Posted by By Linus Obogo (linusobogo@yahoo.com) on
Still unable to come to terms with the post-Obasanjo reality, the Economic and Financial Crimes Commission (EFCC), which rode the rule of law to a cliff under the imperial reign of the former president has been upbraided for its seeming unrestrained denigration of due process in its onslaught on grafts.
Still unable to come to terms with the post-Obasanjo reality, the Economic and Financial Crimes Commission (EFCC), which rode the rule of law to a cliff under the imperial reign of the former president has been upbraided for its seeming unrestrained denigration of due process in its onslaught on grafts.
Hurling the tirade against the Commission, following its grouse about the Attorney-General and Minister of Justice on the hearing of the petition brought by former Governor Uzor Orji Kalu of Abia State for the enforcement of his rights, social and rights campaigner, Fred Agbaje, noted that it was preposterous for the EFCC to arrogate to itself powers beyond its enabling Act.
While faulting the EFCC on its cloak and dagger approach in fighting corruption in the country, Agbaje, in a chat with Saturday Sun, noted that the era of brazen impunity was gone with Obasanjo who floated the agency for personal agenda.
Regretting the impunity hangover still plaguing the EFCC, which gave rise to the agency squaring up to the office of the Attorney-General, Agbaje noted: 'If this country were one that gives full respect to the rule of law, then the EFCC must act with the fullest consultation or in liaison with the minister of justice."
He also argued that the action of EFCC and its operatives amounted to corruption by refusing to subordinate itself to the legal norms from which it derives its legitimacy as an appendage of the executive.
Insisting that the anti-graft agency and other crime-related bodies are not insulated from the rule of law, the rights critic contended: 'It is embarrassing. It is wrong for the EFCC chairman to want to dare the Attorney-General. I repeat, it is morally, legally and constitutionally indefensible for the EFCC or it agents to want to challenge its supervisory ministry. And I have chosen each of these words with their full implications."
Blasting his professional colleagues, whom he described as EFCC merchants, Agbaje said the fear of losing their undeserved means of livelihood was behind their condemnation of the Attorney-General's directive to EFCC to adhere to the rule of law in carrying out its operations.
'I know the Attorney-General has a lot of fight on his hands. He's my colleague, but he has a lot of battles to fight, particularly with my colleagues who are EFCC merchants and consultants. The merchants in the legal profession will do everything possible not only to repel any attempt by the Attorney-General to rightly bring the EFCC under its supervisory body which is the ministry of justice, but to ensure that their new source of revenue is not aborted."
While chiding his colleagues for sponsoring critical commentaries against the chief law officer of the federation for his action in some media that have so far appeared subservient to the anti-graft body, Agbaje, however, dismissed insinuations that the Attorney-General's interventionist policy would whittle down the effort of the agency that is yet to defrock itself of the vestiges of Obasanjo's administration.
Place of rule of law in a democracy
There is no parting line between the rule of law and democracy. In fact, they are inseparable. There cannot be democracy without the rule of law. And once there is rule of law, there is democracy. None exits in isolation of the other.
The government itself is a creation of the rule of law and one of the basic elements of democracy is that it stands on the rule of law. The rule of law is a pillar on which democracy is firmly rooted. There must be the platform as rule of law for democracy to stand on. And that platform, which is the rule of law has been embedded in the constitution. Even as president, Yar'Adua, no matter how powerful cannot confiscate my property without following the due process of law like the military where they back date decrees to seize your properties without compensation. That is the beauty of democracy. Everything has to be done constitutionally. Anything that the government may do under the guise of democracy that runs foul of the constitution is not only unconstitutional, but an abuse of the rule of law. Any citizen of this country can challenge Yar'Adua for his action or inaction. All you need to do is to go to court and establish your locus-standi. Once you establish the fact that you have sufficient interest in the case in question, that is all.
The rest of Nigerians may be sleeping, but I have my interest to protect.
In the military government, you cannot even go to court in the first instance when you have been disenfranchised, you have been debased and your case was ousted from court, so the issue of locus becomes arithemetical during military regime.
EFCC and ICPC not insulated from rule of law
In a constitutional democracy, it presupposes that every arm of government, executive, legislative, judiciary are all a creation of the constitution. EFCC is an appendage of the executive. It cannot be greater than the constitution. So all the arms of government in Nigeria as of today have their origin and life span derived from the present 1999 constitution. They cannot grow taller, like the proverbial Okro, than the grower. No part of government can be greater than the constitution. Each organ of government is a creation of the constitution and therefore subservient to the constitution. The EFCC is not a creation of the constitution. At best, it is an arm of the executive, part of the government. Being a part of the government, it must remain absolutely within the clear provision of the constitution. No matter what colour is given to the EFCC Act, it is a creation of an act of the National Assembly. The law establishing EFCC cannot go against the clear provisions of the constitution. Therefore, if there is any part of the EFCC Act that is at variance with the Nigerian constitution of 1999, it is null and void.
