BY FEMI FALANA (SAN)
My respected colleague and comrade in the human rights community, Olisa Agbakoba SAN has questioned the legal competence of the anti -graft agencies to investigate the finances of state governments. He feels so convinced about his position that he has announced his intention to approach the federal high court to secure a perpetual injunction restraining the EFCC from probing the accounts of state governments. The controversy is completely needless in view of the fact that the appellate courts have held that the anti-graft agencies are competent to arrest, investigate and prosecute public officers and private individuals involved in the criminal diversion of public fund belonging to state governments. Some of the cases include the following:
- Kalu v. Federal Republic of Nigeria (2014) 1 NWLR (PT 1389) 479
The locus standi of the EFCC to prosecute the Appellants was questioned by the Appellants who raised several objections to the charges on the grounds that the funds allegedly stolen belonged to the Abia State Government. The Appellants contended that they should not have been charged in the name of the Federal Republic of Nigeria. The Court of Appeal entertained no difficulty in dismissing the objections. In the leading judgment of the Court Eko JCA (as he then was) said: “The Appellants have incorrectly in my view, argued that the money laundering offences alleged against them are offences against Abia State Government that owns the funds allegedly stolen and laundered in the account of Slok Nigeria Limited. This argument is rooted in another fallacious ground that the funds allegedly stolen and paid into the account of Slok Nigeria Limited were from the Security Vote of Abia State that were managed by the 2nd Respondent, as the Governor of Abia State, and that the said Security Votes are ’unaccountable and unretiredable’. The argument does not say, and it cannot be further stretched to mean, that because the funds from Security Votes are ‘unaccountable and unretireable’ they are stealable or and can be pilfered with impunity”
- Kalu V Federal Republic Of Nigeria & Ors [2016] NGSC 34 Completely dissatisfied with the decision of the Court of Appeal the appellants appealed to the Supreme Court. In dismissing the appeal their lordships said: “The Appellant’s argument that he neither had shares in nor was he the alter ego of Slok Ltd and the illegality of withdrawal of some huge sums of money from the Account of Abia State Government of which he was the Executive Governor from 1999 to 2007; all these are matters for his defence at trial. Sections 6 (m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act vest in EFCC the function and duty of investigating and prosecuting persons reasonably suspected to have committed economic and financial crimes. For a person to rush to court to place a clog or shield against criminal investigation and prosecution is a clear interference with the powers given by law and the constitution to EFCC in the conduct of criminal investigation and prosecution.”
- Dariye v Federal Republic of Nigeria (2015) 10 NWLR (PT.1467) 325
The Appellant challenged the power of the EFCC to prosecute the matter on the ground that the subject matter was not the property of the Plateau State Government. In dismissing the objection the apex court held that:“…as rightly pointed out by the learned senior counsel for the Respondent, the offences are charged under the provisions of the Penal Code which is a Federal legislation. It is a Federal indictment and the Attorney-General of the Federation by himself or through an agent may prosecute for the offences alleged. The owner of the subject matter of the charges is immaterial. What is material is that a Federal enactment has been violated. “
- Nyame v. Federal Republic of Nigeria (2010) 7 NWLR (PT.1093) 344 at 429
In dismissing the objection that the prosecutor is not the owner of the money stolen the Supreme Court had this to say:“It is not a defence known to law that an accused person cannot be prosecuted by the authority with prosecutorial powers on the ground that the prosecutor is not the owner of the stolen items. Criminal offence is an offence against the state. A prosecutor need not have an interest in the subject matter of the complaint before he can prosecute an accused person. He is protecting the state and its citizens and every prosecutor or authority or agency vested with the powers to prosecute should be encouraged to carry out their duties, provided that the due process is maintained and followed.”
- Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 27 WRN 1 at 186:
The plaintiff challenged the constitutional validity of the ICPC Act 2000 and contended that it was not applicable to Ondo State. In upholding the validity of the Ac the apex court held inter alia:
“It has been pointed out that the provisions of the Act impinge on the cardinal principle of federalism, namely, the requirement of equality and autonomy of the State Government and non-inter-reference with the functions of State Government. This is true, but as seen above, both the Federal and State Government share the power to legislate in order to abolish corruption and abuse of office. If this is a breach of the principle of Federalism, then, I am afraid, it is the Constitution that makes the provisions that have facilitated the breach of the principle. As far as the aberration is supported by the provision of the Constitution, I think it cannot rightly be argued that an illegality has occurred by the failure of the Constitution to adhere to the cardinal principles which are at best ideals to follow or guidance 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 EFCC to prosecute a former governor of a state and other officials without the fiat of the State Attorney-General. It was the view of the Supreme Court that:
“The law evinces a clear intention that, with or without express delegation from the Attorney General of Katsina State, the EFCC could validly prefer the present charges and prosecute the appellants in the name of the Federal Republic of Nigeria as a common Agency of both the Attorney General of the Federation and Attorney General of Katsina State. We agree with the respondent that a community reading of 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 Criminal Procedure Code (CPC), Cap 37, Law of Katsina State, 1991 gives the EFCC power to do what it sought to do by attempting to prosecute the appellants.”
Conclusion
In view of the current state of the law it is indubitably clear the EFCC and ICPC are competent to probe the accounts of state governments and prosecute former or serving state government officials involved in corrupt practices, money laundering or criminal diversion of public fund. Even though state governors cannot be arrested and prosecuted since section 305 of the Constitution has conferred immunity on them during their term of office the anti-graft agencies are not precluded form investigating allegations of economic and financial crimes commission including corruption leveled against them.
