ADE ADESOMOJU examines how the incumbent Attorney-General of the Federation and Minister of Justice, Mr Abubakar Malami (SAN), has pursued an ambitious plan to control the Economic and Financial Crimes Commission more than his predecessors
Mr Mohammed Adoke (SAN) had barely spent five months in office as the Attorney-General of the Federation and Minister of Justice, when he, on September 20, 2010, issued the Economic and Financial Crimes Commission some regulations to assert his control over the anti-corruption agency.
By their nature, economic crimes which are part of the major focus of the EFCC are mostly connected with public offices which in turn are intertwined with politics.
This explains why the commission under successive Presidents since its establishment in 2004 has been largely seen as a political attack dog of the government in power, and this has continued to fuel speculations that anti-corruption efforts of successive governments are mere political games.
Section 43 of the EFCC (Establishment) Act which stipulates that the AGF “may make rules or regulations with respect to the exercise of any of the duties, functions or powers of the commission under this Act” provides the much needed window for the AGF to keep the anti-corruption agency under his control.
Adoke, who assumed the office of the AGF on April 6, 2010, was quick to take advantage of the provision when on September 10, 2010, he issued the 10-part regulations titled, ‘Report of Results of Investigation in Certain Cases’, mandating the EFCC to report the outcome of its investigations on “serious or complex” cases to the AGF office.
The regulations listed seven criteria that qualified cases to be “serious or complex.”
The criteria captured among others, cases having a “significant international dimension”, involving money or assets worth N50m, or “likely to be of widespread public concern.”
Such cases, according to the regulations, also included those requiring “specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts, or tax regimes.”
The rest of the criteria captured cases involving “allegations of fraudulent activity against numerous victims; substantial and significant loss of funds by a ministry, department or public body; and an alleged misconduct which amounts to an act of economic sabotage.”
With these, any major corruption case being handled by the EFCC would hardly escape categorisation as a serious or complex case that must be reported to the AGF.
Although Section 6 of the regulations stated that “nothing shall be construed as preventing the commission from exercising any of its powers under section 7 of the Act (the EFCC Act)”, many believed that the regulations denied the agency power to operate freely without the AGF’s undue interference.
Contrary to the expectations that the AGF office would loosen its grip on the EFCC under the regime of the President, Major General Muhammadu Buhari (retd), Mr Abubakar Malami (SAN), who was appointed the AGF on November 11, 2015, has only tried to exert tighter hold of his office on the commission.
He, however, did not find it easy with a heady Acting Chairman of the EFCC, Mr Ibrahim Magu.
The early signs that things had quickly gone sour between Malami and Magu surfaced when in 2017 the EFCC boss resisted repeated demands by the AGF office for various anti-corruption agencies, including the commission, to submit their lists of high-profile cases.
Magu’s resistance to Malami’s alleged invasion was believed to be due to historical distrust that the EFCC had for the AGF office.
The AGF office’s determination also manifested in the areas of some major bills pushed by Malami but perceived by the EFCC as attempts to whittle down its powers or make it vulnerable to the control of the AGF office.
The EFCC under Magu opposed the bills such as the Proceed of Crime Bill; the Nigeria Financial Intelligence Centre Bill, 2015; and the Money Laundering (Prevention and Prohibition) Bill 2016, in its bid to stave off the AGF’s control.
When Nigeria was suspended by the Egmont Group of Financial Intelligence Units in 2017, Malami, through his then Special Assistant on Media and Publicity, Salihu Isah, said the development was partly caused by EFCC’s opposition to the bills.
In the statement titled, ‘EFCC ignoble role that led to Nigeria’s Egmont suspension’, the minister recalled how the EFCC, through its opposition to the NFIC Bill, frustrated his efforts to make the National Financial Intelligence Unit independent of the EFCC as required by the global financial intelligence-gathering body.
He recalled how Magu and the EFCC allegedly frustrated his attempts to make the President to re-transmit the NIFC Bill, 2015, and the Proceeds of Crime Bill earlier passed by the 7th National Assembly for fresh consideration by the then 8th National Assembly in 2017.
The minister also recalled how the EFCC “vehemently rejected the new Money Laundering (Prevention and Prohibition) Bill 2016” during the House of Representatives Committee review session on April 18, 2017.
“They have always perceived the Office of AGF as a threat instead of addressing the issues related to the best strategy to fight corruption advocated by the AGF,” the statement read in part.
However, determined to have his way, Malami last year issued a directive gazetted as Federal Republic of Nigeria Official Gazette Vl. 106, No. 163, and titled ‘Asset Tracing, Recovery and Management Regulation 2019’, directing all anti-corruption agencies to surrender their powers of assets recovery to the Federal Ministry of Justice.
The directive, which scrapped all existing assets recovery and tracing committees, also stated that all non-conviction based forfeiture must be conducted by the AGF office.
The move was largely believed to be targeted at the EFCC being the agency with the most extensive assets recovery efforts.
Malami’s new spokesman, Dr Umar Gwandu, explained that the regulations which came under public criticism “was informed by the need to regulate the procedures for the tracing, recovery, management and disposal of illegally acquired assets as required under various extant legislation.”
Gwandu’s clarifications would hardly sway the public from seeing Malami’s moves as attempts to seize the agency’s autonomy, as less than a year later, the minister authored a memo to the President accusing Magu of abuse of office and mismanagement of recovered assets.
Acting on Malami’s memo, Buhari set up the Justice Ayo Salami-led Judicial Commission of Inquiry and ordered the suspension of Magu pending when the investigation would be concluded.
With this happening some weeks earlier, observers were quick to associate Malami with a new bill that suddenly surfaced online seeking to amend the anti-graft agency’s Establishment Act in an ambitious attempt to whittle down the powers of the EFCC and subject it to total control by the AGF office.
