By Imran Ridwan, Esq.
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Introduction
The recent arraignment of Maryam Isah Shehu and Abubakar Shuraim Abdulhamad before the Federal High Court, Abuja, at the instance of the Economic and Financial Crimes Commission (“EFCC”), on charges brought under section 24(2)(c) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015 (as amended in 2024), raises a question of considerable constitutional and administrative importance:
Does the Economic and Financial Crimes Commission, established principally to combat economic and financial crimes, possess the statutory authority to investigate and prosecute a cybercrime which, on the face of the charge, has no apparent economic or financial component?
The question becomes particularly significant where the alleged cybercrime consists essentially of an online publication said to have injured or threatened the reputation of the Commission.
The answer, with respect, is not to be found merely in the description of the EFCC as a “law-enforcement agency”. Nor can it be answered by the proposition that the Federal High Court has jurisdiction over cybercrime offences. Jurisdiction of the Court and competence of the prosecuting agency are distinct legal questions.
The starting point must therefore be the enabling statute of the EFCC, followed by the relevant provisions of the Cybercrimes Act and the authorities of the appellate courts concerning the limits of the EFCC’s prosecutorial mandate.
My considered view is that the EFCC Establishment Act, 2004, standing alone, does not confer upon the Commission a general power to prosecute every offence known to Nigerian law. Its mandate is statutorily tied to economic and financial crimes and offences connected with or relating thereto.
However, that conclusion does not necessarily dispose of the present controversy. The Cybercrimes Act contains an independent prosecutorial provision section 47 which empowers “relevant law enforcement agencies” to prosecute offences under that Act. The critical question therefore becomes whether, and on what legal basis, the EFCC qualifies as such an agency for purposes of the particular prosecution.
The Statutory Mandate of the EFCC
The EFCC was established by the Economic and Financial Crimes Commission (Establishment) Act, 2004.
Its statutory functions are principally directed at the investigation, prevention, enforcement and prosecution of economic and financial crimes.
Section 6(b) of the Act charges the Commission with the investigation of financial crimes, while section 6(c) empowers it to coordinate and enforce economic and financial crimes laws and enforcement functions conferred on other persons or authorities.
Most importantly, section 6(m) empowers the Commission to take charge of, supervise, control and coordinate responsibilities relating to the investigation and prosecution of:
“all offences connected with or relating to economic and financial crimes.”
Section 7(1)(a) is equally instructive. It empowers the Commission to cause investigations to be conducted as to whether a person, corporate body or organisation has committed an offence under the EFCC Act or another law relating to economic and financial crimes.
Section 7(2) further identifies the legislation which the Commission is charged with enforcing and concludes with paragraph (f), which extends the mandate to:
“Any other law or regulations relating to economic and financial crimes…”
The language employed by the legislature is significant. The operative expression is not simply “all offences”. It is economic and financial crimes, together with offences connected with or relating thereto.
The EFCC’s own published copy of its Establishment Act confirms that section 6(m) specifically concerns offences “connected with or relating to economic and financial crimes”, while section 7(1)(a) refers to offences under other laws relating to economic and financial crimes.
It follows that the EFCC cannot, merely by virtue of being a federal law-enforcement institution, assume unlimited jurisdiction over every criminal offence.
The Supreme Court Has Drawn a Boundary
The Supreme Court’s decision in Nwobike v. Federal Republic of Nigeria is particularly instructive.
The question before the Court included whether the EFCC could prosecute offences which were not economic or financial crimes, including an allegation of attempting to pervert the course of justice.
The Supreme Court rejected the proposition that every form of corruption or criminality automatically falls within the EFCC’s statutory mandate.
The Court applied the ejusdem generis principle to the definition of economic and financial crime contained in section 46 of the EFCC Act and concluded that the expression “any form of corrupt malpractices” could not be construed as embracing every conceivable form of corrupt or criminal conduct. Rather, the expression had to be understood in the context of the economic and financial crimes enumerated in the statutory definition.
The significance of Nwobike cannot be overstated.
It establishes the important proposition that:
The EFCC is not a general-purpose prosecuting authority for every offence merely because the offence involves alleged wrongdoing, corruption, dishonesty or abuse of office.
There must be a statutory nexus between the offence and the Commission’s mandate.
That principle accords with the fundamental rule of administrative law that a statutory body can exercise only those powers conferred upon it by its enabling legislation or by another valid law.
But What of Frank Amah?
The Supreme Court’s decision in Frank Amah v. Federal Republic of Nigeria is sometimes relied upon to suggest that the EFCC may prosecute offences outside the strict catalogue of economic and financial crimes.
That authority requires careful treatment.
The issue in Amah included whether the EFCC could prosecute stealing under the Criminal Code of Lagos State. The Supreme Court ultimately upheld the prosecution.
The decision, however, should not be understood as conferring upon the EFCC an unlimited mandate to prosecute every offence under every Criminal Code or Penal Code provision.
Rather, the case illustrates that an offence created under another law may, in appropriate circumstances, be prosecuted by the EFCC where the factual and statutory circumstances bring the offence within the Commission’s lawful mandate.
