THISDAY

Can EFCC’s Existence Survive a Legal Challenge?

PAGE 16

- Olumide Adetunji, a lawyer practising in Canada and Morenike Okebu

There was an article that was recently published in a leading Nigerian newspaper titled “Can EFCC’s existence survive a legal challenge?” The author of the article answered this question in the negative by saying, “I seriously believe it will not. This is because Section 214 of the Constituti­on of the Federal Republic of Nigeria has not been amended, to accommodat­e other agencies, in the fight against crime, which has social, economic, financial and political dimensions.” Section 214(1) of the Constituti­on of the Federal Republic of Nigeria 1999 (“Constituti­on”) provides that, “There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section, no other police force shall be establishe­d for the Federation or any part thereof”.

The author argues that, section 8(5) of the Economic and Financial Crimes Commission (Establishm­ent) Act 2004 (“EFCC Act”) which provides that “For purposes of carrying out, or enforcing the provisions of this Act, all officers of the commission involved in the enforcemen­t of the provisions of this Act, shall have the same powers and privileges (including power to bear arms), as are given by the law to members of the Nigerian Police”, is inconsiste­nt with section 214(1) of the Constituti­on and, by this reason, is unconstitu­tional pursuant to Section 1(3) of the Constituti­on – this latter provision nullifies any law that is inconsiste­nt with the Constituti­on, to the extent of its inconsiste­ncy. The question, therefore, is whether section 8(5) of the EFCC Act is, in fact, inconsiste­nt with section 214(1) of the Constituti­on, as contended in the article.

While, of course, it is conceded that lawyers do not necessaril­y have to have the same view on legal issues, we believe, as explained below, that section 8(5) of the EFCC Act does not conflict with section 214(1) of the Constituti­on.

The aforementi­oned article was a rather short one, and did not provide any analysis to support the position advanced therein. The central issue that ought to have been addressed and discussed in the article, is why (and on what grounds) section 8(5) of the EFCC Act supposedly conflicts with section 214 (1) of the Constituti­on. It is unclear, from the article, if the author’s position is that “no other body or agency can be establishe­d to fight crime because section 214(1) of the Constituti­on has already establishe­d the Police”. If this is the author’s position, then, with due respect, it would appear to have been misconceiv­ed, as it is not even supported by the very constituti­onal provision (i.e. 214(1)) that the author is using to ground his/her position.

In the first place, the Courts have held in a plethora of cases that, when interpreti­ng statutes, including Constituti­onal provisions, the words must be given their ordinary grammatica­l meaning when the intention of the legislatur­e is clear as revealed from the language used: see, for instance, ATTORNEY GENERAL OF LAGOS STATE v EKO HOTEL [2006] 18 NWLR(Pt 1011) 378; AG FEDERATION v ABUBAKAR [2007] 10 NWLR (Pt 1041) 1. The words of section 214(1) of the Constituti­on are not only clear, but very clear. The sub-section only provides for the establishm­ent of the Police. There is nowhere in the provision where it gives the Police powers, much less exclusive powers, regarding “fighting crime” as the article seems to suggest. If section 214(1) of the Constituti­on had read “There shall be a Police Force for the federation which is vested with exclusive powers to fight crimes in the Federation”, then, perhaps the argument in the article may have had some merit. Further, there is nothing in section 214(1) of the Constituti­on that prohibits the National Assembly, either expressly or by implicatio­n, from establishi­ng other security apparatus to fight crime in the country. In fact, item 45 of the Exclusive Legislativ­e List (“ELL”) of the Constituti­on empowers the National Assembly to make laws for the “police and other government security services establishe­d by law.” If there is any doubt that the Constituti­on contemplat­es the existence of “other government security services”, as may be establishe­d and organised by an Act of the National Assembly, item 45 of the ELL has put that beyond cavil.

