Placing EFCC’s Mandate In Proper Perspective

Everybody talks about the Economic and Financial Crimes Commission, (EFCC), daily.  This is not surprising since the anti-graft agency is equally confronting what everybody is bothered about in Nigeria. Corruption is an epidemic in any land, but in the particular instance of Nigeria, it has become a pandemic, a ruinous cancer of venomous proportion.

This was the situation before the EFCC came on board. Today, even the harshest detractor of the EFCC cannot but admit that considerable progress is being made and it is glaring to all of us that the only reason we talk so much about the anti-graft agency is just because we are simply impatient. We want a quick fix; we want the patient discharged with the surgical knife and stitches! It is against this background that it is essential to bring to the fore again and put in proper perspective the mandate of the EFCC. This is equally necessary in view of the volume of misconception, misinformation and falsehood being propagated by certain elements about the work of the anti-graft agency.

Basically, the mandate of the EFCC begins with prevention, investigation, arrest and ends with prosecution that is charging accused persons to court. At this point, the Commission is no longer in control or cannot determine what happens in court because it cannot be the accuser, the investigator and at the same time the judge in its own case. Has the Commission been keeping with its mandate as listed in Part 11 of its establishment Act 2004?

The answer is YES. This is better explained by the following basic statistics on its operations. The Commission as at date has through its Transactions Clearing Platform (TCP), treated over 17,000 enquiries from foreign investors as a result of which they have been saved from losing over $15 billion USD to scam contracts and business proposals. This is in addition to a record of recovery that towers above $11 billion USD and a record of conviction that exceeds 750. Besides, the Commission today has over 75 high profile cases with another 1,503 other cases in various courts across the country.

It is therefore obvious that the Commission has so much to show in term of its record of achievements within its mandate. The glaring gap between the number of cases filed in court and the number already decided by the courts especially the high profile ones have of late become a point of misinformation by some people in the media about the mandate of the Commission.

Politically exposed persons, whose cases are dragging in courts, are a pain in the neck of everyone. Having been investigated and charged to court, the EFCC, like every other Nigerian, cannot abort, short-circuit or lengthen the trial processes. Judicial process is a chain- all parties in an arbitration have key roles to play. The EFCC is just one of these parties and it is playing its roles effectively. The hysteria about slow judicial processes in the resolution of cases of former governors , ministers and other public officials is understandable but this is certainly not due to the negligence, incompetence or insincerity of the EFCC.

We all know the template and tenor of our judicial system. The same EFCC is recording phenomenal successes in the prosecution of advance fee fraud; cyber crime, capital market fraud and related cases. So, why are these cases running smoothly in courts and are quickly resolved with hundreds of convictions but cases of politically exposed persons taking four, five years in courts?

The answer is not far- fetched: advance fee fraud, capital market and cyber-crime crooks have no huge funds, no wherewithal of any kind to delay their trials ; the big crooks have all the resources and  networks to hire 10 or more Senior Advocates of Nigeria, SANs, who can easily use all legal rigmaroles and technicalities to prolong, frustrate or stall their trial.

Where, then, is the EFCC’s fault?  Should we turn blind eyes to clear violations of the provisions of the EFCC Act in relation to the prosecution of its cases by others and turn round to ask EFCC why it is not concluding cases already charged to court before taking on others? For clarity,the provisions referred to states as follows:

Section 19
(1) The Federal High Court or High Court of a state of the Federal Capital Territory has jurisdiction to try offenders under this Act.

(2) The Court shall have power, notwithstanding anything to the contrary in any other
enactment,
•  To impose the penalties provided for in this Act.
•  To ensure that all matters brought before the court by the Commission against any person, body or authority shall be conducted with dispatch and given accelerated hearing
•  To adopt all legal measures necessary to avoid unnecessary delays and abuse in the conduct of matters brought by the Commission before it or  against any person, body or authority.