This distinction is crucial.
A statute may create the offence; another statute may confer prosecutorial competence.
The existence of an offence under the Criminal Code does not, by itself, confer jurisdiction upon the EFCC. The necessary statutory connection must still be established.
Indeed, the subsequent Supreme Court reasoning in Nwobike demonstrates why Amah should not be read as a blanket authorisation for the EFCC to prosecute every non-economic offence.
The Cybercrimes Act Introduces a Separate Question
This is where the present case assumes a different complexion.
The defendants in the present matter were not charged under the EFCC Establishment Act. They were charged under section 24(2)(c) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015, as amended in 2024.
Section 24(2)(c) concerns communications transmitted through a computer system or network containing threats capable of harming the reputation of another person or entity, amongst other statutory elements.
The prosecution’s reliance upon the Cybercrimes Act therefore raises a separate statutory question.
Section 47 of the Cybercrimes Act provides:
“Subject to the powers of the Attorney General, relevant law enforcement agencies shall have power to prosecute offences under this Act.”
This provision is of considerable importance.
It means that prosecutorial authority under the Cybercrimes Act does not necessarily derive from the enabling statute of each individual law-enforcement agency. The Cybercrimes Act itself creates a statutory basis for prosecution by qualifying law-enforcement agencies.
The National Financial Intelligence Unit’s published copy of the Cybercrimes Act reproduces section 47 in these terms.
The 2024 amendment did not remove this basic prosecutorial architecture. The amended legislation continues to provide under section 47 that relevant law-enforcement agencies have power to prosecute offences under the Act, subject to the powers of the Attorney-General.
Consequently, it would be too broad to argue that:
“Because cybercrime is not an economic and financial crime, the EFCC can never prosecute it.”
That proposition does not sufficiently account for the Cybercrimes Act itself.
Is the EFCC a “Relevant Law-Enforcement Agency”?
This is, in my respectful view, the central issue.
The Cybercrimes Act defines a law-enforcement agency broadly by reference to an agency responsible for the implementation and enforcement of the Act.
The statutory framework also expressly contemplates participation by several law-enforcement, security and intelligence agencies in the implementation of the Act.
Significantly, the EFCC appears in the institutional framework established under the Act. The First Schedule to the 2015 legislation lists the EFCC among the institutions represented on the Cybercrime Advisory Council.
There is therefore a substantial statutory basis for arguing that the EFCC is a relevant law-enforcement agency for purposes of the Cybercrimes Act.
But a further question remains.
Does membership of the institutional architecture of the Cybercrimes Act automatically confer upon the EFCC unrestricted prosecutorial competence over every offence created by the Act?
In my view, the answer should be approached cautiously.
The phrase “relevant law enforcement agencies” cannot be interpreted in isolation from:
- the EFCC Establishment Act;
- the definition of “law enforcement agency” under the Cybercrimes Act;
- the coordinating role assigned to the Office of the National Security Adviser;
- the constitutional powers of the Attorney-General;
- the particular nature of the offence charged; and
- the statutory purpose for which the EFCC is exercising the power.
The Better View: Statutory Concurrency, Not Unlimited Jurisdiction
The preferable interpretation is that the two statutes operate concurrently, rather than that one statute silently repeals or enlarges the other.
The EFCC Act establishes the substantive institutional mandate of the Commission.
The Cybercrimes Act, on the other hand, creates cybercrime offences and provides a framework for their investigation and prosecution.
Where the EFCC acts pursuant to the Cybercrimes Act, its authority must therefore be traceable to that Act, rather than simply to the general provisions of the EFCC Act.
This is an important distinction.
The EFCC cannot say:
“We prosecute this offence because section 6 of the EFCC Act gives us power to prosecute all crimes.”
That proposition would be difficult to sustain.
But it may properly say:
“We prosecute this offence because it is an offence under the Cybercrimes Act, and section 47 of that Act confers prosecutorial power upon relevant law-enforcement agencies, of which the EFCC is one.”
Whether that argument ultimately succeeds in a particular case will depend upon the statutory construction adopted by the court and the facts demonstrating the EFCC’s status and role under the Cybercrimes Act.
The More Difficult Question: Can the EFCC Become the Victim and Prosecutor?
The Maryam Shehu charge raises an additional and potentially more troubling issue.
According to the charge reproduced above, the defendant allegedly published a statement accusing EFCC officials of assaulting one Ahmed Uthman and alleging that a Zonal Director had collected ₦20 million from another person.
The prosecution describes the publication as one intended to “tarnish the reputation of the Economic and Financial Crimes Commission.”
This formulation immediately raises questions of prosecutorial neutrality.
The EFCC is not merely investigating an alleged cybercrime in which an independent individual is the victim. It is itself the institution whose reputation is allegedly being attacked.
That circumstance does not automatically deprive the EFCC of prosecutorial competence. However, it makes the statutory foundation for its intervention particularly important.
The law does not ordinarily permit a public institution to manufacture jurisdiction merely by declaring itself the victim of conduct which it otherwise lacks statutory power to prosecute.
