The former President of the Nigerian Bar Association (SAN), Olisa Agbakoba (SAN), has said the National Assembly needs to address the issue of the unconstitutionality of the Economic and Financial Crimes Commission (EFCC) and to review whether the institution that it created is valid.
Agbakoba said this in an interview with ARISE NEWS on Friday, where he also said that he believes that the National Assembly, in passing the EFCC Act in a record time of two days, made a lot of mistakes, part of which included the National Assembly exceeding its legislative authorities as given by the constitution.
Agbakoba had earlier written to the National Assembly that the EFCC was an unlawful organisation that he believed was established unconstitutionally.
“The reason I went to the National Assembly is to say to them—you created this institution, so maybe it’s time you reviewed whether what you created is valid,” he said during the interview.
He emphasized that while corruption is a pressing issue, the EFCC’s role and its legal standing need closer scrutiny, saying, “If corruption is a big issue, it’s something we must put on the front burner, so I’m very surprised for instance, that corruption appears in section 15 of the constitution under chapter 2, which is non-justiciable. So, you can see the paradox: if corruption is to be an important issue, why is it non-justiciable.
“But through mechanisms of interpretation, the Supreme Court has held that the EFCC, in the particular cases filed, could do what they did. But as time went on, and in particular the case you referred to…
“The Supreme Court castigated the EFCC for being a totally irresponsible organization going far outside the scope of its authority—becoming the police, becoming the SFU, becoming the MFU, becoming everything. So, that’s what they cannot do.
“The other fallacy that I think needs to be debunked is that the National Assembly can exercise power to do anything it likes. No, it can’t. The National Assembly’s power is constrained by the exclusive list and the concurrent list.
“So, the big question here is whether the National Assembly can, mainly because it’s the National Assembly, create any monster. It can’t. It’s limited to the powers bestowed on it by the constitution,” he said.
Agbakoba then argued that the National Assembly overreached its legislative powers under Section 4 of the constitution in creating the EFCC, as he stated, “The EFCC Act is the fastest legislation ever passed in Nigeria, in two days. I suspect very strongly that in the course of passing this legislation so fast, a lot of mistakes were made, and one of the mistakes is that the National Assembly exceeded its authority under Section 4 of the Constitution, which imbues it with legislative powers.
“It exceeded its authorities in several ways. Anyone who reads the Act will actually think that the EFCC is the Nigerian Police Force, because that’s what it does. So, the one point that could be made is: could we have two police forces when the EFCC describes itself in the Act as a police force? But we know that there’s only one police force in Nigeria, and that is the Nigerian Police Force.”
Agbakoba also expressed concerns about the EFCC’s effectiveness in tackling corruption, saying, “The time has come to deal with this issue squarely. We can’t have corruption at the level we have it. And by the way, let me be very clear: I have absolutely nothing against some of the very fine gentlemen who have worked in the EFCC for a very long time.”
“The EFCC, to my mind, if you take the huge amount of fraud in the country and the huge amount of corruption in the country, unfortunately, the EFCC has not been effective,” he added.
“If we say put aside the constitution and look at what the EFCC has done and say, well, maybe we can give them a pass mark. I’m not going to give them any damn pass marks. These guys are terrorists. In my view, they terrorize us. They use their might in that red coat to terrorise us. Once you say EFCC, you’re scared; that is not what a law enforcement agency should be; they ought to be better.”
“At the end of the day, we need to test institutions; we need to test the validity of the actions of anyone who exercises either legislative or executive authority,” he added.
