Between EFCC and its critics

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YINKA OLADOYINBO, in this report looks at some inherent issues in the accusations and counter-accusations trailing the war against corruption of the present administration as they affect the Economic and Financial Crimes Commission (EFCC)

The Economic and Financial Crimes Commission (EFCC) appears to be on the spot lately. Some of its activities have been subjected to serious scrutiny To some, particularly those in the opposition parties, the commission has been selective in the performance of its statutory functions, this, they believe could cast doubt on the fight against graft.

Many Nigerians have expected that the commission’s offices to be full of activities following the resolve of President Muhammadu Buhari to tackle corruption. The President has left no one in doubt of his intention to fight corruption and bring to book all public and private office holders believed to have looted the treasury of the country in the past. Based on this development, it was expected that the EFCC, which is a major anti graft agency in the country will have a lot to do to enable Buhari achieve his aim.

Worried by the rate of corruption in the country, former President Olusegun Obasanjo, had established two anti graft agencies; EFCC and the Independent Corrupt Practices and other related offences Commission (ICPC), with the aim of having strong institutions that could deal with the vice.

Also in an attempt to ensure an all-encompassing fight against the scourge, the president earlier in the week set up a presidential advisory committee against corruption, headed by a prominent Professor of Law and rights activist, Professor Itse Sagay. The committee is expected to “advise the present administration on the prosecution of the war against corruption and the implementation of required reforms in Nigeria’s criminal justice system”. The committee, which also has other prominent dons as members, is expected to give impetus to the fight against corruption following the revelation that the three development partners had established an Anti-Corruption and Criminal Justice Reform Fund with $5 million to assist in the implementation of key components of the action plan and the work of the advisory committee

However, since the change of guard at the national level on May 29, 2015, there have been accusations and counter accusations from various quarters on the manner of operation of the agency. Some have accused the commission of deliberate witch-hunt of the perceived opponents of the present administration.

Among the entities that have raised issues over the operation of the agency is the main opposition, Peoples Democratic Party (PDP). The Senate caucus of the party has accused the President of being selective in his fight against corruption. The Senate Minority Leader, Godswill Akpabio, while speaking on the development, said only members of the party were being prosecuted by the administration. Akpabio said: “The PDP caucus is worried, alarmed, and shocked by recent development in our polity where the DSS is now involved in electoral matters. A situation where officials of INEC in Rivers State, Akwa Ibom and Abia sates – (all PDP states) are daily being arrested, detained and questioned on politically-motivated corruption allegations, is worrisome and spells doom for our democracy unless the trend is reversed.

“No democracy survives without a viable opposition in any part of the world. INEC is supposed to be an independent commission and its officials ought to be shielded from partisanship.”

Apart from the allegation of selective prosecution, some Nigerians have also argued that the manner of investigating and prosecuting those arrested for financial crimes had not yielded the much desired conviction, which is ultimately expected to reduce the spread of the scourge in the country. For example, a constitutional lawyer, Dr Fred Agbaje, said the way it closed its cases in courts these days was enough to worry any Nigerian who was interested in the war against graft. He noted that the enabling law of the anti graft agency placed importance on detection, investigation and prosecutorial relevance as a function of the Commission. He added that the most significant responsibility of the EFCC is that of detection and investigation, since there cannot be investigation and even prosecution unless there is a comprehensive detection of crime upon which investigation will then be based.

He said, “Therefore, one cannot overlook the need for a good investigation and the need to tie those who have committed the offence of graft with witnesses that will come out of the investigation, In most cases, if not in 90 per cent of the criminal cases bothering on the crime of graft are lost in court due to shoddy investigation. And in other cases, even where detection and investigation (with all available witnesses) are almost perfect; what of the prosecutorial aspect?”

Despite the criticisms against its mode of operation, the commission has in the last three months, particularly since the coming of the Buhari administration added bit to its activities with high profile cases being pursued. Among the cases being investigated by the commission are the one involving a former governor of Jigawa state, Alhaji Sule Lamido and his sons, that of a former Adamawa state governor, Murtala Nyako and his son, a former Head of Service of the Federation, Steve Orosanye, a former governor of Bayelsa state, Timipre Sylva among others.

But much as the commission would want the people believe it is working, some Nigerians seem not convinced about the ability of the EFCC to deliver on the promise of the president on the fight against corruption. The step taken by Buhari in setting up of the Sagay-led committee is seen in some quarters as an indictment on the EFCC. It was argued that if the president was convinced about the mode of operation of the agency, there would not have been any reason for the committee.

However, the opinion of the PDP caucus in the Senate on the manner the president was pursuing his war against corruption attracted the attention of the presidency, which noted the allegation with regrets. The special assistant to the President on Media and Publicity, Garba Shehu, said it was wrong for anyone to accuse Buhari of partisanship in the war on financial crimes.

He said, “For the avoidance of any doubt whatsoever, we affirm that having made his zero tolerance for corruption clear to all and sundry, President Muhammadu Buhari does not micro-manage or interfere in the daily work of Nigeria’s anti-corruption agencies.