The prosecution must still establish:
(a) the existence of the offence;
(b) the applicability of the Cybercrimes Act;
(c) the statutory competence of the prosecuting agency; and
(d) the constitutional and statutory authority under which the prosecution is conducted.
The Constitutional Dimension
The Constitution of the Federal Republic of Nigeria recognises the prosecutorial authority of the Attorney-General, including the power to institute, take over and discontinue criminal proceedings.
Consequently, section 47 of the Cybercrimes Act expressly makes the prosecutorial power of relevant agencies subject to the powers of the Attorney-General.
The EFCC therefore cannot be regarded as exercising an entirely autonomous prosecutorial sovereignty.
Its power exists within the statutory and constitutional architecture of criminal prosecution in Nigeria.
This is particularly important where the offence charged is essentially one involving expression, publication, reputation and social-media activity.
Section 24 and Freedom of Expression
There is yet another layer to the matter.
Section 39 of the Constitution guarantees freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference.
That right is, of course, not absolute.
The Constitution permits laws reasonably justifiable in a democratic society to impose restrictions in specified circumstances, including matters relating to public safety, public order, morality and the protection of the rights and freedoms of others.
The constitutional question therefore is not whether speech on social media enjoys absolute immunity. It plainly does not.
The question is whether the particular application of section 24(2)(c) to the impugned publication satisfies the statutory ingredients of the offence and remains constitutionally justified.
This distinction is important because falsehood, criticism, allegation, insult, defamation, incitement and criminal threats are not legally synonymous concepts.
A publication which merely criticises a public institution or alleges misconduct by public officers should not automatically become a cybercrime merely because the institution considers the allegation damaging to its reputation.
The prosecution must establish the precise elements stipulated by section 24.
The Charges Must Be Examined Strictly
In criminal proceedings, the charge is the foundation upon which the prosecution stands.
The courts have repeatedly insisted that criminal liability must be founded upon a clearly defined offence created by law. A defendant cannot be convicted for conduct which the statute does not criminalise.
Accordingly, in the Shehu case, the prosecution would ultimately have to establish more than the fact that an Instagram publication was made.
It would have to establish the statutory ingredients of section 24(2)(c), including the requisite mental element and the nature of the communication contemplated by the subsection.
Similarly, in Abdulhamad’s case, the prosecution must establish not merely that an allegedly fabricated image was uploaded to X, but that the publication satisfies every constituent element of the statutory offence charged.
The fact that the publication allegedly embarrassed or damaged the image of the EFCC does not, standing alone, complete the offence.
Conclusion
The legal position may therefore be summarised as follows:
First, the EFCC Establishment Act, 2004 does not confer a general or unlimited power upon the Commission to investigate and prosecute every criminal offence in Nigeria.
Second, sections 6 and 7 of the EFCC Act substantially confine the Commission’s investigative and prosecutorial mandate to economic and financial crimes and offences connected with or relating to such crimes.
Third, the Supreme Court’s reasoning in Nwobike v FRN reinforces the principle that the EFCC’s statutory mandate cannot be enlarged into a general power to prosecute offences having no sufficient connection with economic or financial crime.
Fourth, the fact that an offence is created under another statute does not, by itself, confer prosecutorial jurisdiction upon the EFCC.
Fifth, however, the Cybercrimes Act creates an independent statutory regime. Section 47 expressly confers prosecutorial power upon “relevant law enforcement agencies”, subject to the powers of the Attorney-General.
Sixth, therefore, the proposition that the EFCC can never prosecute a cybercrime simply because cybercrime is not an economic or financial crime is too categorical. The more precise question is whether the EFCC is entitled, under the Cybercrimes Act and the statutory framework governing it, to exercise the prosecutorial power conferred by section 47 in the particular circumstances.
Seventh, the present prosecutions nevertheless invite serious scrutiny because the alleged cyber-offences appear, from the charges reproduced, to concern publications said to injure the reputation of the EFCC itself rather than conventional economic or financial criminality.
The decisive issue is therefore not simply “Can the EFCC prosecute cybercrime?” but:
“What is the precise statutory source of the EFCC’s authority to prosecute this particular cybercrime, and has that authority been lawfully invoked?”
That is the question that should be answered before the EFCC’s action is accepted as a straightforward exercise of its statutory mandate.
In my considered opinion, the EFCC Establishment Act 2004, by itself, cannot sustain the prosecution of a purely reputational or cyber-expression offence unconnected with an economic or financial crime. The prosecution can only stand if the EFCC can successfully derive an independent and applicable prosecutorial mandate from the Cybercrimes Act or another valid enactment.
The distinction is fundamental. A statutory agency cannot enlarge its jurisdiction by administrative practice, institutional convenience or the mere invocation of a criminal statute. Its authority must ultimately be found in the words of the law.
And in a constitutional democracy, that limitation is not a technicality—it is the very essence of the rule of law.
The author is a legal practitioner with a primary interest in corporate law and litigation. With a passion for legal research, writing, and advocacy, the author is dedicated to providing insightful analysis of evolving legal issues and contributing to scholarly and professional discussions on the law. It can be reached via imranridwan@gmail.com, 08131077061.
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