EFCC Act: To be repealed or not?

Last Tuesday, Attorney-General of the Federation (AGF) and Minister of Justice Abubakar Malami proposed the repeal and re-enactment of the Economic and Financial Crimes Commission (EFCC) Act. He said this would make way for a comprehensive overhaul of the issues in the Act which have been hampering its fight against corruption. But lawyers conversant with EFCC operations are divided on the proposal, ADEBISI ONANUGA writes.The Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami, last week wrote to the House of Representatives seeking a review of the Economic and Financial Crimes Commission (EFCC) Act 2004, to remove all lacuna hindering the performance of its duties.The AGF asked members of the Lower Chamber of the Legislative House for a comprehensive review of the Act. Alternatively, he suggested they repeal and re-enact the Act, to come up with a new and harmonised bill that would address the issues he raised.The House Committee on Financial Crimes, chaired by a member of the All Progressives Congress (APC) from Ogun State, Mr. Kayode Oladele, last Tuesday presented two bills to the House for public hearing: “A Bill to Amend the Economic and Financial Crimes (Establishment) Act” and “A Bill to Amend the Money Laundering (Prohibition and Prevention) Act”.

The AGF, it was reported, gave a long list of proposed amendments which included a bill granting autonomy to the Nigerian Financial Intelligence Unit (NFIU), currentlty domiciled under the EFCC.The AGF proposed the setting up of a sub-committee of the lawmakers, the EFCC, his office and other stakeholders to do a thorough review of the Act. The EFCC is said to be in full support of a harmonised bill as it would strengthen the agency.However, while the EFCC agrees with the AGF’s proposal on the need for a harmonised and a comprehensive bill, the Nigerian Law Reform Commission (NLRC) is not favourably disposed to it.  EFCC Act 2004

