Sunday, June 22, 2008
EFCC AND NATIONAL DEVELOPMENT
Tuesday, April 29, 2008
Economic and Financial Crimes Commission and national development By Babatunde Ogala
BLACK'S Law Dictionary, 6th Edition, defines corruption as: "An act done with an intent to give some advantage inconsistent with official duty and the rights of others, the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefits for himself or for another person, contrary to duty and the rights of others".
The Oxford Advanced Learner's Dictionary 6th Edition, also defines to be corrupt as: "The use of power to do dishonest or illegal things in return for money or to get an advantage; or the use of illegal or unfair methods, especially bribery, to gain advantage in business, politics, among others".
Corruption could, therefore, mean dishonest or illegal behaviour, especially of people in authority.
In Nigeria of today, corruption has become a behemoth and monster. There is large-scale corruption in the polity, which unfortunately, is perceived as a normal way of life. Corrupt practices are defended with self-seeking arguments, even by the well-informed including teachers, lawyers, politicians and youths. Corruption has reached an epidemic stage in both our public and private lives.
The incursion of the military into our politics took corruption to almost the state of an art and an acceptable way of life. Civil servants and leaders looted the public treasury impudently. Politicians, bankers, teachers, civil servants and other public office holders at various tiers of government made a serious business of treasury looting. Even student unionists joined in looting their union's funds.
The erstwhile President Olusegun Obasanjo in his inaugural speech of May 29, 1999, laid so much emphasis on the issue 'corruption as the greatest single bane of our society' and promised to tackle same with gusto.
The Economic and Financial Crimes Commission (EFCC) Act was subsequently enacted as a law of the country along with such anti-corruption legislation as the Independent Corrupt Practices and other Related Offences Commission (ICPC) Act. Before then, there have been several legislations on corrupt practices in our statute books.
Advance-Fee-Fraud and other Fraud Related Offences Act 1995, the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as well as the Banks and Other Financial Institutions Act 1991 and Miscellaneous Offences Act are some previous legislation along with the Criminal and Penal Codes and several others embedded in various statutes.
The functions and powers of the EFCC are clearly spelt out in Part II of the Enabling Law; the Economic and Financial Crimes Commission (Establishment) Act (as amended). The powers and functions are defined in Sections 6 and 7 of the law.
The commission is, however, given very wide powers of investigation and prosecution of economic crimes in Nigeria, albeit subject to regulations and rules made for it by the Attorney-General of the Federation, further to Section 43 of the Act.
The major functions further to Part II in the enabling Act includes; but not limited to:
Enforcement and due administration of the provision of its enabling Act;
Power to investigate all financial crimes including advance-fee-fraud, money laundering, credit card fraud, contract scams, among others;
Adopting measures to identify, trace, freeze, confiscate, or seize proceeds derived from terrorist activities, economic and financial crimes related offences, or the property, the value of which correspond to such proceeds;
To facilitate rapid exchange of and technical information, as well as joint operations geared towards economic and financial crimes eradication;
Collaborating with other agencies both within and outside Nigeria in carrying out its functions;
Adopting measures to eradicate and prevent the commission of economic and financial crimes, including coordinated preventive techniques on the prevention of economic and financial crimes;
Determination of the extent of financial loss and such other losses by government, private individuals or organisations;
Dealing with matters connected with extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes;
Collection of all reports relating to suspicious financial transactions, analysing and disseminating same to all relevant governments' agencies;
Maintaining liaison with the Office of the Attorney General of the Federation, Nigeria Customs Service, Immigration and Prison Service Boards, Central Bank of Nigeria, Nigerian Deposit Insurance Corporation, National Drug Law Enforcement Agency and such other financial supervisory institutions in the eradication of economic and financial crimes;
Carrying out and sustaining rigorous public enlightenment campaigns against financial crimes within and outside Nigeria;
Any other such activities as are necessary to give effect to the functions conferred on the commission under the Act.
