Last Tuesday, Attorney-General of the Federation (AGF) and
Minister of Justice Abubakar Malami proposed the repeal and
re-enactment of the Economic and Financial Crimes Commission (EFCC)
Act. He said this would make way for a comprehensive overhaul of
the issues in the Act which have been hampering its fight against
corruption. But lawyers conversant with EFCC operations are divided
on the proposal, ADEBISI ONANUGA writes.
The Attorney-General of the Federation (AGF) and Minister of
Justice, Mr. Abubakar Malami, last week wrote to the House of
Representatives seeking a review of the Economic and Financial
Crimes Commission (EFCC) Act 2004, to remove all lacuna hindering
the performance of its duties.
The AGF asked members of the Lower Chamber of the Legislative
House for a comprehensive review of the Act. Alternatively, he
suggested they repeal and re-enact the Act, to come up with a new
and harmonised bill that would address the issues he raised.
The House Committee on Financial Crimes, chaired by a member of
the All Progressives Congress (APC) from Ogun State, Mr. Kayode
Oladele, last Tuesday presented two bills to the House for public
hearing: “A Bill to Amend the Economic and Financial Crimes
(Establishment) Act” and “A Bill to Amend the Money Laundering
(Prohibition and Prevention) Act”.
The AGF, it was reported, gave a long list of proposed
amendments which included a bill granting autonomy to the Nigerian
Financial Intelligence Unit (NFIU), currentlty domiciled under the
EFCC.
The AGF proposed the setting up of a sub-committee of the
lawmakers, the EFCC, his office and other stakeholders to do a
thorough review of the Act. The EFCC is said to be in full support
of a harmonised bill as it would strengthen the agency.
However, while the EFCC agrees with the AGF’s proposal on the
need for a harmonised and a comprehensive bill, the Nigerian Law
Reform Commission (NLRC) is not favourably disposed to it.
EFCC Act 2004
The EFCC Act 2004 established the commission. The Act mandates
the EFCC to combat financial and economic crimes. The commission is
empowered to prevent, investigate, prosecute and penalise economic
and financial crimes’offenders, and is charged with the
responsibility of enforcing the provisions of other laws and
regulations relating to economic and financial crimes, including:
Economic and Financial Crimes Commission Establishment Act (2004);
The Money Laundering Act 1995; The Money Laundering (Prohibition)
Act 2004; The Advance Fee Fraud and Other Fraud Related Offences
Act 1995; The Failed Banks (Recovery of Debts) and Financial
Malpractices in Banks Act 1994; The Banks and other Financial
Institutions Act 1991; and Miscellaneous Offences Act.
Based on this mandate, the EFCC, under its Acting Chairman,
Ibrahim Magu, has been at the forefront of the fight against
corruption, sometimes, using a combination of these laws.
While observers of the polity see the need to review the EFCC
Act, they however don’t agree with the proposal to repeal the act
against the background of many recoveries made by the commission.
To this group, a repeal of the act is suspect, given the recent
face-off between Magu and NGF. They questioned the need to repeal
the Act through which, in their view, the agency made huge
financial recoveries and convictions.
EFCC successes
There is a general belief that Magu, in spite of the
non-confirmation of his position by the lawmakers, has performed as
well as, if not better than, any of his predecessors.
For instance, under Magu, the EFCC has secured 340 convictions
in courts for various offences and recovered billions of dollars of
stolen funds within the last six months.
In addition, the commission using the mechanism of the
non-conviction-based forfeiture provided under Section 17 of the
Advance Fee Fraud and Other Fraud Related Offences Act, 2006, had
made a lot of recoveries. This year alone, the commission recovered
stolen assets running into several millions of dollars and billions
of naira.
These include the $43 million recovered from Diezani
Alison-Madueke, Nigeria’s former Minister of Petroleum, and N2
billion from seven accounts within three Nigerian banks laundered
from the Federal Capital Territory Police Command Salary
Accounts.
