Controversy: Lawyers at each others’ throat over EFCC’s duties

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By Abdulwahab Abdulah, Bartholomew Madukwe & Onozure Dania
SOME prominent lawyers were, yesterday, divided over the call by the President of the Nigerian Bar Association, NBA, Mr. Abubakar Mahmoud for the curtailing of the prosecutorial powers of the Economic and Financial Crimes Commission, EFCC.

Mahmoud and MaguMahmoud and Magu
Mahmoud and Magu

Mahmoud had while being sworn-in at the just concluded annual general conference of the NBA, in Port Harcourt, called for the review of the powers of EFCC.

Irked by the development, the EFCC accused him of frustrating the prosecution of some high-profile cases.

Those, who spoke to Vanguard include Mr.Yusuf Ali, SAN; Chief Mike Ozekhome SAN; Prof Tahir Mamman, SAN; Mr. Tani Molajo, SAN; Mr. Emeka Etiaba, SAN; Chief Morah Ekwunoh, Mr. Akin George, Mr. Jide Okafor, Mr. Ahmed Adetola-Kazeem, Mr. Richard Nwankwo and Mr. Yemi Omodele.

EFCC role must be reviewed–Yusuf Ali, SAN

Ali said: “I listened to the presentation of the NBA President and I have read the reaction of the EFCC. What I deduced from the two is that the EFCC left the substance of the suggestions to embark on personal abuse. They resorted to blackmail and name calling which is unbecoming of a public institution. ‘’Unfortunately, as they tried to blackmail the NBA president, they didn’t get their facts right. They accused him of acting for former governor James Ibori, and the man has come out to say he never acted for Ibori. For an investigative body like EFCC not to do proper investigation before coming to the public is very unfortunate and EFCC wants to combine every function under the sky.

“Is it not the position of the NBA president that they should focus on investigation alone? In any event, it is not a new thing under our laws for a body like that and the police to do their investigations and pass it to the appropriate bodies (Directorate of Public Prosecution, DPP) to prosecute.

“We want to know the interest of the EFCC in prosecution. Nigerians should ask what is the need for them to prosecute? The NBA president just made a general statement asking for the review of the operations of the organ of government.

“They didn’t stop at that, they even blackmailed lawyers, forgetting that they are being represented by senior lawyers in courts. Are they trying to tell us that those representing them are the only good Nigerian lawyers? When you prosecute, there are others to defend. For me, it raises so many questions. What is the particular interest of EFCC in prosecution that if they didn’t carry that out the world will end?

“Look at the FBI, they didn’t prosecute but investigate all shades of crimes. But they have cutting edges in investigations and that is why they are ahead of all investigative bodies in the world. They concentrate on one mandate. To me, the suggestion of the NBA president is right and valid.

“If you look at it, most of the things that EFCC dabbles into are under the mandate of the ICPC. It is the ICPC that is the anti-corruption body established by the law, but they are rendered voiceless. When you take up so many responsibilities, you will not be able to perform well.”

Clipping the wingsof anti-corruption agencies is wrong– Mamman, SAN

On his part, Tahir Mamman said: “Every Nigerian, except the beneficiaries of the mindless heist, knows that much of the tragedy that has befallen the country is attributable to the looting and corruption, which the last 20 years had been its peak period. In sane societies, due to its perverse and pervasive effects, the death penalty is inflicted on perpetrators of corruption and their accomplices.

‘’In our country, lawyers are more concerned about niceties and individual rights of the culprits against the rights of over 170 million, people who have been robbed blind with great impunity, who because of the theft live a life of drudgery, have poor education systems, killer hospitals and no electricity among others. Yet some lawyers are concerned with the rights of these rogues.

‘’Patriots should be concerned about strengthening all the anti-corruption agencies, finding a way to push the judiciary to procure speedy justice such that at most within one year of arraignment, a corruption case must be concluded. The part of the law on presumption of innocence should be revisited so that an unexplained wealth should result in shifting of burden onto the accused to justify such wealth.

‘’For us as a country, this isn’t the time to invoke procedures of countries that do not harbour any iota of respect for those who break the law, countries that protect public treasures with total unwavering commitment, countries where the justice system doesn’t blink before any person, however, powerful or connected, countries where both members of the Bar and Bench are accountable for their actions as officials and private practitioners alike.

‘’Nigerian lawyers need to know that their perception before the public has sunk. Like it or not, we are seen to be the handmaiden of corruption being perpetrated by people in the public and private sector.