The commission is also empowered further to Section 6 (j) (i) - (o) (vi) and (k) - (l) to do the following:
(j) collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the commission concerning -
The identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes;
The movement of proceeds or property derived from the commission of economic and financial and other related crimes;
The exchange of personnel or other experts;
The establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;
Maintaining data, statistics, records and reports on persons, organisations, proceeds, property, documents or other items or assets involved in economic and financial crimes;
Undertaking research and similar works with a view to determining the manifestation, extent, magnitude and effects of economic and financial crimes and advising government on appropriate intervention measures for combating same;
Taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes, in consultation with the Attorney-General of the Federation;
The co-ordination of all existing economic and financial crimes investigating units in Nigeria;
Maintaining a liaison with Office of the Attorney-General of the Federation, the Nigerian Customs Service, the Immigration and Prison Service Board, the Central Bank of Nigeria, the Nigerian Deposit Insurance Corporation, the National Drug Law Enforcement Agency, all government security and law enforcement agencies and such other financial supervisory institutions in the eradication of economic and financial crimes;
Carrying out and sustaining rigorous public and enlightenment campaign
against economic and financial crimes within and outside Nigeria; and
Carrying out such other activities are necessary or expedient for the full, discharge of all or any of the functions conferred on it under this Act.
Of special interest is section 6(i) (k) which states:"Taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes
in consultation with the Attorney-General of the Federation" (emphasis mine).
I have laid emphasis on this provision because of the recent emotional outburst that greeted the attempt by the Attorney General of the Federation to exercise this power that is conferred on him, both by the EFCC Act and the constitution.
The Attorney General of the Federation received all manner of verbal and written assaults for asking rightful questions on the activities of the commission further to the above quoted section.
It is my humble view that the makers of the law took due cognisance of the fact that the Attorney General of the Federation being the Chief Law Officer of the country ought to know and give legal advice and direction to the commission in the discharge of its functions, hence the provision of the clause.
If the commission was meant to be totally independent of the Office of the Attorney-General, I am convinced that the draftsmen would not have included this clause, as well as the Section 43 that empowers the Attorney-General to make regulations for the commission in the statute.
The Attorney General was clearly misunderstood and unfairly treated by a section of the press, of the public and some of my colleagues in the exercise of his statutory conferred relationship with the commission.
Suffice it to say that Section 174(i) of the Constitution also gives the AGF absolute powers over public prosecution including the power to discontinue any criminal proceedings in respect of an offence created by or under any Act of the National Assembly at any stage of the proceedings, but before judgment - Section 174(i)(i) of the Constitution.
Though by Section 174(3), the AGF is expected to be circumspect in exercising this power, taking cognisance of public interest, the interest of justice and prevention of abuse of process.
To my knowledge, the Attorney General of the Federation did not exercise this power at any stage before the umbrage.
In its short period of existence, the commission has, without any iota of doubt, done well in certain areas that might and should be commended including but not limited to the foregoing.
The commission, through its activities helped in recovering looted funds from the public treasury stashed away in foreign banks. Example is the recovery and repatriation of 24 million dollars and 50 million dollars of the Abacha loot through the help of Swiss authorities and banks.
The course of writing this paper, I read where the Chief of Staff of the Commission, Mr. Dapo Olorunyomi, was reported in the ThisDay and Punch Newspapers of March 11, 2008, to have said that the commission has recovered more than five billion dollars of stolen funds.
He was also reported to have said that the commission has obtained 213 convictions and currently prosecuting over 100 cases of corruption and money-laundering in various courts nationwide.
Mr. Dapo Olorunyomi is further reported to have lamented that the rate of only 213 conviction is pathetic taking into consideration the high level of corruption in the country.
The restoration of credibility to the Legislature through the on-going prosecution of a past Senate President, as well as the prosecution and conviction of a former Inspector General of Police, are well commendable.
The successful prosecution and conviction of a former state governor and the recovery of stolen funds and property from him is laudable.
Nigeria and Nigerians are now being acknowledged internationally as a country that is moving up on the corruption index.
Prior to the coming of the commission, foreigners had been swindled to the tune of N200 billion by Nigerian fraudsters, according to Tony Ede, Corporate Affairs Manager of Central Bank, as he then was. The result of which was lack of
confidence in the Nigerian economy. Investors were reluctant to do business while Nigeria and Nigerians were scorned by other foreign nationals.
The commission has helped in sanitising the tax agencies, petroleum companies, federal, state and local government administration, as well as corporate organizations.
The commission has also successfully prosecuted several cases of advance-fee-fraud, including the cases involving the Brazilian Bank, the Egyptian General, the German widow which involved such people as a major shareholder in one of the big banks, a notorious lawyer and a flamboyant socialite, as well as a member of the National Assembly, but who died in the course of his trial.
