Federal Government weakens power of EFCC chairman, gives AGF supreme power over EFCC in new bill

The Federal Government of Nigeria has weakened the power of the office of the Chairman of the Economic and Financial Crimes Commission as a new bill seeking to amend the Economic and Financial Crimes Act has created a new and higher position known as the Director-General of the EFCC. understands the bill which is titled, ‘An Act to Repeal the Economic and Financial Crimes Commission (Establishment) Act, 2004 (act no. 1 of 2004) and Enact the Economic and Financial Crimes Commission Act Which Establishes a More Effective and Efficient Economic and Financial Crimes Commission to Conduct Enquiries and Investigate All Economic and Financial Crimes and Related Offences and for other Related Matters’ is being put together by the Attorney General, Abubakar Malami (SAN), on behalf of the Federal Government for onward transmission to the National Assembly.

The bill will see the EFCC not being independent anymore as it gives the AGF the power to cancel the prosecutorial power of the EFCC, this means that the AGF can stop any ongoing case of the EFCC against financial crimes suspects when he sees fit.

According to the proposed law which was initiated barely weeks after the suspension of the acting Chairman of the EFCC, Mr Ibrahim Magu who accused Malami of frustrating the anti-corruption war of the President, Major General Muhammadu Buhari (retd), the director-general will be appointed by the President based on the recommendation of the AGF and subject to confirmation by the Senate.

Section 8 of the bill reads in part, “There shall be for the commission, a director-general who shall be appointed by the President on the recommendation of the Attorney General subject to the confirmation by the Senate.

“Subject to the provisions of subsection (3) of this section, the Director-General shall be a retired or serving member of any government institution, including any security or law enforcement agency not below the rank of a director or its equivalent or a person from the private sector.

“A person shall not be appointed as a director-general unless he is of proven integrity and has 15 years cognate experience in security, forensic or financial crimes investigation; forensic accounting or auditing; or law practice or enforcement relating to economic and financial crimes or anti-corruption.”

The bill gives the director-general, and not the chairman, the power to be in charge of the running of the daily affairs of the commission. However, the chairman of the EFCC shall be the head of the EFCC board.

The bill also states that the director-general, shall hold office for a period of four years subject to reappointment by the President for a further term of four years and no more.

Other members of the board shall include the director-general, a representative of the Federal Ministry of Justice, a representative of the Central Bank of Nigeria, the Director of Nigerian Financial Intelligence Unit, two other Nigerians with 15 years cognate experience in legal, finance, banking or forensic auditing and the Director of Administration who shall be the secretary of the board.

The proposed law states that the chairman and members of the management board shall be appointed by the President, on the recommendation of the Attorney General subject to confirmation by the Senate; and for a period of four years in the first instance, renewable for another period of four years and no more.

The EFCC board headed by the chairman will be in charge of establishing policy guidelines for the commission; review and approve the strategic plans of the commission; oversee the due performance of the functions of the commission in accordance with the provisions of this Act; and do such other things which in its opinion are necessary to ensure the efficient and effective performance of the functions of the Commission under this Act.

The Secretary of the EFCC, which is a creation of Section 8 of the existing EFCC Act is not mentioned in the new bill, indicating that the position has been scrapped.

The current EFCC Secretary, Ola Olukoyede, who has also been suspended by Buhari pending investigation, is in charge of the secretariat of the commission and is responsible for the administration of the secretariat and the keeping of the books and records of the commission.

The proposed law not only restates the power of the AGF to discontinue the prosecution of criminal cases as guaranteed in Section 174 of the 1999 Constitution, it empowers the AGF to cancel the prosecutorial power of the EFCC when he sees fit. Section 45 of the new bill states that the AGF may, after notifying the EFCC, intervene in court proceedings, at first instance or on appeal, where, in the opinion of the AGF, public interest, the interest of justice and the need to prevent abuse of legal process so demand.

It further reads, “On receipt of the notice under subsection (2) of this section, the commission shall hand over to the Attorney-General the prosecution file and all documents relating to the prosecution and provide him with such other information as he may require on the matter within the time specified by him.

The commission shall furnish returns of all cases handled by it annually and in such manner and at such intervals as the Attorney-General shall direct.

“Where the commission fails to comply with the provisions of this section, the Attorney General may, subject to prevailing circumstances, revoke the power to prosecute from the commission.”

Efforts to get a reaction from the AGF’s office on Saturday proved abortive as his spokesman, Umar Gwandu, did not answer telephone calls.

However, in a statement signed by Gwandu on August 25, 2020, the AGF said the constitution already gave him enormous powers to supervise the EFCC and other agencies regardless of the EFCC Act.

The statement titled, “I don’t need more powers to supervise agencies’, read in part, “The Attorney General of the Federation does not need the tinkering of the current EFCC (Establishment) Act 2004 to enable him to regulate the institution and could, therefore not, in any way, seek to sponsor any bill for more powers to control the commission.

“It is trite to say that by virtue of the extant laws of the land as well as rules and legislation governing the conduct of the governmental operations, the Attorney General of the Federation has indisputable statutory powers to regulate the operations of the commissions without recourse to any additional legislation.

Section 43 of the EFCC Act has made it abundantly clear that ‘the Attorney General of the Federation may make rules or regulations with respect to the exercise of any of the duties, functions or powers of the Commission under this Act.”

The bill states that the director-general shall be the chief executive of the EFCC and be responsible for the day-to-day administration of the commission; the execution and implementation of the policies of the commission; the organisation, control and management of the affairs of the commission.

Other responsibilities of the director-general include the implementation of the commission’s functions, the direction, supervision and control of the employees of the commission; the maintenance of transparent accounting records in accordance with applicable laws governing statutory bodies; and ensuring that the commission is guided by the laws of Nigeria and international best practices.