 The EFCC Act 2004 established the commission. The Act mandates the EFCC to combat financial and economic crimes. The commission is empowered to prevent, investigate, prosecute and penalise economic and financial crimes’offenders, and is charged with the responsibility of enforcing the provisions of other laws and regulations relating to economic and financial crimes, including: Economic and Financial Crimes Commission Establishment Act (2004); The Money Laundering Act 1995; The Money Laundering (Prohibition) Act 2004; The Advance Fee Fraud and Other Fraud Related Offences Act 1995; The Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994; The Banks and other Financial Institutions Act 1991; and Miscellaneous Offences Act.Based on this mandate, the EFCC, under its Acting Chairman, Ibrahim Magu, has been at the forefront of the fight against corruption, sometimes, using a combination of these laws.While observers of the polity see the need to review the EFCC Act, they however don’t agree with the proposal to repeal the act against the background of many recoveries made by the commission. To this group, a repeal of the act is suspect, given the recent face-off between Magu and NGF. They questioned the need to repeal the Act through which, in their view, the agency made huge financial recoveries and convictions. EFCC successes There is a general belief that Magu, in spite of the non-confirmation of his position by the lawmakers, has performed as well as, if not better than, any of his predecessors.For instance, under Magu, the EFCC has secured 340 convictions in courts for various offences and recovered billions of dollars of stolen funds within the last six months.In addition, the commission using the mechanism of the non-conviction-based forfeiture provided under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, had made a lot of recoveries. This year alone, the commission recovered stolen assets running into several millions of dollars and billions of naira.These include the $43 million recovered from Diezani Alison-Madueke, Nigeria’s former Minister of Petroleum, and N2 billion from seven accounts within three Nigerian banks laundered from the Federal Capital Territory Police Command Salary Accounts.The country had also made progress in specific cases related to Abacha loot, Malabu Oil, Diezani and associates, and the arms procurement scandal.Another instance is the recovery of $9.2 million and 750,000 pounds from the home of Mr Andrew Yakubu, a former Group Managing Director of the Nigerian National Petroleum Corporation (NNPC) in Kaduna State. The money is said to be in excess of N3 billion at the official exchange rate.There was also the case of a public servant from whom the agency recovered N1.25 billion. Why a review of EFCC Act may be desirable Some observers, however, appeared to be in agreement with the AGF whose office, sometimes, disagrees with the EFCC on how it handles high-profile anti-graft cases. Non-diligent prosecution ofPEP cases Although many of the EFCC cases involving Politically-Exposed Persons (PEPs) are yet to be concluded, and many other PEPs are under EFCC investigation, the commission has been accused of poor and non-diligent prosecution of a few of the PEP corruption cases it has lost.Critics say these are the main reasons the agency has hardly secured convictions of high-profile persons for allegedly looting the country’s treasury, notwithstanding the huge funds recovered in some cases.They argued that this was why President Muhammadu Buhari-led administration was yet to score a high profile conviction since it began its war against corruption in May  2015. Appointment of EFCC chairman One contentious issue which attracted attention of observers was the appointment and confirmation of the chairman of the commission. There have been arguments whether or not the President requires the confirmation of the Senate for the appointment of EFCC chairman.The mostly referred sections in the matter are 1(1) and (3) of the 1999 Constitution (as amended) and Section 171(1) (2) of the same constitution, vis-a-vis Section 2(3) of the Economic and Financial Crimes Commission (EFCC) establishment Act 2004.The non-clarity of the interpretation of this Section of the Constitution and the EFCC Act has been one of the reasons why Magu remains Acting Chairman of the commission. Inadequate funding of the EFCC Some observers believe all inhibitions must be removed if the EFCC must function to expectation.One way of achieving this, they said, is ensuring adequate funding of the agency. But how can this be achieved? Is a repeal and re-enactment the answer?During a plenary sitting of the House of Representatives last week,  the Secretary of the commission, Mr. Emmanuel Adegboyega, who represented Magu, made a case for adequate funding of the agency as stated among the amendments proposed for the EFCC Act.He emphasised the importance of proper funding of the agency if it must work and deliver on the expectations of the government and the people of Nigeria.To this end, he requested that a fraction of the money, up to five per cent, recovered by the commission within the last two years, be allocated to the agency to speed up its activities.But the NLRC opposed the idea of giving some percentage of recovered loot to the EFCC. Its representative, Prof. Jummai Awudi, argued that it would be “legally and morally wrong” for the commission to keep part of the recovered money to itself. Suspension of NFIU fromEgmont Group In the heat of the controveray, the Senate and the office of the AGF blamed Magu for the suspension of the Nigeria Financial Intelligence Unit (NFIU) from the Egmont Group.The Egmont Group is a body of Financial Intelligence units whose members compare notes on matters relating to international finance and illicit flow of monies.Presently, the NFIU operates as a department under the EFCC. But the Senate and Malami would prefer that the NFIU operated independently.The AGF alleged that the EFCC had been “manipulating and misusing intelligence to the detriment of the fight against corruption and financial crimes in Nigeria”, adding that the commission was not happy with the effort of the government to have an independent NFIU.The independence of the NFIU is one of the amendments to the EFCC Act proposed by the office of the AGFAccording to Malami, this request is reinforced with the need for a review of the NFIU operatives and operations to make it stronger for Nigeria’s re-admission to the Egmont Group. Lawyers reaction Lawyers who are conversant with the workings of the EFCC, however, see the proposal of the AGF in another light.To, them, a repeal or re-enactment of the Act is dangerous and might not be in the interest of the commission and the fight against corruption.They include activist lawyer Festus Keyamo (SAN), a former member of the Ogun State Judiciary Service Commission, Abayomi Omoyinmi, and former Welfare Secretary, Nigerian Bar Association (NBA), Ikeja Branch, Samson Omodara.Keyamo said the controversy over the NFIU was needless. According to him, the functions of the NFIU were so closely connected to EFCC operations that it was not practicable for both organisations to be separated in the way that is being proposed.He, however, said he would make more comments when a full detail of what is to be done on the matter becomes public.Omoyinmi said the AGF’s  proposal on total repeal and re-enactment of the EFCC Act is wishful. “It cannot be achieved and I believe it is very unnecessary to have the whole Act repealed.“I am of the opinion that the Act can go through a steady review in line with amendment which is under consideration by the National Assembly. The grey areas observed should be attended to during the course of reviewing the Act which obviously would be put forward for amendment.“Attention should be given  to areas of funding, training, special powers ,investigation and prosecution. These are areas that may need to be reviewed and that can strengthen the functions of the commission as we presently have it as opposed to total repeal proposed by the AGF,” he said.Omodara also opposed a repeal of the Act. According to him, “our problem in this country is not lack of laws but holistic and spirited implementation of these laws, EFCC Act inclusive”.He argued “no law is flawless even the grundnorm. I therefore will not subscribe to a total repeal rather an amendment as it has been done to the Electoral Act. The officers responsible for the investigation and prosecution of suspects must be thorough and patriotic.  The punishments as contained in the Act may also be looked  into with a view to deterring corruption. Capital punishment may be considered like the China’s position”, he advised.Source: The Nation