“The wild allegation of bias and partisanship in the fight against corruption shouldn’t have come therefore from respected and distinguished members of the Senate of the Federal Republic of Nigeria. That claim belongs to the past and not the present. Public officials and other leaders accused of corruption by relevant agencies should plead their innocence, not malice. President Buhari’s unwavering stance is that whosoever is charged with corruption should face the law irrespective of whether they are members of the of All Progressives Congress (APC) , Peoples Democratic Party (PDP), or any other political party. As far as the President is concerned, corruption has no political party, no religion and no ethnic group.

“It is important to remind the PDP Senate Caucus and all Nigerians that right from 2003 when he started campaigning for the Presidency of Nigeria, President Buhari consistently promised to do his best to curb corruption in the country. The President remains wholly committed to fulfilling that promise and will not be deterred from the relentless prosecution of the war against corruption because he remains convinced that, as he has said, “unless Nigeria kills corruption, corruption will kill Nigeria”.

Besides the defence put forward for the president by the Presidency, his party, the APC also came out hard on those perceived to constitute themselves to a clog in the wheel of the fight against corruption. According to the party, it takes somebody with skeleton in his cupboard to raise such allegation against the president. It noted that the views being expressed over the renewed fight were mere distractions aimed at frustrating the efforts of the present administration.

The spokesperson of the party, Alhaji Lai Mohammed, said, “The people, including fringe elements, who had frenetically engaged in fault-finding with the Buhari-led administration, were those who either had skeletons in their cupboards or those who were acting at their behest, for a fee. Those paranoid and skittish people daily run to the media to disparage the Buhari-led administration, while grasping at their straws to condemn and criticise everything from appointments to the war against corruption and the battle against insecurity, even though the party to which they belong had 16 years to make things right for Nigeria, but chose to suck the country dry, enthrone insecurity and pauperise the citizenry.

“Their design is simple; make enough incoherent noise in the media with the hope that the administration will be distracted. Unfortunately for them, they have failed in their evil machination, because this president can neither be deterred nor be distracted”.

However on his part, Agbaje, who noted that all hope was not lost on the possibility of the EFCC winning the war, said certain steps have to be taken by the federal government to inject steam into the commission. According to him, there is the need for the amendment of some sections of the 1999 Constitution that are related to the fight against graft in the country. He said, “There is the need (though rash) for a surgical amendment of Section 36 of the 1999 Constitution. No society craving for social-economic justice can ever grow in such a polluted political-economy where fraudulent life style is brazenly embraced. The first step is to make all graft-related offences strict liability (that is, negating knowledge). By this approach in criminal law jurisprudence, the onus of proof is reversed. Instead of the state proving the guilt of the accused beyond the often-mouthed ‘beyond reasonable doubt’, it is for the accused to prove his innocence (that is, on how he/accused on a salary Grade Level 15 or less came about N2Billion in his/her account with houses and cars scattered in Lagos, Abuja and in the accused village).

It was however argued by other concerned citizens that if the President was desirous to fight corruption within the ambit of the rule of law, he must urgently sponsor a bill to amend Section 36 of the constitution, Section 135 of the Evidence Act, 2011, and the relevant provisions of our penal laws.

No doubt, the EFCC is one of the government agencies that many Nigerians will look up to in the next few months as its activities are likely to be used as a yardstick for the measurement of the performance of the present administration. This is because the war against corruption was one of the campaign issues that made many of the electorate bought into the “change” mantra of the APC. However the commission can only impress Nigeria if the tactics being employed for its operations is looked into and amended, as Nigerians are become increasingly impatient. The fear of the people is that many of the high profile cases being investigated and/or prosecuted by the commission appear to be more theatrics. Some of the cases started in 2003, are still pending in different courts across the country. Most of them involve former governors, a number of whom are serving Senators or could not renew their mandate to be in the upper chamber of the National Assembly in the present administration.

In the face of the criticisms, the commission also appeared to be facing some challenges in its operations. The core challenges of the EFCC cut across legal framework, logistics, infrastructure and political interference. But such constraints are not peculiar to the commission, as other agencies with similar functions are affected. The overbearing influence on them seems to militate against their overall objectives of stemming the tide of malfeasance in the country. Of particular interest is the role of the office of the Attorney General of the Federation and Minister of Justice, as was the case during the Yar’Adua presidency.

The other major challenge is funding, which has led to what some legal practitioners claim manifest in the inability of the EFCC to meet its financial obligations to lawyers, many of who are often sourced outside because of a number of other factors. The issue of fund at the disposal of the commission to operate smoothly and efficiently comes into focus against the background of the financial muscles of accused persons to adequately hire and fund their counsels. Related to the issue of lack of fund is the fact that the EFCC does not have infrastructure spread across the 36 states.

The immunity clause in the 1999 Constitution also hamstrings the commission, especially on the issue of being proactive. Apart from giving accused persons the leeway to perfect an escape route, the immunity clause which makes it impossible for the agencies to try the sitting president, vice president and the governors, often gives the impression that the EFCC is a toothless bulldog, which has the capacity to merely bark in the face of flagrant and gross abuse of office by public officials.

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