How replicating anti-graft agencies in states may affect war against corruption

How replicating anti-graft agencies in states may affect war against corruption

As one of the countries with a high corruption profile as revealed in Transparency International’s latest ranking, Nigeria needs a more robust approach to fighting the scourge, many have said.

Bearing this in mind, some analysts have called for actions to strengthen and ensure the independence of the two frontline federal anti-graft agencies — the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other related offences Commission (ICPC) – to make the fight more effective.

However, some have also suggested the decentralisation of the anti-corruption fight to the federating units of Nigeria’s federal system.

Two states have taken steps in this direction, making laws establishing agencies to fight corruption.

Kano State took the lead, with Lagos State following suit by passing the Public Complaints and Anti-Corruption Commission bill into law.

This raised the question: will decentralising the fight to the state level make the fight against corruption effective?

PREMIUM TIMES, in this analysis, examines the legal and socio-political implications of this move.

Background

The Kano State Public Complaints Commission was established in 2008 and initially saddled with the role of hearing complaints against public officers until the law was amended in 2010 to incorporate “anti-corruption” as part of its focus.

Although little has been reported about the activities of the agency since the amendment in 2010, it shot to prominence under the incumbent Governor Abdullahi Ganduje-led administration.

One prominent high-profile case the agency has handled involved the ousted Emir of Kano, Sanusi Lamido, who was accused of mismanaging N3.4 billion from the emirate’s coffers, among other allegations.

Mr Sanusi, a critic of the Ganduje-led administration, denied the allegations. But the commission, in the end, found him culpable. It first recommended the suspension of Mr Sanusi before his eventual dethronement last year. Mr Sanusi, though dethroned, was not found guilty by the court.

Lagos, on the other hand, has yet to set up any agency. It has, however, concluded the legislation process. Governor Babajide Sanwo-Olu assented to the Public Complaints and Anti-Corruption Commission Bill of 2021 in April.



Lagos State Governor, Mr. Babajide Sanwo-Olu the Lagos State Lotteries & Gaming Authority and the Public Complaints & Anti-Corruption Commission bills into Law, at the Conference Room, Lagos House, Ikeja, on Monday, April 19, 2021.

According to the governor, the agency to be established is akin to the EFCC to prosecute the misappropriation of public funds in the state.

“The chairman of the agency will be appointed by Mr Governor, subject to the ratification of the House of Assembly. If the investigation leads to a prima facie case, the offender will be prosecuted in the court,” said Mr Sanwo-Olu after signing the bill into law.

The new law also empowers the agency to take over cases relating to Lagos from the existing agency. The controversial Section 13 (3) of the law stipulates that the commission shall “take over all the investigation of all anti-corruption and financial crime cases involving the finances and assets of Lagos State Government being investigated by any other agency.”

This section has been flagged by constitutional lawyers and critics for being inconsistent with the provisions of the 1999 Constitution and the likelihood of it providing an escape route for former governors of the state under EFCC investigation.

A Senior Advocate of Nigeria, Mike Ozekhome (SAN), backs the law that stipulates that state governments can create their anti-corruption agencies but maintained that they cannot compel federal anti-graft agencies to hand over the ones they are already handling.

“They can create their own because states are entitled to fight corruption in their states as the revenue is paid to the states, the taxes and dues. States are also the ones in a position to defend their revenue not the federal government, the agency in faraway Abuja.”

Mr Ozekhome further argues that in a case where there are conflicting provisions, federal law prevails.

“But under the doctrine of covering the field which we find in section 4 of the constitution, when there is a conflict between the law passed at the federal level, like the EFCC establishment Act of 2004, and the state law; then the federal law would prevail.

“The Lagos House of Assembly is constitutionally empowered to make laws on anti-corruption matters. Specifically, Section 15 (5) of the 1999 Constitution provides that it shall be the duty of the State to abolish all corrupt practices and abuse of power,” said Festus Ogun, a lawyer and human rights activist.

Mr Ogun also cited the landmark case between the Attorney-General of Ondo State and Attorney-General of the Federation, wherein the Supreme Court made it clear that state governments, alongside the federal government, can validly legislate on anti-corruption affairs.

“However, any such law made by the House of Assembly of a State shall not be inconsistent with any law made by the National Assembly. Section 4(5) of the Constitution provides that where any law made by the House of Assembly is inconsistent with an Act of the National Assembly, the Act of the National Assembly shall prevail and the law of the state shall to the extent of its inconsistency be void.

“Therefore, the section of the Lagos State Public Complaints and Anti-Corruption Commission Law, 2021 empowering the newly established commission to exclusively ‘investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government’ is void, ultra vires and unconstitutional for being inconsistent with other anti-corruption laws made by the National Assembly,” he said.

Potential turf war?

From lawyers’ description of the legal ramifications of operations of federal and state prosecutorial bodies, there is potential for a turf battle between the anti-corruption agencies of the two tiers of government.

The existing arrangement, according to Jiti Ogunye, a lawyer, is that for a federal institution to prosecute state offences at the state high court, they need to get the permission of the attorney-general of that state to be able to forge ahead.

“This is because under the constitution, there is an arraignment process if the federal government or a federal agency wants to prosecute state offences – offences that ordinarily should be prosecuted by the attorney general of that state.

