The Supreme Court on Tuesday, October 22, reserved judgment in the suit filed by 19 state governments challenging the constitutionality of the laws establishing the Economic and Financial Crimes Commission (EFCC) and two other anti-corruption bodies.
The other two agencies are the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the Nigerian Financial Intelligence Unit (NFIU). All three agencies are key drivers in the fight against financial corruption in Nigeria. For a country ranked high on the global corruption index, nobody should dispute whether Nigeria needs such laws or not. The country needs them.
But what is being disputed is whether the laws setting them up were not themselves marinated in the same stew jar of corruption.
Several studies and inquests into corruption cases in Nigeria have shown that Nigeria’s corruption cases are not limited to fiscal transactions or financial underhand dealings. Cases of nepotism, non-adherence to the laws of the land, abuse of court process, subversion of court orders, not using the same yardstick to measure performance for everyone in exams, schools or workplaces, elevation of mediocrity over excellence for personal or group gain, among others form the body of rot that has weighed down the country. All are instances of corruption.
In the case of the EFCC and other agencies’ laws, the argument is whether in the course of making these laws to fight corruption, due process of the law was followed.
The plaintiffs in the instant suit marked: SC/CV/178/2023, had argued that the Supreme Court, in Dr. Joseph Nwobike Vs Federal Republic of Nigeria, had held that it was a UN Convention Against Corruption (UNCAC) that was reduced into the EFCC Establishment Act and that in enacting the law in 2004, the provision of Section 12 of the 1999 Constitution, as amended, was not followed.
In other words, between the National Assembly and the Executive, acts of corruption bordering on constitutional infraction were committed to birth the EFCC Act and others. This, they say, negates the principles of justice and procedural sanctity. You cannot fight corruption using a corrupted process or a legal instrument forged in the foundry of corruption.
The argument of the 19 state governments is that, in turning a Convention into a Nigerian law, the provision of Section 12 of the 1999 Constitution, as amended, must be complied with.
The 19 state governments assert that the provision of the Constitution demands that a majority of the states’ Houses of Assembly shall agree to bring the UN Convention into Nigeria before passing the EFCC Act or any other such law. They insist that this critical requirement which underscores the sovereignty of Nigeria and the country’s right to make laws for the Federation and the Federating units (States) was not met, neither was the constitutional procedure followed.
Section 12, subsection (2) of the Constitution states that “the National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty,” which in this case is the UNCAC, a treaty Nigeria ratified since 14 December 2004 from which the EFCC, ICPC and the NFIU Acts were enacted at the whim of the Executive and the National Assembly without the concordance and ratification from the state Assembles.
Subsection three(3) of section 12 states that “a bill of the National Assembly passed pursuant to the provisions of subsection (2) of the section shall not be presented to the President for assent, and shall not be enacted, unless it is ratified by a majority of all the Houses of Assembly in the Federation.”
In plain language, the 19 state governments are asking that the same way the Child Rights Act had to be domesticated and ratified by the state assemblies, so should the EFCC and other Acts be subjected to the scrutiny and ratification of a majority of the Sate Assemblies. In 2003, Nigeria adopted the Child Rights Act to domesticate the UN Convention on the Rights of the Child. Although the law was passed by the National Assembly it could not transit to an enforceable law until State Assemblies also codified and adopted it. No fewer than 24 states have domesticated the law.
According to 19 state governments, the provision of the Constitution necessitated the majority of the states’ Houses of Assembly agreeing to bringing the convention in before passing the EFCC Act and others. This, they say, was never done.
This is the argument of the 19 state governments in the EFCC and others suit. They argued that their ground had been corroborated by the Supreme Court in the aforementioned case, which is, that the EFCC law, as enacted, could not be applied to states that never approved of it, in accordance with the provisions of the Nigerian constitution. They argued that any institution formed on the basis of a law that is a product of Constitutional infraction should be regarded as an illegal institution.
At the resumed hearing on Tuesday, Imo, Bauchi and Osun states joined the suit as co-plaintiffs while Anambra, Ebonyi and Adamawa states announced their decisions to withdraw their suits. There had been inferences that more states are being lobbied to withdraw from the suit to whittle down the obvious momentum the plaintiffs (States) have gathered.
But lobby or no lobby, the 19 states should be commended for testing our laws. It is their legitimate right to seek legal interpretation of any law, whether an Act of Parliament or the Constitution. Lobbyists should steer clear of the plaintiffs, the Justices and any other party in this suit. Let justice be done, not judgment.
At the last hearing, the states in the suit are: Kogi, Kebbi, Katsina, Sokoto, Jigawa, Enugu, Oyo, Benue, Plateau, Cross River, Ondo, Niger, Edo, Bauchi, Imo, Osun, Nasarawa, and Taraba. The governments of these states are not all members of one political party. They cut across party interests, geopolitical interests and personal interests. Their intendment is eloquently captured by Mohammed Abdulwahab, SAN, who appeared for one of the plaintiffs. He told Justice Uwani Abba-Aji and the panel of Supreme Court Justices that “we are also challenging the foundation of those laws that created NFIU, EFCC, etc. in order not to create a constitutional crisis.”
The key issue is to avert “constitutional crisis.” No aspect of the Constitution should be breached or abused on the altar of political correctness. Nigeria’s democracy is still young and too fragile to be subjected to any form of constitutional abuse. In the course of making laws and advancing good governance, the sanctity of the constitution, our grundnorm (the fons et origo), the source of every other law and authority in Nigeria’s collective legal system, must be protected. Preserving the authority of the constitution far outweighs political correctness in any democracy.
ABOUT THE AUTHOR:
Obajimi, investment advisor, writes from Lagos