‘’Our concern, therefore, must be on how to redeem this image and be the gentlemen that we claim to be. Seeking to clip the wings of anti-corruption agencies is a fundamental misdirection. At the least, the bar should be offering pro bono services to all anti-corruption agencies. Lawyers shouldn’t be beneficiaries of wanton theft of public treasury.’’

It’s time to clip EFCC’ wings – Ozekhome, SAN

To Ozekhome: ‘’From the way the EFCC has abused its combined enormous investigative and prosecutorial powers, particularly under the Obasanjo and Buhari governments, the time has come to call for the abrogation of these monstrous powers because truly, power corrupts and absolute power corrupts absolutely.

‘’The Attorney-General of the Federation has the constitutional power under section 174 of the 1999 Constitution to initiate, continue or discontinue prosecution in criminal matters. International best practices across the world are that the same body does not investigate and prosecute simultaneously. That makes the EFCC both the investigator, accuser and prosecutor.

‘This is clearly against one of the cardinal principles of the doctrine of fair hearing, namely that no one should be a judge in his own case. By also harassing, intimidating, abusing, browbeating and allegedly surreptitiously and clandestinely investigating judges, the Commission intends to also take over the functions of the judge and jury.

‘’That is a total regression into a dictatorship, absolutism, tyranny and near fascism. It must never be allowed in Nigeria. It is time to clip the dictatorial wings of the EFCC that makes it violate its own cardinal cliche of “no one is above the law. It has so far lived above the law.’’

NBA leadership should furnish reasons for its position –Molajo, SAN

Also speaking Molajo, said: ‘’The current position of the NBA as recently articulated by its president is that the mandate of EFCC ought to be defined more narrowly so as to limit the function of that agency to investigation and to transfer its prosecutorial powers to a new body. I think that the approach which would be more useful to the EFCC itself and to the progress of our country would be to require the leadership of the Bar to furnish reasons for its position. In that event, the EFCC would be in an informed position to express a more reasonable response. Unavoidably, prosecutions of all persons who are indicted by the EFCC will be undertaken by members of the Bar.’’

Call should be extended to other bodies – Etiaba, SAN

Similarly, Etiaba said: ‘’My take is that the NBA’s call should go beyond EFCC and be extended to other bodies saddled with investigations like ICPC, police, NAFDAC and the rest. Beyond that all issues raised by NBA are correct.

“What the Bar said is that the EFCC has done well and needed to create rooms for better performance. Our president, therefore, requested that the body restricts itself to investigating crimes, while other bodies will be saddled with the responsibility of prosecuting. The advantage is that the person who will prosecute will have the second chance to appraise the investigations and the work done. Such appraisal will reveal that there is enough information to convict the person being investigated or that there is inadequate information and the prosecuting agency officials will now direct the EFCC to do more work by probing further along some lines .

“The result could be that there may be no case at all and if there is no case, there is no need to put a Nigerian through the rigour of trial. What we don’t realise is that criminal trials come with indictments and loss of freedom. What the President is saying is that if we are having a different body investigating and other prosecuting, there will be checks and balances

I support call for creation of prosecutorial agency – Ekwunoh

Ekwunoh said: ‘’l agree that the EFCC should undergo serious reformative surgery as to create and bring into being, a separate and distinct organ or agency of government saddled with only prosecutorial powers and responsibilities as opposed to the present hybrid situation of the same agency serving both investigative and prosecutorial purposes.

Superstructure of this view is built on the foundation of four variables, which include, but are not limited to:

(a) Achievement of much needed reduction in and lightening of heavy concentration of absolute powers on EFCC, which tends to absolutely corrupt and derail it, as exemplified by its recent arrest of a blogger, Mr Abubakar Sidiki, for views expressed on social media and not for financial crimes, as envisaged by the founding fathers of EFCC.

(b) Its service as a precursor to the much-needed insulation of the agency from the apron strings, directly or remotely, of the Presidency or the Attorney -General of the Federation, which presently appear, jointly or severally, to be employing and deploying same as a willing tool to witch-hunt and hound perceived political enemies.

EFCC’s investigation and prosecutorial powers are necessary – Akin George

To Mr Akin George, ‘’expediency and realities of the time behoves of the government of the day to fashion out an agency that can nip in the bud serious economic and financial crimes that bedeviled our polity. It is not a novel idea per se, UK and other advance countries have such agencies in place to deal with peculiar issues like this.

