Daily Law Tips (Tip 644) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
What is the minimum amount of money (financial threshold) that must be involved in a financial crime, for the Economic and Financial Crimes Commission (EFCC) to get interested with investigation/prosecution? Rightly or wrongly, there is a believe out there, that Economic and Financial Crimes Commission (EFCC) has a financial threshold for crimes it can investigate or will want to investigate. Ever wondered what a high profile case is and how that term penetrated Nigerian legal system? This work examines the financial threshold of the EFCC through legislative (doctrinal) and sociological (non-doctrinal) tools.
The EFCC is a federal government agency, created by law in June 2004 as the Financial Intelligence Unit in Nigeria, empowered to fight money laundering and to enforce all laws dealing with economic and financial crimes in Nigeria. The specific relevant functions of the EFCC, as stated by its establishing law, are;
1. “the investigation of ALL financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud and contract scam”;
2. “the co-ordination and enforcement of ALL economic and financial crimes laws and enforcement functions conferred on any other person or authority”; as well as
3. “the examination and investigation of ALL reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved”.
One common word in all the above three (3) functions of the EFCC, is “ALL”. In summary the EFCC has powers and the responsibility to enforce all laws relating to economic and financial crimes in Nigeria as well as to investigate ALL financial crimes on its own, even where there is no report/compliant/petition and also to powers to investigate ALL reported cases of economic and financial crimes. Special powers of the EFCC, is that it can on its own commence investigation on any person, group or corporate entity, especially “where the person’s lifestyle and extent of the properties are not justified by his source of income”.
All through the 47 sections of the federal law that establishes the EFCC, there is no threshold or financial limitation/cap on the economic and financial crimes that the EFCC can investigate and prosecute. Furthermore, by the words of the law, no threshold was intended or implied rather an unlimited powers is offered and rested on the EFCC over all the economic and financial crimes. Hence, the EFCC has statutory duty to investigate all economic and financial cases and where there is a probable case, the EFCC is to prosecute. This is the reason, the EFCC can be sued by a person, for the EFCC to be compelled by court to investigate a financial crime.
Unfortunately, in reality and operations, the EFCC cannot investigate all the petitions/complaints it receives in a day. Imagine this picture, Nigeria with a huge population (unofficially rated at over 200 million), with many politicians, scammers, companies and businesses as well as unregistered businesses and foreigners in Nigeria, only one federal agency is to combat economic and financial crimes. With low access to justice, part of the works of the EFCC will include to investigate and reject many civil disputes often disguised as crimes, maliciously or ignorantly by complainants and their lawyers.
Statutory powers and duties need resources; funds and capacity to come to life. Like we say in Nigeria, “good soup na money make am” (good results are products of good/hard work). Both the budget and operational/technical abilities of the EFCC are very poor even as they are expected to investigate hundreds of cases in a country without reliable database of ex-convicts, social security numbers and houses addresses of citizens.
Furthermore, the report of Umar, Samsudin and Mohamad, reveals that the EFCC is under performing due to “factors such as lack of commitment; inefficient judiciary; insufficient budgets; and incompetent personnel.” By the internal structure and leadership of the EFCC is not left out, with the report stating that, “there also exists insufficiency of personnel, professionalism and the dominance of police in the realm of the leadership of the EFCC”. With the recent 2020 reports and investigations of corruption in the leadership of the EFCC, one wonders what is left of the alleged insufficient budget and personnel incompetency of the commission.
High profile cases in Nigeria are cases with enormous attention, often caused by the status/network/networth of the parties involved (suspect, complainant, victim or government), the sum involved, frequency of crime, media focus or political gains. High profile cases are also good for the profile and the ego of leadership of any concerned law enforcement agency in Nigeria. Parties involved in high profile cases are popular, with easily traceable investments, addresses and reliable data; so they are easier jobs for law enforcement agencies, where there is political will and no corruption. Hence, it is not strange that the EFCC may invest its very limited resources in high profile cases. However, there are no little thieves and all financial crimes are crimes enough. There is no need for justice to sought based on the sum or party involved.
The effect of the present approach of the EFCC, includes; lack of trust by the public and the assumption that the EFCC is unserious, discriminatory, political and that there is a financial cap/limit for crimes to be handled by the EFCC. Many people believe that economic/financial crimes involving less than One Million Naira (N1,000,000.00) or without highly placed Complainants may not receive the attention of the EFCC. By the way, fraudsters are off radar once they diligently maintain their crimes below the perceived financial threshold of the EFCC.