The country had also made progress in specific cases related to
Abacha loot, Malabu Oil, Diezani and associates, and the arms
procurement scandal.
Another instance is the recovery of $9.2 million and 750,000
pounds from the home of Mr Andrew Yakubu, a former Group Managing
Director of the Nigerian National Petroleum Corporation (NNPC) in
Kaduna State. The money is said to be in excess of N3 billion at
the official exchange rate.
There was also the case of a public servant from whom the agency
recovered N1.25 billion.
Why a review of EFCC Act may be desirable
Some observers, however, appeared to be in agreement with the
AGF whose office, sometimes, disagrees with the EFCC on how it
handles high-profile anti-graft cases.
Non-diligent prosecution of PEP cases
Although many of the EFCC cases involving Politically-Exposed
Persons (PEPs) are yet to be concluded, and many other PEPs are
under EFCC investigation, the commission has been accused of poor
and non-diligent prosecution of a few of the PEP corruption cases
it has lost.
Critics say these are the main reasons the agency has hardly
secured convictions of high-profile persons for allegedly looting
the country’s treasury, notwithstanding the huge funds recovered in
some cases.
They argued that this was why President Muhammadu Buhari-led
administration was yet to score a high profile conviction since it
began its war against corruption in May 2015.
Appointment of EFCC chairman
One contentious issue which attracted attention of observers was
the appointment and confirmation of the chairman of the commission.
There have been arguments whether or not the President requires the
confirmation of the Senate for the appointment of EFCC
chairman.
The mostly referred sections in the matter are 1(1) and (3) of
the 1999 Constitution (as amended) and Section 171(1) (2) of the
same constitution, vis-a-vis Section 2(3) of the Economic and
Financial Crimes Commission (EFCC) establishment Act 2004.
The non-clarity of the interpretation of this Section of the
Constitution and the EFCC Act has been one of the reasons why Magu
remains Acting Chairman of the commission.
Inadequate funding of the EFCC
Some observers believe all inhibitions must be removed if the
EFCC must function to expectation.
One way of achieving this, they said, is ensuring adequate
funding of the agency. But how can this be achieved? Is a repeal
and re-enactment the answer?
During a plenary sitting of the House of Representatives last
week, the Secretary of the commission, Mr. Emmanuel Adegboyega, who
represented Magu, made a case for adequate funding of the agency as
stated among the amendments proposed for the EFCC Act.
He emphasised the importance of proper funding of the agency if
it must work and deliver on the expectations of the government and
the people of Nigeria.
To this end, he requested that a fraction of the money, up to
five per cent, recovered by the commission within the last two
years, be allocated to the agency to speed up its activities.
But the NLRC opposed the idea of giving some percentage of
recovered loot to the EFCC. Its representative, Prof. Jummai Awudi,
argued that it would be “legally and morally wrong” for the
commission to keep part of the recovered money to itself.
Suspension of NFIU from Egmont Group
In the heat of the controveray, the Senate and the office of the
AGF blamed Magu for the suspension of the Nigeria Financial
Intelligence Unit (NFIU) from the Egmont Group.
The Egmont Group is a body of Financial Intelligence units whose
members compare notes on matters relating to international finance
and illicit flow of monies.
Presently, the NFIU operates as a department under the EFCC. But
the Senate and Malami would prefer that the NFIU operated
independently.
The AGF alleged that the EFCC had been “manipulating and
misusing intelligence to the detriment of the fight against
corruption and financial crimes in Nigeria”, adding that the
commission was not happy with the effort of the government to have
an independent NFIU.
The independence of the NFIU is one of the amendments to the
EFCC Act proposed by the office of the AGF
According to Malami, this request is reinforced with the need
for a review of the NFIU operatives and operations to make it
stronger for Nigeria’s re-admission to the Egmont Group.