The activities of the commission have also helped in reducing drastically the infamous practice of electronic advance-fee-fraud through the use of the internet by those commonly referred to as the Yahoo boys and girls. Many of them, mostly youths, have been successfully prosecuted while others have taken flight or engaged in meaningful employment.
As I speak to you, we all must also acknowledge that the commission is currently prosecuting six past state governors, two of whom are also serving senators for sundry offences under its enabling Act which they purportedly perpetrated while at the helm of affairs in their various states.
It should be commended for so doing. This will also act as a check on others still in office.
The commission has through its activities, seminars, workshops, collaboration, as well as its enlightenment campaigns and website brought the ills and evil of corruption to the front burner in our national discourse and through that created a lot of awareness and education on the issue of corruption in our body polity.
It is not uncommon to hear people say to another "I will take you to EFCC" and that of course, instills the fear of the law on corruption in the people.
The mere mention of the commission acts as deterrent to people who want to engage in corrupt practices. This is a plus for the commission.
Today, to the credit of the commission, Nigeria has a better credit rating than it hitherto had prior to its coming. Foreign businesses and business people are more willing to do business with and in Nigeria with Nigerians with the assurance of dealing honestly. Examples abound of direct foreign investors, suppliers and even companies and institutions now offering credit facilities to Nigerians including banks, suppliers of raw materials and finished products and even credit card companies as: MasterCard and Visa.
In all of these laudable achievements of the commission, one cannot but comment on areas in which it has fallen short of expectations.
The major militating and debilitating factor that has affected the commission and has drawn scorn to it, especially in the past couple of years, has been its incursion into partisan politics.
In the build-up to the last general elections, the commission and its then chairman made itself available as a willing tool in the hands of politicians to settle personal and partisan political scores.
The commission played very despicable roles in the impeachment exercise of the then governors of Plateau, Bayelsa and Ekiti states.
The style of the EFCC then was to arrest lawmakers in the various Houses of Assembly, put them in detention on sundry charges, force them to sign impeachment notices and thereafter transport them from its custody to their various states from custody to effect the impeachment of the governors in return for freedom and exclusion from prosecution.
We can also not but mention its rather shameless role in the purported indictment of perceived political opponents of the then President and subsequent attempts to exclude them from participating in the last elections. Examples abound. But of particular interest is the case of then Vice President, Alhaji Atiku Abubakar, whose purported indictment was based on a report on the Petroleum Trust Development Fund (PTDF) submitted to the former President by the commission, albeit against the dictates of the statute setting it up.
There is also the case of former Kogi State governor, Alhaji Abubakar Audu, AC Candidate for governorship in Adamawa State, Ibrahim Bapetel, among others. The current governor of Rivers State was also purportedly indicted by EFCC, but for his tenacity and the courts, his nomination that purportedly had K-leg would not have been restored.
But for the Judiciary, which has since overruled and set aside the purported indictments, albeit at great cost of tax-payers' money, man hours and colossal damage to our national psyche, the commission would have been successfully used to deprive them of their rights to contest elections.
Most ridiculous was the purported indictment of ANPP Senatorial candidate in Ogun Central, Lanre Tejuosho, whose opponent was the then president's daughter, allegedly based on the commission's report even when he was never questioned by the commission.
Further to the foregoing, the commission has also been variously accused and perhaps rightly too of selective and partial justice and investigations.
It has to date refused or failed to apply the same zeal, enthusiasm and vigour with which it investigated and publicised the PTDF to the allegations of monumental corruption in the Nigerian Ports Authority, which was headed by a top chieftain of the ruling party and a close confidant of the then President.
Rather, its then chairman turned himself to the defence counsel of the party chief by telling the public that the man as chairman was not the chief executive of the authority.
Its delayed investigations into the allegations of impersonation and corruption against a senator with filial affiliation to the immediate past President by a Swedish company, also leaves a sour taste.
The commission, I must say also left a lot to be desired in its manner of over-publicising its investigations even before it commences such. It was the practice to go to press and gleefully announce to the world its impending investigation of certain public officers and infractors, thereby leaving room for the infractors to cover up their tracks before the arrival of its operatives.
I am of the view that the commission could be more circumspect and discreet in its operations like its counterparts in other climes like the Scotland Yard in England and FBI in the USA, amongst others.