Malami has not confirmed or denied to be behind the bill which seeks, among others, creation of the office of a director-general to head the EFCC.
The director-general, according to the proposed law, is to be appointed by the President based on the recommendation of the AGF and subject to confirmation by the Senate.
It also seeks to eliminate the office of the Secretary of the EFCC, and also proposes that the Annual Report of the EFCC is not to be submitted to the National Assembly until it has been passed through the AGF for onward transmission to National Assembly.
The most vocal critic of the bill has been a top aide of Buhari, Prof. Itse Sagay (SAN), who is the chairman of Presidential Advisory Committee Against Corruption.
In PACAC’s statement signed by Sagay, the senior advocate described the bill as an attempt to perpetrate fraud and urged all Nigerians as well as NASS to reject it.
Sagay, who pulls no punches in repeatedly criticising Malami about his handling of anti-corruption matters, said the bill would eliminate the EFCC’s “freedom and autonomy” and replace it with “an entity under the complete control of the Minister of Justice and Attorney-General.”
He said the move to have the EFCC scrapped through the controversial bill had “become more alarming” because of the “well-known proclivity of the Attorney-General for entering nolle procequi (withdrawal of criminal cases) in favour of major political and governmental figures.”
He noted that the draft bill was being sponsored by those that were “too ashamed to put their names to the draft bill being circulated.”
He added that the bill was part of “an on-going very sinister and dangerous attempt to demolish the anti-corruption infrastructure of Nigeria and return it to the situation it was during the dark days before 2015.”
Malami has denied having any special interest in controlling the EFCC but opinions remain divided over his motive.
For the Chairman of the Civil Society Network Against Corruption, Mr Lanre Suraj, Malami’s moves to tighten his grip on the EFCC “cannot be in the public interest.”
He said, “I think it has always been historical antecedent of many of the Attorneys-General to attempt to control, and where even possible, to whittle down the power of the EFCC.
“Usually, it is about control. I think it was only under Chief Kanu Agabi (SAN), as the AGF, that the EFCC can be said to have operated without political interference from the AGF.
“It was about the control of the EFCC under Michael Aondoakaa and Bello Adoke. But Malami has taken it beyond any form of decency.”
Suraj noted that Malami had exerted similar questionable control on the Code of Conduct Bureau to the extent that the agency “is technically rendered useless.”
He alleged that Malami had not only been seeking to take over the EFCC but had been frustrating the anti-corruption war.
He said, “The EFCC, being the most vibrant organisation before now, became a target of the AGF. When it is impossible to decimate the commission as they did to the SPIP led by Okoi Obono-Obla and the commission refused to compromise, they thought that the best thing was to go all out after the chairman of the EFCC over spurious allegations.”
A lawyer and activist, Inibehe Effiong, shared similar views about Malami’s alleged penchant for terminating high-profile corruption cases, a line of thought that put a question mark on the motive behind the minister’s moves perceived as attempts by him to secure absolute control of the EFCC.
Effiong said, “Given the much touted anti-corruption mantra of the Buhari regime, one would have expected that the Attorney General will be at the forefront of fighting corruption and promoting the rule of law. Regrettably, Mr Malami from all indications, is preoccupied with sabotaging the pretentious war against corruption.
“The suspicious and questionable manner in which high-profile criminal cases instituted by the EFCC have either been taken over or discontinued by the Attorney General leaves much to be desired. It paints a terrible picture.”
He noted that instead of instituting his own cases, “Malami is going after the ones filed by the EFCC.”
He added, “This is condemnable. Unfortunately, the President is not governing. Otherwise, how do you justify the continued retention of Malami?
“He should have been fired if we had a sincere President who is truly devoted to the eradication of corruption.”
Asked to respond to the various allegations levelled against the AGF by Sagay, Suraj and Effiong, Malami’s spokesperson, Gwandu, said, “These issues have been over -flogged, time and time over again; I have no further reaction to make over the issues.”
But he also shared his previous statement in which he stated that the AGF “does not need the tinkering of the current Economic and Financial Crime (Establishment) Act 2004” for him to regulate the agency “and could therefore not, in any way, seek to sponsor any bill for more powers to control the commission.”
But a lawyer, Mr Abubakar Sani, argued that Malami could not be blamed for his alleged moves to control the EFCC.
He said, “It is understandable. It all depends on the body language of the President who appointed the AGF. If you remember, when somebody like Farida Waziri was not in the good book of the President, she had to go.
“Don’t forget that it was during the era of Aondoakaa that she was appointed, under the President Yar’adua administration.
“When President Jonathan succeeded Yar’adua, the body language changed and it was difficult for her to continue with the new AGF who was then Adoke.
“You should understand that these are human beings like you and me. As they say, whoever pays the piper calls the tune. It is very hard for the head of the EFCC to be independent, unless the President allows him.”
A Senior Advocate of Nigeria, Chief Ifedayo Adedipe, threw his weight totally behind Malami, saying the EFCC could not be allowed to operate as a loose cannon.
He stated, “I think those opposing the Honourable Attorney-General’s position are mistaken.
“The EFCC was established by an Act of the National Assembly. It is a statutory body, and beginning with the appointment of its executive chairman down the line, you cannot allow such a body, and the law does not allow such a body, to be a loose cannon without control. And that is what it (EFCC) has been in the last couple of years.”
He noted that the AGF was created by the Constitution and conferred the holder of the office with the power “to decide in the public interest, which matter to take to court and which has to be discontinued.”
“If we do not have that, what we will have is a situation in which some cases may even end up embarrassing the government,” Adedipe said.