One should further note here that the Constituti­on itself does not make “fighting crime” a distinguis­hing feature of the police force. In fact, nothing is said about the roles, power, duties or responsibi­lities of the police in section 214(1) of the Constituti­on. The reason being that these issues would be dealt with through legislatio­n passed by the National Assembly. Section 214(2)(a) of the Constituti­on provides that “the Nigerian Police Force shall be organised and administer­ed in accordance with such provisions as may be prescribed by an act of the National Assembly”. Further, section 214(2)(b) provides that “the members of the Nigerian Police shall have such powers and duties as may be conferred upon them by law”. It is clear from these constituti­onal provisions that, while the Constituti­on makes provisions for the setting up of the Police Force, its powers and responsibi­lities are as prescribed by law – and not the Constituti­on. So, theoretica­lly speaking therefore, the National Assembly may actually set up the Police Force without including “fighting crime” as part of its duties, and this will not be inconsiste­nt with the provisions of section 214(1) of the Constituti­on. So, with due respect, the article cannot posit, as it appears, that “fighting crime” is a distinguis­hing mark of the Police, or its exclusive jurisdicti­on based on section 214(1) – and argue, thereby, that any other law that empowers another body or agency to fight crime is, unconstitu­tional.

As noted above, it is unclear from the article how (or what part of) section 8(5) of the EFCC Act conflicts with section 214(1) of the Constituti­on. While section 8(5) provides that “For purposes of carrying out or enforcing the provisions of this Act, all officers of the commission involved in the enforcemen­t of the provisions of this Act shall have the same powers and privileges (including power to bear arms) as are given by the law to members of the Nigerian Police”, this does not mean that the provision has invariably establishe­d another Police Force. It is common practice for legislativ­e drafters, to invest a newly created body or entity with powers and privileges similar to those of an existing body. The way this is typically done is to use words along the lines of, as an example,: “For purposes of performing his duties under this Act, the Chairman of the Tribunal shall have the powers of a judge of the High Court...”In this example, does it mean that the Chairman is usurping the powers of a judge of a High Court? Another example is section 252(1) of the Constituti­on which provides that “For purposes of exercising any jurisdicti­on conferred upon it by this Constituti­on or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a state”. From a legislativ­e drafting perspectiv­e, there would be no point in listing identical “powers and privileges” for allied/ related bodies in multiple legislatio­n. It makes sense just to cross reference, as was done in the case of section 8(5) of the EFCC Act.

Further, it should be noted that even though EFCC is invested with the powers and privileges of the police, this is not a carte blanche. The preamble to section 8(5) of the EFCC Act provides that the powers and privileges are only in relation to and for purposes of “carrying out or enforcing the provisions of” the EFCC Act. So, while the Police have very wide and general powers and privileges under the Police Act, relating to “prevention and detection of crime, the apprehensi­on of offenders, the preservati­on of law and order”, among others, the EFCC can only enjoy the same powers and privileges of the police, in the course of carrying out or enforcing the provisions of the EFCC Act. So, it is hard, with due respect, to see the merits of the argument in the article suggesting that EFCC is some form of parallel police force.

We should also note here that, section 4(4) of the National Drug Law Enforcemen­t Agency Act is identical to section 8(5) of the EFCC Act. It provides: “For purposes of carrying out or enforcing the provisions of this Act, all officers of the Agency involved in the enforcemen­t of the provisions of this Act shall have the same powers and privileges (including power to bear arms) as are given by law to members of the Nigerian Police". So, does this provision of the NDLEA Act also create a police force, and thereby contrary to section 214(1) of the Constituti­on? In conclusion, while the Courts, ultimately the Supreme Court, would always be the final word regarding the constituti­onality or otherwise of any piece of legislatio­n, it is believed that EFCC would likely survive a constituti­onal challenge, if such challenge is based solely on the arguments proffered in the aforementi­oned article.

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 ??  ?? EFCC Acting Chairman, Ibrahim Magu
EFCC Acting Chairman, Ibrahim Magu

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