To further maximise the low resources of the EFCC is Plea Barging, which is often employed in high profile cases and utilised enormously by politically exposed persons. According to Justice Dahiru Musdapher (former Chief Justice of Nigeria), “Plea Bargain” is designed “to provide [a] soft landing to high profile criminals who loot the treasury entrusted to them.” A report of high profile cases in 2007 to 2010 under the EFCC, according to The Stolen Asset Recovery Initiative (a partnership between the World Bank Group and the United Nations Office on Drugs and Crime (UNODC)), shows 54 cases of politically exposed persons (mostly former governors, federal ministers, federal legislators and heads of big corporations) and the least sum therein was the case of 10 million Naira against Iyabo Obasanjo-Bello (then serving Senator).
The discoveries of Hassan Umar and Kasim Umar from field study conducted with questionnaires, to assess the “perception of Nigerians on the strength of the EFCC against its functional responsibilities to determine the adequacy and appropriateness of the powers”, are more shocking. According to Umar and Umar, relying on primary and secondary sources, their research revealed that “… EFCC lacks adequate prosecutorial powers; it also cannot effectively ensure and monitor compliance to the limit of foreign currency transfer ($10000) and the local cash transaction limit; the court system in Nigeria has also frustrated the efforts of the commission in addition to the unruly behavior of some senior legal counsels who often connive with some judges to subvert justice….”.
Furthermore, the Umar and Umar study revealed that “… the areas of crime covered by the EFCC as provided for by the law is much for the EFCC that some crimes like in the casino operations, drugs and narcotics, use of supernatural powers, etc. received less attention (3.67). EFCC should focus more on financial crimes, fraud and advance fee fraud only (4.03). The Nigerian court system has frustrated the efforts of the EFCC through delays and incessant injunctions (4.01). The senior legal counsel usually connive with the judges to subvert/manipulate judgements in favour of their clients (3.75)…”.
In conclusion, statutorily there is no law or regulation that stops the EFCC from investigating and prosecuting any economic or financial crime cases. However, the EFCC has little resources to apply to the too many pending cases and new demands for investigation. Hence, the EFCC appears to be unserious and discriminatory in its investigation and prosecution, focusing on high profile cases involving huge sums and often politically exposed persons. Expectedly, this has created a safe heaven for some offenders in crimes involving low sums, poor complainants or persons that are not out politically/religiously/militarily/royally exposed or connected.
Above all, like Odi Nwankwo recommended, “… activities or programmes of the anti-corruption agencies in Nigeria such as the Economic and Financial Crime Commission (EFCC) … should be strengthened” and effectively checked. I add that the EFCC should respect rule of law, be independent of politicians, have higher budget and accountability process and it’s leadership should not be limited to police officers.
My authorities are:
1. Sections 1, 2, 6, 7, 46 and 47 of the Economic and Financial Crimes Commission (Establishment) Act 2004. accessed 29 August 2020.
2. Umar, Samsudin and Mohamad, “Ascertaining the effectiveness of Economic and Financial Crimes Commission (EFCC) in tackling corruptions in Nigeria” (2018) 25(7) Journal of Financial Crime. 1, 9. accessed 29 June 2020.
3. Hassan Umar and Kasim Umar, “The Economic and Financial Crimes Commission and Corruption Management in Nigeria: A Perceptual Assessment of its Legal Framework” (2016)3(2) Asian Journal of Social Sciences and Management Studies. 140, 144 accessed 29 August 2020.
4. Odi Nwankwo, “Impact of Corruption on Economic Growth in Nigeria” (2014) 5(6) Mediterranean Journal of Social Sciences. 41, 45 accessed 29 August 2020.
5. Hanibal Goitom, “Plea Bargining: Nigeria” (Library of Congress, 2019) accessed 29 August 2020, citing Ikechukwu Nnochiri, CJN Abolishes Plea Bargain, Vanguard (Nov. 16, 2011), https://perma.cc/C3TS-VMHV.
6. The Stolen Assets Recovery Initiative, “ECONOMIC&FINANCIAL CRIMES COMMISSION, EFCC ON-GOING HIGH PROFILE CASES – 2007- 2010” (SARI) accessed 29 August 2020.
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