Lawyers reaction
Lawyers who are conversant with the workings of the EFCC,
however, see the proposal of the AGF in another light.
To, them, a repeal or re-enactment of the Act is dangerous and
might not be in the interest of the commission and the fight
against corruption.
They include activist lawyer Festus Keyamo (SAN), a former
member of the Ogun State Judiciary Service Commission, Abayomi
Omoyinmi, and former Welfare Secretary, Nigerian Bar Association
(NBA), Ikeja Branch, Samson Omodara.
Keyamo said the controversy over the NFIU was needless.
According to him, the functions of the NFIU were so closely
connected to EFCC operations that it was not practicable for both
organisations to be separated in the way that is being
proposed.
He, however, said he would make more comments when a full detail
of what is to be done on the matter becomes public.
Omoyinmi said the AGF’s proposal on total repeal and
re-enactment of the EFCC Act is wishful. “It cannot be achieved and
I believe it is very unnecessary to have the whole Act
repealed.
“I am of the opinion that the Act can go through a steady review
in line with amendment which is under consideration by the National
Assembly. The grey areas observed should be attended to during the
course of reviewing the Act which obviously would be put forward
for amendment.
“Attention should be given to areas of funding, training,
special powers ,investigation and prosecution. These are areas that
may need to be reviewed and that can strengthen the functions of
the commission as we presently have it as opposed to total repeal
proposed by the AGF,” he said.
Omodara also opposed a repeal of the Act. According to him, “our
problem in this country is not lack of laws but holistic and
spirited implementation of these laws, EFCC Act inclusive”.
He argued “no law is flawless even the grundnorm. I therefore
will not subscribe to a total repeal rather an amendment as it has
been done to the Electoral Act. The officers responsible for the
investigation and prosecution of suspects must be thorough and
patriotic. The punishments as contained in the Act may also be
looked into with a view to deterring corruption. Capital punishment
may be considered like the China’s position”, he advised.
Culled: The Nation
Last Tuesday, Attorney-General of the Federation (AGF) and
Minister of Justice Abubakar Malami proposed the repeal and
re-enactment of the Economic and Financial Crimes Commission (EFCC)
Act. He said this would make way for a comprehensive overhaul of
the issues in the Act which have been hampering its fight against
corruption. But lawyers conversant with EFCC operations are divided
on the proposal, ADEBISI ONANUGA writes.
The Attorney-General of the Federation (AGF) and Minister of
Justice, Mr. Abubakar Malami, last week wrote to the House of
Representatives seeking a review of the Economic and Financial
Crimes Commission (EFCC) Act 2004, to remove all lacuna hindering
the performance of its duties.
The AGF asked members of the Lower Chamber of the Legislative
House for a comprehensive review of the Act. Alternatively, he
suggested they repeal and re-enact the Act, to come up with a new
and harmonised bill that would address the issues he raised.
The House Committee on Financial Crimes, chaired by a member of
the All Progressives Congress (APC) from Ogun State, Mr. Kayode
Oladele, last Tuesday presented two bills to the House for public
hearing: “A Bill to Amend the Economic and Financial Crimes
(Establishment) Act” and “A Bill to Amend the Money Laundering
(Prohibition and Prevention) Act”.
The AGF, it was reported, gave a long list of proposed
amendments which included a bill granting autonomy to the Nigerian
Financial Intelligence Unit (NFIU), currentlty domiciled under the
EFCC.
The AGF proposed the setting up of a sub-committee of the
lawmakers, the EFCC, his office and other stakeholders to do a
thorough review of the Act. The EFCC is said to be in full support
of a harmonised bill as it would strengthen the agency.
However, while the EFCC agrees with the AGF’s proposal on the
need for a harmonised and a comprehensive bill, the Nigerian Law
Reform Commission (NLRC) is not favourably disposed to it.
