Gov. Ododo’s Jurisprudential Doggedness
By Alfred Anthony
The Kogi state-led lawsuit, under the leadership of Governor Usman Ododo, challenging the legality of Nigeria’s foremost anti-corruption agencies, the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other related offences Commission (ICPC), is a bold move in Nigerian legal history. This initiative taps into the core principles of democracy by questioning the procedural integrity of these institutions’ establishments. While the EFCC and ICPC have significantly contributed to Nigeria’s fight against corruption, the legality of their existence warrants examination. This case could therefore serve as a landmark for constitutional propriety in the creation of federal agencies.
There is no denying that both the EFCC and ICPC have held critical roles in combating corruption in Nigeria. The EFCC, since its inception in 2003, has been instrumental in prosecuting high-profile corruption cases, recovering public funds, and deterring criminal enterprises. The ICPC, created in 2000, has similarly focused on combating corruption in public institutions. These agencies have become synonymous with the fight for transparency and accountability, and their accomplishments deserve acknowledgment.
However, despite their achievements, the EFCC and ICPC have not been immune to criticism. Accusations of bias, selective justice, and political witch-hunts have occasionally clouded their reputation. There have been allegations that successive administrations have used these agencies to target political rivals and silence dissent. As commendable as their objectives may be, criticisms of selective enforcement raise questions about the agencies’ legitimacy and independence.
Here, then, is Governor Ododo’s administration’s argument that while corruption remains a formidable challenge, it is imperative to ensure that no illegality is used to combat other unlawful activities. The principle here is clear: the end does not justify the means. For an agency to wield such immense power, it must be created and operate strictly within the confines of constitutional procedure; it should reflect the collective will of the people both in creation and operation. Simply put, the contentious issues in the suit is that the EFCC’s establishment was done without adherence to the requisite legislative process, rendering its formation constitutionally questionable.
The Nigerian constitution, particularly Section 4, vests the legislative powers of the Federal Republic in the National Assembly. Yet, for a national agency with jurisdiction over states to be considered legally binding, it requires more than mere enactment by the National Assembly. The Constitution of the Federal Republic of Nigeria 1999 (as amended) provides a framework for creating agencies with federal jurisdiction. Section 11(1) stipulates that such agencies require the concurrence of at least two-thirds of state assemblies. By challenging the legitimacy of EFCC’s foundation on these grounds, Kogi state is initiating a critical discussion on adherence to constitutional provisions.
The core of Kogi state’s argument revolves around Sections 11 and 12 of the constitution, which outline the legislative requirements for the enactment of laws that apply across Nigeria’s states. Specifically, Section 11(1) states that in matters of federal intervention, particularly in relation to public order and governance, there must be a procedural endorsement involving the state assemblies. Similarly, Section 12(1) of the constitution states that for any treaty (or, by extension, a law of federal implication) to become enforceable domestically, it requires ratification by a two-thirds majority of the state houses of assembly. Kogi state’s argument suggests that this precedure was not observed when creating the EFCC and ICPC, making their existence unconstitutional.
If Kogi’s legal argument holds, the implications could be substantial. It would mean that the EFCC, despite its years of operation and achievements, may have been operating on an illegal foundation. This would not only question past prosecutions and actions taken by the agency but also demand a reconsideration of the legislative process for establishing federal institutions with inter-state jurisdiction.
The suit also brings into sharp focus the broader conversation about federalism and the rule of law in Nigeria. The constitution is designed to prevent any one arm or level of government from wielding unchecked power. If the EFCC and ICPC were indeed established without the concurrence of the states, this bypasses the legislative role of the states in a federal system, effectively undermining state autonomy.
Governor Ododo’s challenge, supported, as it were, by the attorneys general of other states, outlines a growing sentiment that the states must play a more active role in the establishment of national institutions, especially those with mandates that directly impact state governance. The attorneys general’s participation reflects a collective resolve among the states to assert their constitutional rights and responsibilities, suggesting that this suit is not an isolated incident but part of a larger call for structural integrity in Nigerian governance.
The outcome of this case will resonate beyond Kogi state and the EFCC; it will serve as a precedent for the establishment of federal agencies in the future. Nigeria’s democracy is young but vibrant, and every legal test strengthens its foundation. Should Kogi state succeed, it would reinforce the principle that all agencies, no matter how noble their mission, must be created within the bounds of constitutional provisions. This principle is essential in maintaining trust in the institutions that wield significant power over citizens’ lives.
If the courts find that EFCC’s creation did not meet constitutional requirements, it could lead to necessary reforms in the way federal institutions are established. This would not only legitimise such institutions but also foster a culture of compliance with democratic principles. In a country where perceptions of institutional bias and government overreach are prevalent, reinforcing the supremacy of the constitution is paramount.
Critics may argue that challenging the legality of the EFCC could disrupt Nigeria’s fight against corruption. However, it is essential to separate the agency’s mandate from its legal standing. An institution like the EFCC can, and should, continue to exist, provided it is established and operates within the legal framework. Should this suit succeed, the EFCC would need to undergo restructuring to align with constitutional requirements, potentially emerging stronger and with greater legitimacy.
Kogi state’s pursuit is not an attempt to shield corrupt individuals from accountability, but also a call for due process and respect for the rule of law. An anti-corruption agency founded on a constitutionally sound basis would be better equipped to serve Nigeria’s interests impartially and effectively, without accusations of political interference or selective justice.
In a nutshell, Kogi state-led suit challenging the legality of the EFCC and ICPC represents a critical juncture in Nigeria’s democratic journey. Governor Ododo and the supporting states attorneys generals must be seen as crusaders pressing for constitutional fidelity, emphasising that the nation’s fight against corruption should not come at the expense of legal integrity. Kogi state may well set a historic precedent for accountability in the creation of federal institutions.
Regardless of how the case unfolds, Nigeria stands to gain from the legal discourse this case would generate. Whether the EFCC’s establishment is upheld or questioned, this challenge enriches the nation’s legal and democratic jurisprudence. Kogi state’s efforts, therefore, should be viewed as a service to the nation; one that communicates the importance of constitutional adherence and sets a new standard for the establishment of future agencies with reach beyond subnational governments.
Anthony writes from Abuja.