The government of former president Obasanjo did everything possible to clothe the EFCC as an independent body that is not within the dictates of the constitution. But it must conform to the constitution.
Apart from that, it must conform to the greater laws of the land and that is the 1999 constitution. So the EFCC has two laws to comply with, the law establishing it and the Nigerian constitution. Where there are inadequacies in the EFCC's enabling act, such inadequacies have been cured by the 1999 constitution. So the EFCC cannot hide under it's enabling law which is the EFCC Act to act arbitrary and in a manner that is contrary to the 1999 constitution. But if there is any conflict between the EFCC Act and the 1999 constitution such that the provisions of the EFCC Acts is in conflict with the 1999 constitution, that portion of the EFCC Act is null and void.
Driving home my point further, the EFCC Act itself recognizes the fact that in carrying out its statutory responsibility to the society- duties of investigating, interrogation, arrest, prosecution, seizure of properties, they must act, not only in accordance with the clear provision of the constitution they must also consult with the office of the minister of Justice and attorney-general of the federation.
However, this does not apply to every aspect of its life. If the EFCC chairman wants to go to the toilet I don't think he needs to consult the attorney-general or even if he wants to marry. That is strictly his own business. His private proclivity. But when he wants to carry out his statutory duties, especially those pertaining to his office, with far reaching implications, he is to consult with the office of attorney-general.
It's wrong for EFCC to dare Attorney-General
It is embarrassing. It is wrong for the EFCC chairman to want to dare the attorney general. I repeat it is morally, legally and constitutionally indefensible and I have chosen each of these words with their fullest implications. It is indefensible for the head of an establishment parastal which is under the executive to rub shoulders with the supervisory ministry. It's like the chairman of NICON rubbing shoulders with the minister of finance or the DG of FAAN rubbing shoulders with the minister of Aviation. You are still subject to the supervisory minister.
If this country were one that gives full respect to the rule of law, then the EFCC must act with the fullest consultation or in liaison with the minister of justice. Do you know why? If the chairman knew the constitutional powers of the attorney-general and minister of justice, then he would not have tried it. The attorney-general is the number one person to be sued in all action concerning the Federal Government. In other words, the attorney-general is the albatross for all action or inaction of Federal Government. When you are talking about government, you talk about the federal, state and local government. The EFCC is just a parastatal of the federal government. Can a part be greater than the whole?
It would be foolish for the head of such a parastatal to say that because the law setting me up specifies that I am independent, I can disregard any other law. Such a chairman is only operating under his own laws. We operate under the laws of the constitution, that is how it ought to be.
Therefore, the EFCC, in treating suspects whether citizens or not, must abide by the civil rights of the people as enshrined in the fundamental law. That is where I have my grievances. Once court orders are given, they must be obeyed without looking for excuses.
Some of my lawyer colleagues are merchants to EFCC
I know the Attorney-General has a lot of fight on his hands. He's my colleague, but he has a lot of battles to fight, particularly with my colleagues who are EFCC merchants and consultants.
The merchants in the legal profession will do everything possible not only to repel any attempt by the Attorney-General to rightly bring the EFCC under its supervisory body which is the ministry of justice, but to ensure that their new source of revenue is not aborted. Because they have to consider their financial interests. Some of these merchants will do everything to protect the EFCC because it comes to them. Whether the EFC has acted clearly in contrary to the provisions of its enabling law and the constitution does not matter to them. As far as they are concerned, he who pays the piper dictates the tune. I sympathize with the Minister of Justice. I don't know what to say. I sympathise with him.
I have been following the event as it unfolds.
The minister of justice is still the constitutional supervisory body and the chief law officer and number one law officer of the federation. Not the lawyers to EFCC nor the police. This is what the minister was trying to do. But the issue suffered internal incoherencies because the minister was, with due respect to him, relatively unknown. He didn't know the polity would read it the way they read it. He didn't know that some of my colleagues would react the way they have reacted.
It was a good posture that the minister wanted to put the EFCC right where it belongs in accordance with the clear provisions of the constitution but his effort is being viewed with selfish motive from some of professional colleagues.