EFCC Act 2004
The EFCC Act 2004 established the commission. The Act mandates
the EFCC to combat financial and economic crimes. The commission is
empowered to prevent, investigate, prosecute and penalise economic
and financial crimes’offenders, and is charged with the
responsibility of enforcing the provisions of other laws and
regulations relating to economic and financial crimes, including:
Economic and Financial Crimes Commission Establishment Act (2004);
The Money Laundering Act 1995; The Money Laundering (Prohibition)
Act 2004; The Advance Fee Fraud and Other Fraud Related Offences
Act 1995; The Failed Banks (Recovery of Debts) and Financial
Malpractices in Banks Act 1994; The Banks and other Financial
Institutions Act 1991; and Miscellaneous Offences Act.
Based on this mandate, the EFCC, under its Acting Chairman,
Ibrahim Magu, has been at the forefront of the fight against
corruption, sometimes, using a combination of these laws.
While observers of the polity see the need to review the EFCC
Act, they however don’t agree with the proposal to repeal the act
against the background of many recoveries made by the commission.
To this group, a repeal of the act is suspect, given the recent
face-off between Magu and NGF. They questioned the need to repeal
the Act through which, in their view, the agency made huge
financial recoveries and convictions.
EFCC successes
There is a general belief that Magu, in spite of the
non-confirmation of his position by the lawmakers, has performed as
well as, if not better than, any of his predecessors.
For instance, under Magu, the EFCC has secured 340 convictions
in courts for various offences and recovered billions of dollars of
stolen funds within the last six months.
In addition, the commission using the mechanism of the
non-conviction-based forfeiture provided under Section 17 of the
Advance Fee Fraud and Other Fraud Related Offences Act, 2006, had
made a lot of recoveries. This year alone, the commission recovered
stolen assets running into several millions of dollars and billions
of naira.
These include the $43 million recovered from Diezani
Alison-Madueke, Nigeria’s former Minister of Petroleum, and N2
billion from seven accounts within three Nigerian banks laundered
from the Federal Capital Territory Police Command Salary
Accounts.
The country had also made progress in specific cases related to
Abacha loot, Malabu Oil, Diezani and associates, and the arms
procurement scandal.
Another instance is the recovery of $9.2 million and 750,000
pounds from the home of Mr Andrew Yakubu, a former Group Managing
Director of the Nigerian National Petroleum Corporation (NNPC) in
Kaduna State. The money is said to be in excess of N3 billion at
the official exchange rate.
There was also the case of a public servant from whom the agency
recovered N1.25 billion.
Why a review of EFCC Act may be desirable
Some observers, however, appeared to be in agreement with the
AGF whose office, sometimes, disagrees with the EFCC on how it
handles high-profile anti-graft cases.
Non-diligent prosecution of PEP cases
Although many of the EFCC cases involving Politically-Exposed
Persons (PEPs) are yet to be concluded, and many other PEPs are
under EFCC investigation, the commission has been accused of poor
and non-diligent prosecution of a few of the PEP corruption cases
it has lost.
Critics say these are the main reasons the agency has hardly
secured convictions of high-profile persons for allegedly looting
the country’s treasury, notwithstanding the huge funds recovered in
some cases.
They argued that this was why President Muhammadu Buhari-led
administration was yet to score a high profile conviction since it
began its war against corruption in May 2015.
Appointment of EFCC chairman
One contentious issue which attracted attention of observers was
the appointment and confirmation of the chairman of the commission.
There have been arguments whether or not the President requires the
confirmation of the Senate for the appointment of EFCC
chairman.
The mostly referred sections in the matter are 1(1) and (3) of
the 1999 Constitution (as amended) and Section 171(1) (2) of the
same constitution, vis-a-vis Section 2(3) of the Economic and
Financial Crimes Commission (EFCC) establishment Act 2004.
The non-clarity of the interpretation of this Section of the
Constitution and the EFCC Act has been one of the reasons why Magu
remains Acting Chairman of the commission.
