A Federal High Court, Ado Ekiti, Tuesday, January 30, 2018, told the Economic and Financial Crimes Commission (EFCC) that it cannot probe states’ finances without a report of indictment from States’ Houses of
Assembly.
Justice Taiwo O. Taiwo made the declaration in a judgement
delivered in a suit filed by Ekiti State government against the EFCC,
the Inspector General of Police, the Speaker, Ekiti State House of Assembly, the Clerk and 13 others.
The state’s Attorney General filed the suit after the commission sent
letters of invitation to some government officials seeking details of some financial transactions of the state.
The EFCC also sent letters to the banks seeking financial books of the
state in their custody.
Justice Taiwo Taiwo held that the EFCC cannot usurp the oversight
functions vested in state assembly under Sections 128 and 129 of the 1999 Constitution to initiate a probe or criminal proceedings against a state official.
He said that the financial institutions were not entitled to submit to,
release to or any manner whatsoever to disclose to any person, body or
agency, including the EFCC and IG, or any other investigating body, any document, financial records etc.
According to him, only the state legislative is vested with oversight and investigation role over state finances, appropriation and
implementation after receiving a formal report from the Auditor
General or the Accountant General as the case may arise.
Referring to section 125 (c) of the constitution, Justice Taiwo said, “It is unassailable that there is separation of powers. Under a federal system, sections 4, 5 and 6 of the Constitution
provide separation of powers which guarantees independence and disallows encroachment of powers.
“The power for control of fund, financial outflow, appropriation are
vested in the House of Assembly.
“It is the Auditor General of the state that has the power to conduct check on all government corporations and to submit his report to the
assembly.
“Nobody including the court can read other meaning into the clear
provision of the constitution.
“The assembly has the responsibilities on the management of funds by the executive. They have the responsibility to ensure fund
management, cut wastages, reject corruption.
“The first defendant (EFCC) is bound to operate within the constitution and cannot operate like the lord of the manor. It is statutory duty; it is not a licence to contravene the Constitution.
“I can’t by any stretch of imagination see how the statutory functions of the EFCC can extend to a state in a federation under any guise to
the extent that the eight to 18 defendants (banks) will be directed to
submit bank details.
“Yes, the first defendant can investigate any person or corporate
organisation, what it can’t do is to usurp the powers of the assembly.
“The Federal Government cannot impose its statutory duties on a state
in flagrant disobedient of the constitution. The prosecution should not ride roughshod of the constitution. It is the duty of judges to ensure they don’t listen to sentiment of the public. I resolve all
issues in favour of the plaintiff. I grant all reliefs sought by the
plaintiff in view of the fact they are live issues.”
Senior counsel to the state government, Mike Ozekhome, while commenting in the development, said: “The court made it clear today that the EFCC is not an omnibus, rampaging policeman or guardian agent
that monitors state finances, receipts, expenditure and use of state
finances and that, that is the job of the state of assembly – the
doctrine of separation of power, horizontally and vertically, the
principle of division of labour, all those doctrines propounded by
great philosophers of yore, particularly as popularised by Baron De’
Montesquieu in 1748, made it clear that
“The FG cannot railroad itself to begin to examine the functions, the
amount received by the state, how it has been used, whether part of
the money has been embezzled. Section 6 of the EFCC establishment ACT
does not cover it.
“It only says it has the powers to investigate financial crimes
against persons, an individual, a corporate, it didn’t say against
the state government and as the judge rightly said, quoting several
authorities like the Supreme Court of Nigeria and the Supreme Court of America made it clear again and again that the federal government
does not have powers to investigate state finances, the state
government at the center does not have sovereighty, if a state feels there is a financial misappropriation against an offifial of the state, can invite the anti graft agency such as the EFCC, police or the ICPC but not for the EFCC to become a sentinel monitor general at the door step of each state of the federation watching how much that
has been appropriated to that state under section 162 of the 1999
constitution is being utilised, or that money is being used or whether the money is being wasted. You cannot under the subterfuge of
investigated persons Nicodemus rely sneak into a state to begin to
look into its accounts.
Let us not make this mistake, people keep saying that the EFCC or ICPC
or police cannot be restrained to do their job, no,it is not true, I
have up to twelve decisions by several courts that say if they goes against the law, or violates peoples right in their attempt to perform their function, the law says they can be restrained by the court since the court is the last hope of the common man.
“This is what the judge has courageously done today by putting the
EFCC where it belongs.
“The EFCC has behaved in this instance as if they are above the law
and like I said, we have to continue to use the court as an instrument
of social engineering.
“I advise the federal government to ensure that it obeys the rule of
law and court orders. I also advise the EFCC to always toe the path of the law in discharging its duties. They don’t obey the rule of law,
they try people in the media and get wrong advices.”