Not Only A Police Officer Can And Or Must Be Appointed As Chairman Of The Efcc!

By Hameed Ajibola Jimoh Esq.

A study on the trends of appointment of the past-Chairmen of the Economic and Financial Crimes Commission-herein after referred to as EFCC- reveals that they have been police officers. Of recent when Mr Ibrahim Magu has been facing some allegations before the Ayo Salami’s Panel of Inquiry/Investigation, some of the EFCC’s staff have been reported by the media to have been protesting in a way that the Chairman to be appointed to head the Commission (i.e. EFCC) must not be a police officer again and rather a civilian who can carry out the functions of the Commission should be appointed! This paper is therefore of the firm view that not only police officer can and or must be appointed as Chairman of EFCC.

Section 2(1) of the Economic and Financial Crimes Commission (Establishment, Etc.) Act, 2004, provides on the composition of the Commission thus

‘(1) The Commission shall consist of the following members-

• A Chairman, who shall- be the Chief Executive and Accounting Officer of the Commission;
• Be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or equivalent; …’. (Underlining is mine for emphasis). And by subsection 3 of the section 2 of the Act, it provides thus

‘(3) The Chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to confirmation of the Senate’.

From the above underlined words, in my humble view, there are some persons among whom the Chairman for the EFCC can be appointed:

1. a serving member of any government security or
2. retired member of any government security or

• a serving law enforcement agency not below the rank of Assistant Commissioner of Police or its equivalent; or

1. a retired law enforcement agency not below the rank of Assistant Commissioner of Police or its equivalent (In my humble submission, no other person not mentioned in these lists is qualified to be appointed unless and until the Act is amended to accommodate such named or listed person!).

Furthermore, it is observed that the past and present Presidents of Nigeria have always been appointing a police officer within the scope of the Act to head the Commission as the Chairman, for the reasons best known to them, with due respect! However, what this paper submits is that appointment of a Chairman of the Commission (EFCC) should and must not be restricted to a police officer as the Act in section 2(1)(b) recommends either a serving member of any government security or any any retired member of any government security as can as well be appointed as Chairman of the Commission. It is interesting to note that those who form the National Security Agencies of Nigeria are listed as only three (3) in numbers under the National Security Agencies Act, 2004 (as amended). Take for instance, the Preamble to the National Securities Act, provides thus

‘An Act to disband the Nigeria Security Organisation and to create three security agencies, charging each with the conduct of the relevant aspect of the National Security and other related matters’. Section 1 of the Act lists these three security agencies as follows:

There shall, for the effective conduct of national security, be established the following National Security Agencies, that is to say-

• the Defence Intelligence Agency;
• the National Intelligence Agency; and
• the State Security Service.

Therefore, this paper humbly submits that the Armed Forces members or officers (i.e. the Nigerian Army, the Nigerian Navy and the Nigerian Air Force) cannot be appointed as Chairman of the EFCC. The EFCC Act in the said section (2)(1)(b) (supra) specifically mentioned ‘security’ and it is my humble submission that ‘Armed Forces’ are not ‘security agencies’ under the National Security Agencies Act rather, they are ‘Armed Forces’ under the Armed Forces Act, 2004 (as amended) and the word ‘security’ cannot be interpreted to mean or to include the ‘Armed Forces’. I have placed reliance in my submission here on the case of EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS. (2006) LPELR-1056(SC), where the Supreme Court of Nigeria held thus

‘It is now firmly established that in the construction of a Statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The latin maxim is “Expressio unius est exclusio alterius” – i.e. the expression of one thing is the exclusion of another. It is also termed ‘inclusion unius est exclusio alterius” or “enumeratio unius exclusion alterius” – See Legal Maxims in Black’s Law Dictionary Seventh (7th) Edition page 1635. See also the cases of Ogbuanyinya & 5 Ors. v. Okudo & 2 Ors. (1979) 6-9 SC. 32; (1979) ANLR 105; (1979) 6-9 SC. 24 at 35 (Reprint); Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) 280; The Attorney-General of Bendel State & 2 Ors. v. Aideyan (1989) 4 NWLR (Pt.118) 646; (1989) 9 SCNJ 80; Udoh & 2 Ors. v. Orthopaedic Hospital Management Board & Anor. (1993) 7 SCNJ (Pt.11) 436; (1993) 7 NWLR (Pt.304) 139 at 148 and many others. In other words, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue.’ Per OGBUAGU, JSC. (Pp. 20-21, Paras. E-C).

Therefore and finally, it is my humble submission without prejudice to the submissions made in this paper above that:

1. not only a police officer can and must be appointed as Chairman of the EFCC;
2. either a serving or retired member or officer of either of the: Defence Intelligence Agency; National Intelligence Agency; or State Security Service can as well be appointed as Chairman of EFCC.
3. No Member or officer of the Armed Forces (i.e. the Nigerian Army, the Nigerian Navy and the Nigerian Air Force) can ever be appointed as Chairman of the EFCC unless and until the EFCC Act is amended to that effect;
4. No civilian can ever be appointed as Chairman of the EFCC unless and until the EFCC Act is amended to that effect;

I therefore humbly recommend that the President of the Federation should in this instance, appoint any member of either a serving or retired member or officer of either of the: Defence Intelligence Agency; National Intelligence Agency;  or State Security Service as Chairman of EFCC, for a more transparent rotation of the Composition of the Commission among the law enforcement and security agencies of government.

Email: hameed_ajibola@yahoo.com