Senate, Efcc and the rule of law

The invitation extended to Mallam Ibrahim Lamorde the EFCC Chair by the Senate committee on ethics, privileges and public petitions and the drama that played out on the first day of the sitting of the Senate Committee on the matter, understandably have generated controversy.

The invitation followed a petition against Mallam Ibrahim Lamorde the EFCC Chairman received by Senator representing Delta North Senatorial District, alleging that the EFCC chair allegedly diverted over N1 trillion of funds recovered from officials convicted of corrupt enrichment between 2003 and 2007. The petition was submitted by Judge Uboh to Senator Peter Uwaoboshi who in turn drew the attention of the Senate President to same.

The Senate being on recess the President of the Senate reportedly directed the Senate Committee on ethics, privileges and public petitions to investigate the matter. The committee invited the EFCC chairman for questioning on the subject matter of the petition.The EFCC chair wrote the committee asking for more time to appear and furnish documents on the matter and also sent representatives to the committee emphasizing the same point. The committee reportedly went ahead requesting the petitioner to adopt his petition and make further clarifications even in the absence of the EFCC chair who had asked for a postponement of the proceedings. The representatives of the EFCC chair led by the commission’s Director of legal services, Mr. Chile Okoroma reportedly raised a point of order wondering why the committee proceeded to entertain the petitioner without the presence of the other party in line with the fair hearing principle. The objection was overruled and the EFCC representatives requested by the committee to be excused from the proceedings.

The above is a brief summary of the matter and the basis for the present intervention in this analysis.

However, before proceeding further let me disclose my interest. I admit that I am one of the private prosecutors retained by the EFCC since inception even if I am not in any way connected with the subject matter of the petition since the cases forming the subject matter of the recoveries being investigated were not cases assigned to me neither was I involved in any of the recoveries under consideration. I also admit that I have had cause to handle matters for the National Assembly in the past some of which are also pending. Nonetheless, I am making the intervention under my other platform as a public affairs commentator discussing issues of national interest as a citizen of the country.

Fundamentally, let me also admit some preliminary points. First, I agree that the EFCC being an institution created by law is certainly not above the law and therefore its activities should be open to public scrutiny particularly having been set up as an anti-graft agency to fight the economic and financial crimes and by extension corruption in Nigeria. Secondly, I also admit that the EFCC law demands that the commission sent a comprehensive annual report to the national assembly not later than 30th September every year and this being a statutory provision, it is obligatory on the EFCC to comply. Thirdly, I also admit that the EFCC chair representing the EFCC, an agency of the federal government is under the oversight responsibilities of the National Assembly including the senate. It is also not in dispute that it is not in consonance with the rule of law for proceedings to take place in the absence of any of the parties interested. These are elementary matters that do not call for any controversy.

I am however not unmindful of the fact that we are under a democracy with implications including respect for constitutionalism, rule of law, due process, transparency and accountability, zero-tolerance for corruption and respect for the rights and freedom of citizens amongst other obligations. These are elements of the democratic culture and the fundamentals of the democratic tradition. Again, on this score, there is no controversy. The other point that does not require any debate is that actors under a democracy must be prepared to be democrats. If there is no argument on this, I will then prefer to proceed on whether the actions of the senate and the EFCC in this matter conform to the rule of law and due process – since we operate a democracy founded on the rule of law.

There is no disputing the fact that the senate has oversight responsibilities on agencies of governance among its core mandate, outside law making and representation.However, the responsibility for referring petitions to oversight committees belongs to the senate as a body. The procedure stipulated in the committee webpage of the senate is unambiguous on this point. Due process in this case will require a petition to be forwarded to a senator who will in turn draw the attention of the senate as a body to same at a plenary. The senate body at a plenary will now determine the issue of referral following which the petition may then be referred to the appropriate committee for investigation by the senate at plenary. The implication of this is that the decision whether or not to investigate is that of the senate at a plenary and not one vested in the senate president as one senator who is first among equals. This fundamental rule of procedure appears to have been breached in this case since the senate been on recess could not have sat at plenary to resolve the issue of referral.

This may be a clear breach of rule of law in the handling of this particular petition. The senate may want to revisit its own rules in addressing the merits or otherwise of this petition that is of urgent national importance.

The other issue that can be raised is the effect or likely outcome of investigation by the Senate Committee on ethics in respect of the subject matter. The committee has a responsibility of considering “the subject matter of all petitions referred to it by the Senate and shall report from time to time to the senate, its opinion of the action to be taken thereon together with such other observations on petition and the signatures attached thereof, as the committee may think fit”- Segun Gbadegesin, a columnist in The Nation had argued thus “what can this committee accomplish with respect to the subject matter of a petition that alleges criminal action against the EFCC chair? It will only render an opinion on what action to take. So why didn’t Senate just refer the petition to the Police or ICPC both of which are also anti-corruption agencies with power to investigate and prosecute?”

The implication of the foregoing is that the outcome of the committee’s investigation is to make recommendations which may include requesting that persons found culpable be advised to be prosecuted. This implies that the senate must act as a body in adopting the resolutions of the committee before the referral for prosecution can be effective.

Given this scenario in the senate as a body on the same page on the procedure adopted on referral of this particular petition?

On the part of the EFCC being an anti-graft agency, accountability and transparency in the conduct of its operations is fundamental and very key if it is to be taken seriously by the populace. The EFCC has a duty under the law to account in respect of the subject matter of the petition and this it must do conscientiously by releasing detailed information to the National Assembly and Nigerian public on how funds recovered from public officials have been managed so far. I dare say that on this particular issue EFCC is on trial and the issue of motive is of no consequence as this border on transparency and accountability and for an anti-graft agency the onus is on it to raise the bar on probity.

Therefore, on the part of the EFCC, what is the state of the account? The public is waiting.

Again, on the part of the EFCC, do we have regular and comprehensive annual reportof the activities of the EFCC to the National Assembly as prescribed by law?

This is also a matter of rule of law for which the EFCC is also obliged to comply.

Finally, I am not concerned about motives and motivations for this face-off between the Senate and the EFCC. Whether the senate is acting in good faith or in bad faith is a matter of speculation and conjecture which is not the basis of criminal responsibility and therefore not the business of this analysis. But compliance with the rule of law by the senate is a responsibility because the senate itself is a creation of the rule of law.

The duty to also file returns on its activities to the National Assembly by the EFCC is also a rule of law and EFCC being a creation of the rule of law is also obliged to comply with the supremacy of the rule of law.

Finally, the answer to the present controversy between the Senate and EFCC is Rule of law! Rule of law!! Rule of law!!!