Inadequate funding of the EFCC
Some observers believe all inhibitions must be removed if the
EFCC must function to expectation.
One way of achieving this, they said, is ensuring adequate
funding of the agency. But how can this be achieved? Is a repeal
and re-enactment the answer?
During a plenary sitting of the House of Representatives last
week, the Secretary of the commission, Mr. Emmanuel Adegboyega, who
represented Magu, made a case for adequate funding of the agency as
stated among the amendments proposed for the EFCC Act.
He emphasised the importance of proper funding of the agency if
it must work and deliver on the expectations of the government and
the people of Nigeria.
To this end, he requested that a fraction of the money, up to
five per cent, recovered by the commission within the last two
years, be allocated to the agency to speed up its activities.
But the NLRC opposed the idea of giving some percentage of
recovered loot to the EFCC. Its representative, Prof. Jummai Awudi,
argued that it would be “legally and morally wrong” for the
commission to keep part of the recovered money to itself.
Suspension of NFIU from Egmont Group
In the heat of the controveray, the Senate and the office of the
AGF blamed Magu for the suspension of the Nigeria Financial
Intelligence Unit (NFIU) from the Egmont Group.
The Egmont Group is a body of Financial Intelligence units whose
members compare notes on matters relating to international finance
and illicit flow of monies.
Presently, the NFIU operates as a department under the EFCC. But
the Senate and Malami would prefer that the NFIU operated
independently.
The AGF alleged that the EFCC had been “manipulating and
misusing intelligence to the detriment of the fight against
corruption and financial crimes in Nigeria”, adding that the
commission was not happy with the effort of the government to have
an independent NFIU.
The independence of the NFIU is one of the amendments to the
EFCC Act proposed by the office of the AGF
According to Malami, this request is reinforced with the need
for a review of the NFIU operatives and operations to make it
stronger for Nigeria’s re-admission to the Egmont Group.
Lawyers reaction
Lawyers who are conversant with the workings of the EFCC,
however, see the proposal of the AGF in another light.
To, them, a repeal or re-enactment of the Act is dangerous and
might not be in the interest of the commission and the fight
against corruption.
They include activist lawyer Festus Keyamo (SAN), a former
member of the Ogun State Judiciary Service Commission, Abayomi
Omoyinmi, and former Welfare Secretary, Nigerian Bar Association
(NBA), Ikeja Branch, Samson Omodara.
Keyamo said the controversy over the NFIU was needless.
According to him, the functions of the NFIU were so closely
connected to EFCC operations that it was not practicable for both
organisations to be separated in the way that is being
proposed.
He, however, said he would make more comments when a full detail
of what is to be done on the matter becomes public.
Omoyinmi said the AGF’s proposal on total repeal and
re-enactment of the EFCC Act is wishful. “It cannot be achieved and
I believe it is very unnecessary to have the whole Act
repealed.
“I am of the opinion that the Act can go through a steady review
in line with amendment which is under consideration by the National
Assembly. The grey areas observed should be attended to during the
course of reviewing the Act which obviously would be put forward
for amendment.
“Attention should be given to areas of funding, training,
special powers ,investigation and prosecution. These are areas that
may need to be reviewed and that can strengthen the functions of
the commission as we presently have it as opposed to total repeal
proposed by the AGF,” he said.
Omodara also opposed a repeal of the Act. According to him, “our
problem in this country is not lack of laws but holistic and
spirited implementation of these laws, EFCC Act inclusive”.
He argued “no law is flawless even the grundnorm. I therefore
will not subscribe to a total repeal rather an amendment as it has
been done to the Electoral Act. The officers responsible for the
investigation and prosecution of suspects must be thorough and
patriotic. The punishments as contained in the Act may also be
looked into with a view to deterring corruption. Capital punishment
may be considered like the China’s position”, he advised.
Culled: The Nation
Read more https://www.nairalaw.com/efcc-act-to-be-repealed-or-not/