Femi Falana (SAN) contests Dr Olisa Agbakoba’s assertion that the EFCC is unconstitutional, urging lawmakers to strengthen its legal foundation.

In a decisive move, renowned human rights activist and Senior Advocate of Nigeria (SAN), Femi Falana, has addressed a formal letter to the Senate President, Senator Godswill Akpabio, and the Speaker of the House of Representatives, Tajudeen Abbas.

The letter, dated 17 October 2024, expresses Falana’s opposition to the legal perspective recently shared by Dr Olisa Agbakoba, a former President of the Nigerian Bar Association, regarding the constitutional status of the Economic and Financial Crimes Commission (EFCC).

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Falana’s letter directly challenges Agbakoba’s claim that the EFCC is an “unlawful organisation” due to its alleged unconstitutional establishment by the National Assembly.

Agbakoba’s view was outlined in letters sent to the Senate and House of Representatives on 14 October 2024, where he argued that the EFCC exceeded the legislative powers of the National Assembly and should, therefore, be considered illegitimate.

In his response, Falana argued that Agbakoba failed to reference any specific Supreme Court ruling that supported his position, contradicting the assertion that the court had often criticised the EFCC’s existence.

Instead, Falana pointed out that the Supreme Court has, on several occasions, validated the constitutional roles played by both the EFCC and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) in Nigeria’s fight against corruption.

Citing the landmark case Attorney-General of Ondo State v Attorney-General of the Federation & Ors (2022), Falana noted that the Supreme Court upheld the constitutionality of the ICPC Act, rejecting challenges to its validity based on principles of federalism.

According to Falana, this ruling confirmed the National Assembly’s authority to establish bodies like the EFCC, which are crucial to enforcing Nigeria’s commitment to eradicating corruption, as outlined in section 15(5) of the 1999 Constitution.

He added that if there is any perceived breach of federalism principles, it stems from the Constitution itself. Falana stressed that, as long as these bodies operate within the scope of the Constitution, they cannot be deemed unlawful.

Falana also referred to a recent case, Attorney-General of Abia State v Attorney-General of the Federation (2024), where the Supreme Court struck down an attempt to challenge the EFCC’s authority over state government accounts.

The court ruled that the case lacked merit, reaffirming that the EFCC’s mandate extends to all levels of government.

Notably, Falana pointed out that no Nigerian state has ever formally challenged the legality of the EFCC Act in court, despite ongoing debates and the resistance of certain state governments to the commission’s anti-corruption efforts.

Falana criticised some state governments for their attempts to undermine the EFCC’s investigations, particularly through the use of legal obstacles and frivolous injunctions aimed at protecting public officials from prosecution.

He emphasised the need for cooperation between federal and state authorities in the fight against corruption, urging lawmakers to take a proactive stance in the ongoing constitutional amendment process.

Falana called on the National Assembly to use the amendment as an opportunity to entrench both the EFCC and the ICPC into the Constitution.

By doing so, he argued, these agencies would be strengthened and shielded from future legal challenges, enabling them to continue their essential role in combating corruption and financial crimes in Nigeria.

The debate over the EFCC’s legal status has sparked a wider discussion on the scope of federal and state powers in Nigeria’s anti-corruption framework.

Falana’s intervention seeks to clarify the EFCC’s constitutional legitimacy and highlights the importance of ensuring that key anti-graft bodies are empowered to carry out their mandates effectively.

As the constitutional review progresses, Falana’s call for the constitutionalisation of the EFCC and ICPC may shape the future of Nigeria’s fight against corruption, reinforcing the need for strong and independent institutions to safeguard public accountability.