‘AGF, EFCC face-off politically motivated’

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Ibrahim Magu

• Superior Authority Should Call Them To Order —Sagay
• Separation of AGF From Minister Of Justice Way Out —Ola-Daniels

With Wednesday’s allegation by the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), that the “ignoble role” of the Acting Chairman of the Economic and Financial Crimes Commission, Ibrahim Magu, led to the country’s suspension from the Egmont Group of Financial Intelligence Units, there appears no end in sight to the fight between the two officers.

The shadow-boxing between the two officials, clearly became public knowledge, when a statement by the Special Assistant to Malami on Media and Publicity, alleged that Magu had frustrated efforts to make the National Financial Intelligence Unit independent of the EFCC, as required by the global financial intelligence body. The statement also pointedly accused Magu of frustrating the Federal Government’s anti-graft war. This was after the minister had directed the EFCC to hand over case files in these matters to his office, but without compliance.

As the sparing gathers momentum, legal practitioners are worried about the debilitating impact the it would have on high profile corruption cases in the country.

According to Chairman, Presidential Committee on Anti-corruption, Prof. Itse Sagay (SAN), even though the AGF has the constitutional powers to supervise the EFCC, he needs to exercise discretion in doing so.

While maintaining that it was uncomfortable for the EFCC to release files it was already working on to the AGF, he warned that such conflicts would endanger the battle against graft in the long run.

His words: “In terms of hierarchy of authority, the AGF is certainly the chief law officer of the federation. Therefore, the various anti-corruption agencies are technically under his supervision. But you know that they are all setup by law separately, and given their specific powers by law. In that view, the attorney general would always use his discretion in dealing with them. It is not a situation where you can stamp your feet hard. The authority is there, but meant to be used with a lot of discretion.

“In the EFCC Act, some powers were given to him to make regulations and so on. So, it is within his powers to demand those files, but that doesn’t mean that he should exercise that right because the EFCC is very effective, prosecuting all their cases very vigorously. As you know, they have made tremendous amount of recovery of assets beyond our aspirations at the beginning. So, it seems uncomfortable releasing files of cases, which they are already prosecuting.

“I think there should be dialogue between them, and for the AGF to give them a lot of autonomy to be able to do their job effectively. I don’t think it is proper to remove files and take over prosecution because if you do that, there is the tendency that you would be a freshman in a matter, which the EFCC is already deeply engaged, and I am not sure that the Ministry of Justice has much manpower to take up extra things beyond what they are presently doing. So, it is a sorry situation.

“I think that an authority superior to both of them should call them together and advise them on how to relate with each other. Of course, the EFCC should respect the authority of the AGF, and the AGF should also avoid interfering with what the EFCC is doing because that may be a setback to the anti corruption war, he stated.

Also, another Senior Advocate of Nigeria, who preferred to be remain anonymous, criticised the AGF for demanding for case files, stressing that the action was politically motivated. He warned that unless the Presidency intervenes, the situation may degenerate.

“If you look at Section 3 of the Independent Corrupt Practices and other Related Offences Commission (ICPC) Act, it says that the ICPC shall not be subject to the directive of anybody, authority or person. In the case of EFCC, the only thing that the AGF can do is to make rules for the EFCC, rules that are in line with their mandate. There is no law that says that EFCC must report to the AGF.

“Section 27 of the EFCC Act, mandates the EFCC to submit a written report to the National Assembly not later than September of every year. It does not say it must go to the Attorney General. The only link is that the Attorney General has the power, under Section 174 of the 1999 Constitution to take over any case being prosecuted by the EFCC. But no law says the EFCC or the ICPC must take its files to the AGF.

“In fact, that argument was laid to rest in 2007, when Yar’Adua came on board and the then AGF, Mike Aaandoaka, issued a directive to the anti-graft agencies to submit all their high profile cases to him. I was at the West African Bar Conference in Dakar. I issued a statement that it was an illegal directive. The court in the case of Osahon Vs FRN, the Supreme Court said any agency with prosecutorial powers is competent to initiate any criminal proceedings, subject to the power of the AGF to take over. It did not say they cannot start. If you hand over the files to the AGF, he will do nothing with them,” the SAN declared.

Olumide Babalola, a legal practitioner, who admited that the constitution gives the AGF the power to prosecute any offence to the exclusion of any other agency, including the EFCC, is suing for peace between the two.

“It is the EFCC that investigates, so that gives it an edge. The agency is presumed to know all the facts of the matters they investigate, and therefore, presumed to be in the best position to prosecute such matters. The EFCC was specifically created to prosecute corruption cases. I think the two should think on how they can work harmoniously.

While deploring the rising levels of inter-agency disharmony that has characterised this government, as also reflected in the clash between the DSS and the EFCC chairman, he noted that all these are “going to affect the fight against corruption.”

He stressed the need for anti-corruption and law enforcement agencies to work hand-in-glove with each other in order not to endanger the war against corruption, which this government claims to be one of its strong points.

For Olayinka Ola-Daniels, the only way out of this recurring embarrassment is to separate the Office of the Attorney General, from that of the Minister of Justice.

He said as long as one person still serves in the two offices, there was bound to be conflict of interest.

“He (Malami) is the Attorney General of the Federation, as well as the Minister of Justice. Somehow, it can be politically manipulated. The powers that be can influence his decision by telling him cases they are interested in. That is why you see him requesting for files. Mr. Attorney General is fighting for the files of some peculiar people. How come he did not ask for the list of important cases all day long, even before this so-called fight started? It is because he wants to tell the EFCC to step down on ‘this or that matter.’

“The essence is that by tomorrow, he can also file a nolle prosequi and discontinue a matter. We know he is the number one law officer of the nation, but the question we should ask is: on whose side is he? Is he on the side of justice, public interest or for his cabal? Babalola questioned.

As a way of addressing similar challenges in the future, Alfa Abdulbaiki, another legal practitioner is also recommending the separation of the office of the AGF from that of Minister of Justice because of overbearing political interferences.

Abdulbaiki is also advocating making the EFCC not subject to the supervision of the Office of the AGF, and placing it in the hands of the Senate. “In this way, it would not hamper the fight against corruption. The independence of the EFCC would be couched in such a way to check its activities so that it won’t also hamper the fight against corruption,” he stated.

Efosa Ewere, who thinks differently, is blaming the EFCC for disobeying a lawful directive from the AGF’s Office.

Admitting the conflict could thoroughly frustrate the anti-graft war, she added, “It is evident that where two elephants fight, the grass would suffer. When you have lack of unity in such a system, there certainly would be consequences. This may actually slow down the war against corruption.

“The EFCC as a body is established with its own powers. The truth is that there should always be some checks and balances. I think that when the AGF, who is empowered by law to supervise EFCC gives a directive, it should be respected. It is disobedience and insubordination to refuse to follow instructions.

“When you have such directives to hand over files, I think the files should be handed over,” she said, adding that the anti-graft agency could explore better channels of complaint when it suspects that there are compelling reasons not to handover the files, instead of engaging in endless bickering.”