“This is true, but as seen above, both the federal and state governments share the power to legislate to abolish corruption and abuse of office. If this is a violation of the principle of federalism, then, I fear, it is the Constitution that makes the provisions that have facilitated the violation of the principle.

“To the extent that the aberration is supported by the provision of the Constitution, I believe that an illegality cannot properly be argued to have occurred because the Constitution failed to adhere to the cardinal principles that, at best, cases, are ideal to follow or a guide for an ideal situation.

“Shema & 3 Ors v Federal Republic of Nigeria (2018) 1 SC (PT 1) 1.

The issue in dispute was the competence of the EFCC to prosecute a former state governor and other officials without authorization from the State Attorney General. The opinion of the Supreme Court was that, “The law demonstrates a clear intent that, with or without express delegation from the Katsina State Attorney General, the EFCC could validly bring the present charges and prosecute the appellants on behalf of the Public Prosecutor’s Office. Federal. Republic of Nigeria as a joint agency of both the Federation Attorney General and the Katsina State Attorney General.

“We agree with Respondent that a community reading of the provisions of Sections 15(5) and 211(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Section 6 (m), 7 (f), 13 (2) (a) and (d) and 46 of the EFCC (Establishment) Act, 2004 and Section 185 (a) of the Code of Criminal Procedure (CPC), Cap 37 , Katsina State Law, 1991 gives the EFCC the power to do what it intended to do when trying to prosecute appellants.

“In view of the current state of the law, the EFCC and ICPC are undoubtedly competent to investigate state government accounts and prosecute former or serving state government officials involved in corrupt practices, money laundering or criminal diversion. of public funds.

“While state governors cannot be arrested and prosecuted, as section 305 of the Constitution has granted them immunity during their tenure, anti-corruption agencies are not precluded from investigating allegations of economic and financial crime, including corruption, which they are charged with.”

Leave a Comment