By O. G. Chukkol
Prelude
The governor of Lagos State, Babajide Sanwo Olu, has reportedly signed a new bill into law establishing an agency similar to the Economic and Financial Crimes Commission, EFCC and the Independent Corrupt Practices Commission, ICPC.
TheNigeriaLawyer (https://thenigerialawyer.com/new-law-empowers-lagos-to-take-over-tinubu-fashola-ambodes-alleged-corruption-cases-from-efcc-report/) reported that the legislation is titled ‘Lagos State Public Complaints and Anti-Corruption Commission Law’ and the anti-corruption agency established by the said law will not only have exclusive right to investigate financial crimes and corruption cases involving the finances of the Lagos State Government, it will also take over all the pending cases before other anti-graft agencies.
For the avoidance of doubt, section 13(3) of the law reads, “The commission shall upon the commencement of this law take over 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.”
Also, section 13(5) states, “The commission shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government.”
Thus, the purpose of this write up is to show how the law is valid but will be Inoperative
Why the Lagos law is valid
The law is valid because it is within the competence of the Lagos State House of Assembly though exercisable concurrently with the National Assembly.
See the case of A.G. Ondo State v. AG. Federation (2002) 9 NWLR (Pt 772)222 where the Supreme Court held that both the Federal Government and State Governments can enact laws to abolish corruption pursuant to sections 4, 15(5), 318, item 60(a), 67 and 68 in Part I of the Second Schedule and section 2(a) of Part III of the Second Schedule of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Uwais, CJN, who delivered the Leading judgement remarked thus:
“…both the Federal and State Governments share the power to legislate in order to abolish corruption and abuse of office. If this is a breach of the principles of Federalism, then, I am afraid, it is the Constitution that makes provisions that have facilitated breach of the principles. As far as the aberration is supported by the provisions of the Constitution, I think it cannot rightly be argued that an illegality has occurred by the failure of the Constitution, to adhere to the cardinal principles which are at best ideals to follow or guidance for an ideal situation.”
The above position was later adopted in the cases of Olafisoye v. F.R.N. (2004) 4 NWLR (Pt. 864) 580 and FRN v Anache & Others (2004) 14 WRN 1 61
Why the Lagos law will not operate
The new law will not operate because EFCC Act and ICPC act are already in operation. Remember, the Lagos Law provides that the new commission shall “take over 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.” In other words, EFCC and ICPC are expected to hand over all cases of corruption to the Commission so far as they relate to Lagos Finances.
With profound respect such provision is far reaching and cannot operate side by side with EFCC and ICPC Act. The law has stretched powers of the new Commission too far.
The new Lagos law also provides that “the commission shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government.” This provision cannot also stand even if the power was not made exclusive.
By Section 4(5) of the constitution, any law made by the National Assembly will prevail over the law made by the State House of Assembly. In other words, the EFCC Act and the ICPC Act are superior to the Lagos Public Complaints and Anti-Corruption Commission Law. However, the Lagos law is not void. In the case of Attorney-General of Bendel State v Attorney-General of the Federation (1981) 10 SC, it was held that under the doctrine of covering-the-field, the state law is merely rendered inoperative while the federal law is in operation. The state law is only kept in abeyance by the higher federal law and therefore rendered inapplicable for the time being. The state law revives in the event of the federal law ceasing to have force. Therefore the use of the term, ‘inconsistency’, in the cases under the doctrine should be taken to mean, not invalidity of the state law, but inoperativeness of the state law arising from the conflict between the two laws; because the State law merely gives way “out of necessity” See also Musa v INEC (2002) LPELR-11119 (CA), 58-59.
Concluding remarks
The enactment of this new law is no doubt a commendable step and apparently a move by the Lagos State Government to deepen the culture of accountability and transparency in the expenditure of appropriated public funds. However, the nature of our constitutional jurisprudence cannot allow it to operate because EFCC and ICPC have covered the field already. Secondly, it is regrettably submitted that one cannot trust states with such initiative as they may end up only shielding their officers from prosecution. While one cannot defend EFCC and ICPC as being fair and unbiased in their operation, leaving the operation of such anti-corruption Commission exclusively to the Federal government as envisaged by section 4(5) of the constitution is the best because decentralizing it will only make things (witch-hunting, shielding of persons in good books of government etc) worse.
PS:
The National Assembly makes laws for the Federal Republic of Nigeria, not federal government. It makes laws for everyone in Nigeria.
The implication of the foregoing is that the National Assembly can validly enact a law and empower an agency to prosecute on corruption related issues even though the subject of crime belongs to the state government.
In the case of Nyame v FRN the second issue for determination was whether EFCC had locus standi to try Nyame given the fact that the funds allegedly embezzled belongst to Taraba State Government.
Rotimi Jacobs , SAN argued beautifully on behalf of the EFCC that prosecution of offence is not determined by the ownership of the property allegedly stolen or misappropriate or even the subject matter of the charge, what is however relevant to determine are the following:
(a) Who can exercise prosecutorial power over the offence?
(b) The nature of the offence charged;
(e) Where the offence is committed.
That where the offence charged is a Federal offence irrespective of the ownership of the subject matter of the offence, the Attorney General of the Federation or any relevant Federal Agencies may by the provisions of Section 174 of the Constitution 1999 prosecute the accused in any court in Nigeria except court martial.
Though the court was reluctant to delve into the court merit of the case, it however agreed with the distinguished silk and said that the answer to whether EFCC had locus standi or not cannot arise since in the enforcement of the law especially that of the criminal law the Federal Government or its agencies can initiate and prosecute once the relevant statute so authorises
In the light of the foregoing, I do not think ownership of finance is really relevant in determining the power of the National Assembly to legislate on same
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O. G. Chukkol, ACIArb (UK)
Final Year Student,
Faculty of Law,
ABU, Zaria
[email protected]
08032470318
April 26, 2021
