Category: Commentaries

By Felix Oladeji

The Economic and Financial Crimes Commission (EFCC) of Nigeria has been one of the more vocal – and at times controversial – anti-corruption agencies (ACAs) in Africa. It has been instrumental in charging and prosecuting senior political leaders and businessmen with political links, as well as in recovering and repatriating significant stolen resources that belong to the Nigerian state. Yet it is also subject to frequent political interference, which reduces its effectiveness and means that it is often seen as an arm of the incumbent government without an independent mandate. Senior-level functionaries of EFCC are perceived as being not immune to political pressures, which is one reason why the commission has not been able to function credibly, while operational inefficiencies caused by insufficient funding and lack of technical capacity and expertise among staff also undermine the effectiveness of the commission.

Successive Nigerian governments have tried to tackle corruption through legislation and the creation of anti-corruption agencies. Indeed, there is evidence that appears to suggest that EFCC senior officers do not seem to be immune from political pressures, with some observers having linked the falling rates in prosecution to such interests and selective prosecution. These linkages evidently have a negative impact on public perception of the commission.

As damaging rent capture is common in Nigeria for structural reasons, the EFCC’s role in tackling some of the more severe instances of corruption is critical. A report by PricewaterhouseCoopers (Pwc) estimates that corruption could cost the Nigerian economy 37 percent of its gross domestic product (GDP) by 2030, therefore the EFCC plays an important role in reversing this trend. The EFCC is a statutory body with an ambitious mandate, yet it is also subject to frequent political interference which reduces its effectiveness.

This makes it a unique organisation in the Nigerian political settlement space – it is a reproducible combination of distribution of power and distribution of benefits. Seen in this light, the effectiveness of the EFCC or the outcome of EFCC’s enforcement in terms of successful prosecutions and lower levels of corruption is an interaction of, or contestation between, powerful organisations that have the ability to influence outcomes, and usually not in rule- following ways.

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These organisations are able to use their influence over enforcement in a manner that aids their political interests; and when rules can be thus distorted or infringed, enforcement is usually weak, as is the case in many developing countries including Nigeria. It is equally important to note that these powerful organisations are not coalitions with consistent memberships. Political affiliations are fluid in Nigeria and ruling coalitions can have varying memberships over periods of time, resulting in differential outcomes for the EFCC. While it is safe to say that these outcomes rarely differ in terms of the general levels of corruption and enforcement, they do however differ in terms of the groups of people who are affected.

Some commentators have suggested that inefficiencies of the Nigerian legal system prevent EFCC from fulfilling its mandate, with the EFCC itself associating some of its challenges to judicial hostility and delay in courts. It is important to note, however, that while delays may persist at the lower courts, the Court of Appeal has sought to mitigate the effect of delays in the justice system by providing for a system of fast-tracking criminal appeals through its 2013 Practice Direction. This legislation mandates that the presiding Justice of each division of the Court of Appeal, in conjunction with the Deputy Chief Registrars of the division, ensures that their registries give priority to the listing, consideration and determination of all applications and substantive appeals related to agencies such as the EFCC, the ICPC and other recognised LEAs. Similar provisions are found in the Supreme Court (Criminal Appeals) Practice Directions 2013. As a result, adjournment on criminal matters that usually take three to four months at the Court of Appeal and possibly as long as seven to eight months at the Supreme Court are now usually adjourned for two weeks to one month with the new Practice Direction.

In recognition that delayed criminal proceedings prevent effective administration of criminal justice, the Court of Appeal and Supreme Court issued their respective practice directions to also mitigate delay in the administration of criminal judges. In Dasuki v Federal Republic of Nigeria, the Supreme Court recognised the necessity of a speedy trial and implored the court and the parties (including their counsel) to avoid any antics aimed at delaying the determination of the matter.

In respect of inordinate delays in the conclusion of corruption cases, it is important to note that the EFCC Act contains a novel provision in Section 40, which states that an application for stay of proceedings in respect of a criminal matter brought by the EFCC shall not be entertained until judgment is delivered by the High Court. This provision was also introduced into the Administration of Criminal Jurisdiction Act 2015 (ACJA), and in both cases was introduced to prevent the use of frivolous appeals against interlocutory rulings of the trial court pending the final judgment of the said trial court. As previously noted, the 2013 Practice Direction also sought to mitigate the effect of delays in the justice system by providing for a system to fast-track criminal appeals.

However, legal representatives have relied on technical legal principles such as filing a ‘no case submission’, which is not treated as an interlocutory decision and means that the defence has the right to appeal against any refusal to uphold a submission. One example where this strategy was used is the high-profile case of Walter Wagbatsoma v Federal Republic of Nigeria. The prosecution had charged the accused with the offences of advance fee fraud, obtaining by false pretense and forgery in respect of an oil subsidy scam. When the prosecution closed its case, the defence made a no-case submission which was refused by the trial court; however, in doing so the court considered and ruled on a point of law (the applicability of certain sections of the Admiralty Jurisdiction Act) on which points were not raised by either the prosecution or the defence, and neither was given the opportunity to address the court on these issues. Consequently, at the Supreme Court, the ruling of the trial court on the no-case submission was struck out and the case was remitted back to the trial court for retrial. This happened six years after the case was filed and almost four years after the judgment on the no-case submission was delivered, which shows the impact of such dilatory tactics on the delay and weaknesses in the Nigerian judicial system.

To further curb delays in the judicial process, the ACJA introduced several other provisions including Section 396 of the ACJA. This provides that upon charging an accused person to court, the trial of the defendant shall proceed from one day to another until the conclusion of the trial, and where it is impracticable to proceed from one day to another, no party to the proceedings shall be entitled to more than five adjournments from arraignment of the accused person to final judgment. Furthermore, the interval between each adjournment shall not exceed fourteen days.

The ACJA further states that where it is impracticable to conclude criminal proceedings after the parties have exhausted their five adjournments each, the interval between one adjournment to another shall not exceed seven days including weekends. It goes on to provide that in all circumstances the court may award reasonable costs in order to discourage frivolous adjournments. The practicality of this provision of the ACJA has been called into doubt; however, as it does not take into account the quantity of case files (particularly as the courts do not have specialist corruption divisions), or the busy schedule of both defence and prosecution counsels. Furthermore, it does not cater to exigencies such as securing the attendance of witnesses that may prejudice the dispensation of a fair trial, as espoused in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Furthermore, the EFCC is hugely significant politically, which is why policy that could make the commission more effective may be difficult to achieve. While it might be so that procedural and political considerations limit the effectiveness of the EFCC, measures could be put in place to nudge the organisation in the right direction. Hence, the tenure of the Chairperson and Secretary of the EFCC should be fixed and not renewable, and should straddle at least two tenures of a President and Senate (that is between five and six years) to limit political influence over the EFCC. The Board of the EFCC should also have a staggered tenure, with no more than a third of members being appointed by the government in power.

Also, efforts should be made to undertake an organisational effectiveness map for the EFCC that identifies skill sets that are needed. Lastly, more relevant, targeted and bespoke training programmes should be designed that link to the skills sets that are identified as lacking. Deliberations should continue on the institutional arrangements and focus of the ACAs (EFCC and ICPC) to understand the overlap and to allow for streamlining where needed.

• Oladeji writes from Lagos, Nigeria.