“So the argument, therefore, is, if the federal agencies charge state offences, why can’t those states create their anti-corruption agencies to prosecute state offences themselves?” he queried rhetorically.

Mr Ozekhome also shares the same view, adding that if corruption should be fought, it should be in the state where money is stolen.

“The indigenes of that state should be more involved and concerned about the monies stolen from their territory.”

In addition, someone prosecuted by the state anti-graft agencies cannot be prosecuted for the same crime by the federal agencies in future years, Mr Ozekhome explained.

“Once a state has decided to prosecute a person and has arraigned such a person for example in court, the EFCC or ICPC cannot go and arraign such a person again. You cannot prosecute a person twice for the same offence. That is the law against double jeopardy.”

Another lawyer suggests there should also be some amendments to accommodate state anti-corruption agencies across the states.

“If it has to do with money coming from the federation account, the federal government can do that. But if it has to do with smaller crimes and offences, the state government should be able to do that, after all the state government also prosecutes criminal cases investigated by the federal structure,” Liborous Oshoma added.

Interference and politicisation

The eldest son of Kano State Governor, Abdulazeez Ganduje, was recently in the news for reporting his mother and governor’s wife to the Economic and Financial Crimes Commission (EFCC).

Alleging fraud, Abdulazeez claimed to have paid his mother for the acquisition of a property on behalf of a third party only to discover that the same property had been allocated to other buyers.

Abdulazeez’s decision to approach the EFCC instead of the Kano State Public Complaints and Anti-Corruption Commission highlights a major concern of possible lack of independence of the anti-corruption crusaders.

He must have suspected, like many Nigerians, that with the huge influence his father, the governor, has on the Kano State-owned commission, the case was as good as dead if presented before the state’s agency.

The creation of anti-graft agencies by state governments can be detrimental to the cause of fighting corruption, owing to the fear of interference from other arms of government, some critics have argued.

For instance, the suspended chairman of the Kano State anti-graft agency, Muhyi Magaji, was heavily criticised for his failure to investigate the allegations of corruption against the governor, particularly the dollar bribe-taking videos exposed in October 2018.

Mr Magaji was later removed in a controversial manner after his relationship with Mr Ganduje hit the rocks.

The state House of Assembly suspended Mr Magaji over his alleged opposition to the posting of an accountant to the agency from the Office of the Accountant-General of the state.

Civil society organisations including the Human and Environmental Development Agenda, (HEDA) and the Civil Society Legislative Advocacy Centre (CISLAC) condemned the assembly’s decision, stating that it violates the law that set up the anti-corruption agency.

HEDA said the suspension of Mr Magaji reflects a conscious attempt to muzzle the commission and undermine its independence.

CISLAC’s boss, Auwal Rafsanjani, maintained that the provisions of section 6 of the Kano State Public Complaints and Anti-Corruption Commission (Amendment) Law 2010, gives only the governor the power to remove the chairman or any member of the commission while acting upon a resolution supported by the state House of Assembly on the inability to discharge effectively the functions of his office or for any other reason.

Moreover, there are also some people who share the belief that former emir Sanusi’s encounters with the anti-graft agency were a result of his criticism of Governor Ganduje.

But lawyers believe that the issue of interference and politicisation is not valid enough to discredit the creation of anti-corruption agencies in the states.

“That argument is not valid enough for a state not to have its own anti-corruption agencies. Because the federal anti-corruption agencies are also manned by politicians and they also have state officials. So currently, is the EFCC and ICPC given the free hand to investigate and prosecute?” asked Mr Ogunye.

He added, “If they are given such an avenue, if they are given the free hand to do their jobs, why does anyone think the state government would not be given the free hand to investigate and prosecute?”

Rather than stop the establishment at state levels, Mr Ogunye said there should be statutory safeguards to ensure that “there would be the security of tenure for the leadership of the agencies and make the offices so secure that they cannot be ruled by an overbearing executive.”

On his part, Mr Ozekhome said “if one should use equality as an index of judgment, the federal government even fails more than the states.”

“Are you not aware of the members of the ruling party that have been named with tonnes of petitions against them for corruption but who are never being touched by this government?”

Merit

Nevertheless, state-run agencies may be helpful because the existing federal agencies have too many cases on their plates already, Mr Ogunye explained.

“My observation is that the work is much but the labourers are few. The EFCC and ICPC are both doing their jobs quite frankly, in terms of how entrenched corrupt practices are in the country. Are their best enough to deal decisively with the anti-corruption issues in the country? I will argue that no, their best is not enough, we need indeed such bodies.”

Buttressing the lawyer’s point, the Executive Secretary of the Presidential Advisory Committee against Corruption (PACAC), Sadiq Radda, said the state-owned agencies can be advantageous if they are allowed to work as required by law.

“Sadly, when created by state governors, they may end up being unable to be independent of the governors, their governments, their families, their political associates, etc.

“Hence, having anti-corruption agencies in the states and local government areas, like electoral bodies, is fraught with danger and suspicion as the current situation in Kano State demonstrates. Though it is highly desirable, it is like a pregnant woman; we may try and see the outcome,” Mr Radda said.

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