(3) The Chief Judge of the Federal High Court or a High Court of a State or the High Court of The Federal Capital Territory Abuja, as the case may be shall by order under his hand, designate a court or judge he shall deem appropriate to hear and determine all cases under this act or other related offences under this Act.

(4) A court or judge so designated shall give such matters priority over other matter pending before it.

But then, here lies the real problem which no one seems to be ready to talk about. Contrary to these provisions, defence counsel file all manner of applications to stall trial and more often than not, these frivolous applications are granted, thus making EFCC helpless!

On another front, the public seems to find it convenient to wait for three, four years to await the outcome of election petition cases but finds it unbearable to wait for the resolution of corruption cases involving politically exposed persons!  We also do not consider it a big deal if litigations over land; chieftaincy titles; divorce and other cases prolong for keeps but are eager to suspect the EFCC when convictions of those who plundered our treasuries seem long in coming. In all of these instances, the trend of slow judicial processes are at work and it is this same trend that is making cases of politically exposed persons to drag for so long. The EFCC is sensitive about this because as a responsible law enforcement agency, the

Commission believes that, prompt convictions are the wages of any prosecution.   
To underscore the significance placed on conviction of any accused person, the EFCC has been advocating  the establishment of Special Courts for the trial of all corruption cases.

This is a novel proposition which is bound to fast-track judicial processes on corruption cases.  We cannot expect to achieve expeditious resolution of cases of economic and financial crimes through our regular courts unless the rules are amended as in the case of Lagos State. Aside the enormous number of cases usually assigned to judges, our level of infrastructures is not strong enough to allow for quick dispensation of cases. Besides, legal pyrotechnics is always at work in the trial of politically exposed persons and such is bound to delay the resolution of such cases in our regular courts. Based on these considerations, it has become imperative that we all join forces and speak in one voice about the establishment of such courts. This will serve useful purposes and place all parties in the trial of corrupt individuals on the pedestal of justice.

Oftentimes, we lump facts and fiction together whenever we want to give the EFCC a bashing, just for the fun of it. Why will the EFCC prepare “watery charges” against politically exposed persons, as being insinuated in some quarters?  Will such people not avail themselves of such a lacuna and seek accelerated trial so that they can be free and begin to enjoy their loot?  So, how do we reconcile claims of those accusing EFCC of delaying trial and those accusing it of filing weak charges before the court? Is there a meeting ground between the two claims? The truth of the matter is that the EFCC is too serious an agency to compromise anything in the course of its work. Ask those being investigated or prosecuted by the agency and they will tell you that the Commission is too thorough to a fault.

If we have not been responding to some of the misrepresentations of our mandate in the media by those who are supposed to know better, it is not for lack of having something to say. There are a lot of misconceptions about the mandate of the EFCC, especially as it relates to the investigation and prosecution of economic and financial crimes.

For the purpose of emphasis, the mandate of the EFCC is to investigate, arrest and charge to court all persons, corporate bodies or groups involved in economic and financial crimes. All these are expressly stated in part II of the EFCC Establishment Act, 2004.  The EFCC’s mandate does not include pronouncing judicial sentence on any accused person. This is the constitutional duty of the judiciary.  Whether a judge gives a short or long sentence to an accused person is not within the control of the EFCC. I think this clarification will go a long way in making the public understand the limit of the work of the EFCC.

Even, the contentious issue of plea-bargaining is not an EFCC construct. It is an issue of global jurisprudence and the local criminal justice system is only adapting it as a practical way of mitigating the effects of corruption on the polity.  Again, the judiciary has the final say on the fate of an accused person seeking plea-bargain.

We all have roles to play to move the anti-corruption train forward.  The EFCC is the vanguard in the fight but we also need soldiers of resolute spirit and selfless disposition to make the war a total success. It will be impractical of the EFCC to seek to win the war all alone. A collaborative effort is sure to make all of us winners of this war threatening our collective future.

Femi Babafemi is the Head, Media & Publicity of the EFCC