‘’If you consider the need for speed in prosecuting cases as opposed to the usual delay associated with litigations generally in this country, you will appreciate the beauty in merging investigation and prosecution in EFCC.

Don’t forget that EFCC reports to the office of the Attorney General. The office of the AG has several departments including and especially the office of the DPP. The DPP issues legal advice and subsequently prosecutes cases. It has been advocated, times without number, that lawyers in the office of the DPP be deployed to Police formations to assist during investigations and this you actually find in some police formations now, for example, the SFU.’’

EFCC should investigate and prosecute – Adetola-Kazeem

Mr Ahmed Adetola-Kazeem disagreed with Mr Okafor, arguing that ‘’the EFCC should still investigate and prosecute to ensure efficiency in the prosecution of fraud and corruption cases.’’

He continued: ‘’I am yet to understand the argument of those clamouring that EFCC’s powers be restricted, particularly considering the lack of synergy that has been witnessed when the Police investigate and the Attorney-General prosecute. Investigating Police Officers (IPOs) are transferred at will by the Nigerian Police Force and getting them to appear for trials become a herculean task, stall ing the trial in most cases. These have led to calls in the past that the AG’s office should oversee investigation.

‘’The EFCC has different departments which includes the investigation and prosecution department. The investigation department is manned by trained investigators while the the prosecution department is manned by lawyers who have specialized skills in prosecuting fraud cases. What needs to be done is to further build the capacity of these departments to ensure effectiveness.

‘’There should also be check and balances to ensure officials of EFCC do not abuse their powers. Stripping the EFCC of its power will also mean stripping all other agencies of their powers which will mean that the Attorney-General will be overburdened.’’

You can’t sit in judgement over your case – Nwankwo

Mr Richard Nwankwo, who is president/founder, Crusade for justice, said: ‘’ It is in tandem with the principle of justice all over the world that you cannot be sitting on your own case. I think what the EFCC has succeeded in doing is to undermine the programme, the efficacy and the effectiveness of the office of the Attorney General AG in terms of prosecution of cases and of course, you know that the office of the AG exist in all the states of the Federation. I believe that there’s absolutely no reason for EFCC to be involved in the prosecution of cases. EFCC is an extension of the Nigerian Police and what they are doing within the confines of EFCC is not different from what is going on within the police as an organization. I think the EFCC as a specialized investigative agency should be fortified in line with the opinion expressed by the new NBA President, A. B. Mahmoud.

‘’The operation of the EFCC must be streamlined to be in sync with what is obtainable in other jurisdictions. It must be done in such a way that it will promote the rule of law. It should be redesigned and restructured to enhance criminal investigation and not dabbling into prosecution of cases. And all the cases the agency has been handling how many has it successfully concluded? Many a time they resort to lawyers in prosecution of cases.

Why do you have to set up an agency that would rely heavily on private practitioners for the prosecution of cases? The office of the Attorney General of the Federation AGF is equipped and what I expect this government to do is to consider the capacity enhancement of the office of the AG and that of the state so as to have some measures of synergy between the two organizations. The EFCC should concentrate on its professional area which is criminal investigation.’’

Leave EFCC as it is— Orisalade

Mr Tunji Orisalade said: “I am of the view that since EFCC is a body set up by law, no other body or group, even the NBA has a right to interfere with its exercise of the powers bestowed upon it. Save where, there is a misuse of that power or the assumption of power not cover under the said law. With particular reference to the NBA, my expectations are its admonitions to members to live above board in order to avoid stains on the long-end and long-preserved reputations of the body.

No need to change status quo —Omodele

The Economic and Financial Crimes Commission EFCC as an anti-corruption agency is a creation of status saddled with the responsibility to investigate and prosecute corruption related cases. Nigerian Bar Association NBA as a body of lawyers in Nigeria and comprises of lawyers who know and understand what EFCC does can easily point out flaws of the body.

The issue that EFCC cannot investigate and at the same time prosecute is rather on the one hand duplication of effort while on the other hand will bring about sanity and fair play.

EFCC investigate and prosecute, it will give the body easy access to their witnesses but to only investigate and another body prosecuting may lead to frustration of witnesses and cases.

The Attorney General AG of the Federation has power to take over prosecution and discontinue any ongoing criminal cases in the country. The AG is the chief law officer of the country.

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