A Democracy is governed by the Rule of Law. A simplistic definition of the Rule of Law would be that; if we need to make anything happen, we enact a law within the constitution to cure the societal defect.
S.5(1) (e-i) of the EFCC Act lists some of its responsibilities to include:
(e)the adoption of measures to eradicate the commission of economic and financial crimes;
(f) the adoption of measures which includes co-ordinate preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related times;
(g) the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes;
(h) the examination -and investigation of al1 reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved;
(i)the determination of the extent of financial loss and such other losses by government, private individuals or organisations ;
(j)collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning
(i) the identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes,
(ii)the movement of proceeds or properties derived from the commission of economic and financial and other related crimes,
(iii)the exchange ofpersonne1 or other experts,
(iv)the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved,
(v) maintaining data, statistics, records and reports on persons, organisations, proceeds, properties, documents or other items or assets involved in economic and financial crimes,
Constitutional Test Case in Benue State
The Vanguard Newspapers reported on August 10, 2006, that the Benue State Government has taken the Federal Government and the other 35 Attorneys Generals of the States to court regarding the legality and scope and applicability of the EFCC Act in regards to the constitution and the Powers of the Federating Units.
See Vanguard.
Benue State is asking the Supreme Court for the following reliefs:* Declare that the National Assembly cannot lawfully or validly pass any Act in respect of criminal matters made applicable to Benue State to exclude, remove, jettison or interfere with the powers vested in the plaintiff under and by virtue of section 211(1) of the 1999 constitution to:
a) institute and undertake criminal proceedings against any person before any court of law in Nigeria in respect of any offence created by or under any law of the House of Assembly of Benue State;
b) take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
c) discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other person authority or person.
* A declaration that in so far as the EFCC Act purports to exclude, remove, jettison or interfere with the constitution and age-long statutory power of the plaintiff to:
a) institute and undertake criminal proceedings against any person before any court of law in Nigeria in respect of any offence created by or under any law of the House of Assembly of Benue State;
b) take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
c) discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other person authority or person, the Act is unconstitutional, null and void and of no effect whatsoever.
* A declaration that the National Assembly cannot validly pass any Act to create or establish any other (Police) force/security agency, and that the creation of the EFCC vested with awesome and wide powers akin to and/or broader than those given to the Nigerian Police both by the 1999 constitution and the Police Act Cap P 19, Laws of the Federation, 2004, is unconstitutional, null and void and of no effect whatsoever.
* A declaration that the National Assembly has no power to make any law creating a criminal offence with retroactive application and that in so far as the EFCC Act, 2004 vests retroactive powers and functions in the EFCC, the said Act is unconstitutional, null and void and of no effect whatsoever.
* A declaration that the EFCC as an agency of the Federal Government has no power, right, duty and jurisdiction to conduct an oversight function on the affairs or management of the Benue State or to arrest, detain or prosecute any official of the state government for any purported offence in relation to the offence of corruption, abuse of power or office.
* A declaration that the arrest, detention and harassment of officials of the Benue State government by agents or officers of the EFCC on or about July 28, 2006 or on any day at all for allegations of corruption and abuse of office and/or demand on them to supply details of utilities of Ecological Funds received by the state from May 1999 to date and particulars of all contracts awarded by the state within the same period and payments made on such contracts, etc is ultra vires the power of EFCC and is therefore unconstitutional, illegal and arbitrary.
* A declaration that the EFCC Act dealing with, amongst others, confiscation of all property and funds seized from officials of a state government (Benue State) by EFCC to the Federal Government; encroachment on the fundamental human rights provision enshrined in Chapter IV of the 1999 constitution; the retrospective application of the Act on the functions of the commission; the transfer of the oversight functions of the Benue State House of Assembly; the expansion of the jurisdiction of the Federal High Court by vesting it with criminal jurisdiction in respect of affairs of a state government; divesting the Benue State High Court of its inherent powers and jurisdiction and interfering with the way and manner proceedings should be conducted and creating and vesting awesome power in the commission like and/or wider than that of the Nigerian Police are unconstitutional, illegal and void.
* A declaration that on a proper construction of the provisions of the EFCC Act, 2004 are inconsistent with the clear provision of the constitution, coupled with the fact that the said provision run against the spirit, tenor and intendment of federalism, the entirety of the Act becomes null and void and of no effect whatsoever.
* An order directing the Federal Government to tender or render an unreserved apology to Benue State for the embarrassment and intimidation it received from EFCC on July 27, 2006.
Chief Wole Olanipekun (SAN), counsel to Benue State government, in a 33-paragraph affidavit in support of the suit, averred that “on July 27, 2006, officers and men of EFCC numbering over 50 and heavily armed with sophisticated weapon stormed the office of the Secretary to the Benue State Government and arrested the Commissioner for Finance, a Deputy Director and Director of Administration and Finance in the Ministry of Local Government.
“It took the state governor personally going to beg before the state functionaries were released and on July 31, 2006, the EFCC wrote to the State Police Command, asking for the arrest of some key officers of the state, namely Commissioners for Finance, Water Resources and Environment, Works, Education, the Accountant-General and the Chief Executive of Benue State Scholarship Board, Permanent Secretary-Ministry of Water Resources, Director of Administrator, Local Governments and Chieftaincy Affairs, Director of Monitoring and Inspectorate Division of Ministry of Local Governments and Chieftaincy Affairs and Deputy Director in the Accountant General’s office.”
He further averred that EFCC was also demanding some vital and sensitive government documents, whether classified or not. Benue State is contesting that “contrary to the clear provision of the constitution, EFCC set up by the National Assembly and its operation, particularly in relation to the Benue State government, is another (Police) force in a disguise manner and with wide and/or overriding powers than the Nigerian Police.”
