ADOPTED EDITORIAL: EFCC, ICPC, NFIU: Litmus test for the Supreme Court

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Supreme Court of Nigeria

The ongoing legal tussle between 16 States of the Federation and the Federal Government presents a litmus test for the Supreme Court under the leadership of the Chief Justice of the Federation (CJN), Hon. Justice Kudirat Motonmori Olatokunbo Kekere-Ekun (GCON). During her swearing-in by President Bola Ahmed Tinubu as Nigeria’s 23rd substantive CJN on Monday, September 30, 2024, Hon. Justice Kekere-Ekun had vowed to do all in her power to protect the independence and integrity of the Judiciary. To quote her: “Under my leadership, the Judiciary would adhere to the principles of honesty, transparency and integrity and that independence of the judiciary is always a topical issue . . . at the Supreme Court. For instance, our judgments are free from external influence. While it is essential for the judiciary, as the third arm of government, to maintain good working relationships with the executive and legislative branches, this should not be misconstrued as subservience.

“This is a new dawn and a new era in the Nigerian Judiciary. I wish to assure my fellow Nigerian citizens that we are committed to working more diligently to improve public perception of the Nigerian Judiciary.

“Over the years, various factors have contributed to the negative image of the Judiciary. However, we are determined to change this narrative and make the Judiciary a source of pride for all Nigerians. When the legal compass of a Nation falters, everything suffers, including public and international perception . . .”

The case between the 16 States and the Federal Government (16 states Vs. Attorney-General of the Federation) on the legality of the Federal anti-graft agencies presents a golden opportunity for the Supreme Court under the watch of Hon. Justice Kekere-Ekun to convince Nigerians of its independence from the Executive arm of government.

FACTS OF THE MATTER

The Contention of the Plaintiffs in Suit No SC/178/2023 (16 states Vs. Attorney-General of the Federation) is that the Federal Government cannot under any guise control funds appropriated by Houses of Assembly of the Plaintiffs.

The Plaintiffs are also contesting the Constitutionality of the EFCC Act, in the light of the decision of the Supreme Court in the case of Nwobike Vs. Federal Republic of Nigeria, that the EFCC Act was based on a United Nations Convention against corruption, same having not been ratified in line with Section 12 of the 1999 Constitution (as amended).

 

The Plaintiffs are therefore asking the Supreme Court to nullify the EFCC, ICPC, NFIU and Proceeds of Crime Act,all rooted in United Nations Convention and protocol, having not been ratified by the Houses of Assembly of the Plaintiffs in line with Section 12 of the 1999 Constitution.

Section 12 (1) of the Constitution says: “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

“(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Executive Legislative List for the purpose of implementing a treaty.

“(3) A Bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.”

The Supreme Court had ruled in the case of Nwobike Vs. Federal Republic of Nigeria that the EFCC Act is a product of the United Nations Convention against corruption. The position of the Plaintiffs in16 states Vs. Attorney-General of the Federationis that the EFCC Act arising from the UN Convention, being an item not contained in the exclusive legislative list, recourse should have been had to States as stakeholders in the Federation in line with Section 12 of the 1999 Constitution.

The 1999 Constitution is very clear on the areas the National Assembly has exclusive preserve to make laws, the areas the States have and the areas both the National and State assemblies share legislative powers. The Acts in dispute, being rooted in UN Convention and protocol, do not fall in any of those categories, as a result of which compliance with Section 12 of the 1999 Constitution was a mandatory requirement. Therefore, in the view of the Plaintiffs, failure to comply with Section 12 of the Constitution before the enactment of the Acts was fatal.

On it’s part, the Defendant to the suit, the Attorney General of the Federation (AGF), did not deny that the Acts were rooted in the United Nations Convention but argued that the concurrence of States of the Federation as stakeholders was not necessary for the validity of the Acts. By this, the Defendant meant that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts. The Plaintiffs have described this as a strange argument, noting that the Defendant had by that argument curiously implied that the findings of the Supreme Court in NwobikeVs. Federal Republic of Nigeria that the UN Convention gave birth to the Acts was not relevant.

EFCC NOT FIGHTING CORRUPTION

Those alleging pressure on the Plaintiffs further allegeintense lobbying over the last weekend for states to withdraw from the suit, saying that it shows the kind of pressure that could be on the Supreme Court judges. This, according to them, indicates that the Federal Government is jittery because the law that established EFCC, ICPC and NFIU is not domesticated and, thus, against the spirit of 1999 Constitution. Such ones argue that if we want to fight corruption, it must be done legally and constitutionally.

However, Nigerians are optimistic that the apex court would rise to the occasion as it did on many occasions in the past.

This hope is strengthened by the inaugural speech of the new Head of the Judiciary, Hon. Justice Kekere-Ekun (GCON), as quoted earlier.

From all indications, it is not only the law setting up the EFCC, ICPC and NFIU that is on trial but also the Supreme Court itself that is on trial. Its judgement will, in the circumstances, shape the public perception of the apex court under the watch of Hon. Justice Kekere-Ekun (GCON).

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