At the Centre of the recent controversy surrounding the activities of the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other Related Offences Commission (ICPC) is the question: should the anti-graft Agencies initiate prosecutions independent of the Attorney-General (AG) and Minister of Justice?
On Monday, President Umaru Yar’Adua directed that the EFCC, the ICPC, the Code of Conduct Tribunal and other Agencies involved in the prosecutions of criminal offences should seek the consent of the Attorney-General and Minister of Justice, Mr. Michael Aondoakaa. The Agencies were also asked to report to the Attorney- General in line with the relevant laws. In other words, the President made it clear that not even Law enforcement agents could be above the Law.
This immediately triggered a fierce debate among lawyers and other enthusiasts of the anti-corruption war.
The tension appeared to have been lowered by the clarification made 24 hours later by the Attorney General that while the EFCC, ICPC and other Agencies could go ahead with the prosecution of corrupt officials he would still exercise his oversight functions in line with his constitutional powers. While the constitution gives powers to the Attorney-General to initiate prosecution, it does not debar other Agencies including private persons from embarking on prosecutions. It only gives the Attorney-General further powers to intervene and discontinue prosecutions at any time just as the enabling laws of EFCC and ICPC put them under the watch of the Attorney-General.
To be sure, the record of accomplishments of the EFCC in the anti-corruption war is laudable. The agency under the passionate and energetic chairman, Mallam Nuhu Ribadu, has brought much credibility to Government ’s campaign against corruption. It has prosecuted creditably (though at Times overzealously) private individuals and Public office holders caught on the wrong side of the Law as it has over 200 convictions to show for it. By its activities, the culture of impunity, especially in Public office, has been greatly stymied: indeed the fear of EFCC is the beginning of wisdom in Public office.
On the other hand, the ICPC has been more conservative and systematic in its approach and has recently announced that it is ready, willing and able to commence prosecutions against some former Public officers.
However, the Attorney General and, indeed the Yar’Adua administration, cannot be faulted when they insist that no Public officer or agency should be above the Law in the performance of duties.
Given the arbitrariness of the last eight years, we support this position that be it the President, Attorney General , EFCC or ICPC, All actions should be in strict conformity with the constitution and the relevant laws. For Nigeria ’s democracy to grow, All must tow the path of constitutionalism at All Times . Yes, corruption must be fought unyieldingly, but this must be done within the ambit of the Law and due process, as you cannot use illegal means to seek lawful objectives.
Having said that, we believe there is a lot of wisdom in allowing the EFCC and the ICPC to continue with prosecutions they have already initiated since the Ministry of Justice, as constituted at present, lacks the needed Resources and personnel to perform this huge task satisfactorily.
Taking over the prosecutions will needlessly expose the Attorney-General, who could be accused of bungling the cases should they be lost in court. The EFCC and ICPC should be left alone to conclude the cases they have initiated in court. For New cases, the Agencies should work with the Attorney-General in line with the spirit and letters of the relevant EFCC and ICPC laws. We do not want to believe that because Attorney-General Aondoakaa acted in the past as lawyer to opponents of EFCC he would compromise current investigations and prosecutions. We rather believe that as a Senior Advocate of Nigeria , who has sworn to an oath of office as Attorney-General, his intentions Are noble and genuine and we do not expect anything less of him.
Doubtless, this Development has thrown up larger issues. The First issue is constitutional. We believe that there should be a separation of office of the Attorney- General of the Federation from that of the Minister of Justice.
While the Attorney -General should be the Number One Prosecutor of the Federation with full complements of Deputy Attorneys-General and other Professional assistants, a Justice and prosecution System with a full career path should be established in his office so that brilliant prosecutors could aspire to the post of Attorney -General strictly on merit and professionalism. The Minister of Justice could be a politician and Federal Government ’s lawyer and Chief legal Adviser . It is the job of the National Assembly to affect this in the course of the proposed constitution review.
Meanwhile, since the Attorney-General wants a more robust approach to prosecution, the Ministry of Justice has to begin the process of internal reforms by First attracting a good number of Special Prosecutors in its employ. The calibre of the prosecutors should be such that would exude Authority and inspire Confidence in the eyes of the people of Nigeria . These lawyers, who should be of the rank and experience of Senior Advocates of Nigeria (SAN), have to be provided with Resources to embark on robust prosecution of criminal cases. With such an arrangement, the Attorney- General could muster the capacity to take over cases as he deems fit.
With the clarification made by the Attorney General , there is no reason why the EFCC, ICPC and other Agencies cannot work in tandem with the office of the Attorney General in ensuring that the anti-corruption campaign of the Government gathers more steam. After All , the EFCC and ICPC Are Products of the office of the Attorney -General.
We, therefore, call on the EFCC, ICPC and other Agencies to continue their anti-corruption activities with the oversight of the Attorney -General as constitutionally prescribed.