The comments of its then chairman on, a then deputy governor, now governor of a state in the South West, as well as an acclaimed strongman of the state politics at a lecture at the University of Ibadan, is rather fresh. The commission, after the widely published comments of its chairman, is yet to do anything to investigate or prosecute either of them.
The chairman had declared both corrupt and unfit to hold office, but thereafter did nothing to put them to book - for obvious reasons.
You will recall that the strongman even admitted on National Television that he was entitled to a 25 per cent share of the state's monthly security vote.
I will refrain from discussing its role in the politically motivated freezing of Lagos State government's bank accounts on the eve of the last elections.
Human rights and rule of law are very fundamental rights enshrined in our constitution and indeed universally accepted as cardinal to democratic process and our lives.
But with the commission, people's rights were freely abused by its habit of keeping people for indefinite periods in its detention facilities even when courts of the land have ordered otherwise.
This was a prevalent practice, while the commission in its reaction continuously displayed its scant regards for the orders of court by its reactions to such orders, as well as its continuous and never ending castigation and show of disrespect for the courts of the land.
This is not to mention the cases of persons who were held by the commission for sundry offences outside its competence to handle by the provisions of its enabling statutes.
The commission became so paranoid of the courts that it recklessly branded the courts corrupt, when its bidding were not done by the courts.
The immediate past chairman of the commission in his crusade, made the commission look like a personal fiefdom and built a personality cult around himself.
Whilst not taking away or deriding his modest accomplishment as the head of the commission, he created a personality cult around himself and made it look like the commission could not operate without his person.
This was largely responsible for the avoidable, and in my view, unnecessary controversies and misrepresentations that greeted his nomination for a career enhancing and most sought after capacity building training at the National Institute for Policy and Strategic Studies.
Lest, I be accused of being uncharitable, I will refrain from discussing the manner of appointment and rapid promotions of its erstwhile chairman by the former President.
In the few years of its operations, the commission may have done its bit creditably well in fighting corruption and repositioning the country, but I think it also has to embark on a house cleaning exercise.
It is not enough to re-deploy its officials who engage in bribe taking and other corrupt practices back to the Police, from where they were seconded to the commission. It ought to have shown example by prosecuting those of its officials and operatives who are found to be corrupt. It never did.
In concluding this piece, I wish to submit that the Economic and Financial Crimes Commission has done creditably well in restoring our pride as a nation and imbued fiscal discipline in our body polity.
It can do better if it takes criticisms in good faith and desists from engaging in politics.
It will also do well in the light of current revelations to immediately commence a holistic investigation of the immediate past administration of Gen. Olusegun Obasanjo and possibly those before him and Gen. Sani Abacha. Such exercise would help unburden it of the luggage of being labeled a hunting dog of the immediate past administration and its attendant negativism.
The Economic and Financial Crimes Commission will also be doing its image and public rating a great service by respecting the orders of courts, the rule of law and the rights of people it investigates.
Circumspection is recommended as a virtue that the commission must espouse in its activities, while also being covert rather than overt in its investigation until it gets results.
The commission must submit itself to scrutiny by constituted authority and the general public by publishing its annual reports, which should include its audited account as a show of transparency.
There are certainly officials of the commission who engage in untoward activities and corrupt practices. Rather than re-deploy or simply lay off such officials, it must put them through the process of investigations and prosecution to convince the public that it is not just grandstanding whilst shielding its own.
The much discussed and alleged corruption infested Nigerian Ports Authority must be revisited and convincingly scrutinised with prosecution of persons found wanting.
The commission must be less combative of its critics, but should rather sieve through and take out for its use, the fine points of the criticisms.
The leadership of the commission and its officials should be more concerned with building an enduring institution that would be a pride of the nation and be globally accepted and respected.
More focus should be on the activities of the commission and not a personality cult being built around its leadership. Though I acknowledge that they may be inseparable, efforts must be made to gain public confidence in all officials of the commission and not in a few individual(s).
The commission should embark on more public enlightenment exercise and education of the public on the ills of corruption.
I will advise the commission to submit itself to constituted authority, co-operate with other governmental agencies, while resisting interference in its activities as enshrined in its enabling law.
It must ensure due process in the appointment of its leadership. Its leadership must possess the required qualification for the positions and be appointed in accordance with the dictates of the law.
The foregoing are my thoughts on the Economic and Financial Crimes Commission and its role in nation-building.
Babatunde Ogala, is the chairman, Committee on Judiciary, Lagos State House of Assembly.
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