The Gusau Division of the Federal High Court, has barred the Economic and Financial Crimes Commission (EFCC) from inviting, arresting or detaining the former governor of Zamfara state, Alhaji Bello Muhammad..
On 31st May, 2023, Justice A. B. Aliyu, in suit No. FHC/GS/CS/30/2021 – The Government of Zamfara state & 1 Anor VS. EFCC & 1 Anor, held that that the EFCC has no power to investigate the disbursement of state funds or invite the state government officials for interrogation over the utilization of State funds that have been appropriated by the State House of Assembly.
The Zamfara government’s lawyer, Mike Ozekhome, SAN, through originating summons, filed on 16th November, 2021, challenged the constitutional powers of the EFCC to invite, arrest, detain, investigate and interrogate state government officials over the disbursement and utilization of State funds appropriated, which action the Assembly is constitutionally empowered to take.
Ozekhome sought the court’s determination on, whether having regards to the provisions of sections 120, 121, 122, 123, 124, 125, 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the EFCC has the constitutional authority or power to conduct investigation or inquiry into the disbursement of monies appropriated by the House of Assembly of Zamfara State under any law or appropriation bill; whether the EFCC has the constitutional powers to invite past and present officials of the Zamfara State Government for the purpose of explaining how funds meant for security votes, estacodes and travelling allowances were utilized, or are being utilized, when such funds are such that only the Auditor-General of Zamfara State and the Zamfara State House of Assembly have the constitutional power to conduct investigation and exercise powers and control over.
According to Ozekhome, the EFCC’s investigation into the disbursement and utilization of the public funds appropriated by the House of Assembly of Zamfara State, is a flagrant violation of the doctrine of vertical separation of powers between the Federal government and the State Government under a federal system, more especially as the powers of such investigation have been vested in the Auditor-General of Zamfara State and the House of Assembly of Zamfara State by sections 125, 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which Constitution is supreme and guides the relationship between the Federal government and the State Government.
However, the EFCC, through their counsel, Mr. Rotimi Jacobs, SAN, contended that by the EFCC (Establishment) Act, LFN, 2004, the anti-graft agency has the powers to investigate State officials as regards the disbursement and utilization of State funds, and that the powers granted to the Auditor-General of the State by the Constitution with respect to State funds is only to audit the funds and/or expenses of the State.
He further contended that the investigative powers of the State House of Assembly do not extend to discovering whether an economic or financial crime has been committed.
Jacobs argued that the EFCC as an administrative body established by Statute, cannot be stopped from performing its statutory duties.
The counsel to the Attorney General of the Federation made similar submissions to the effect that by sections 6 and 7 of the EFCC (Establishment) Act, LFN, 2004, the EFCC has the powers to investigate all economic crimes irrespective of whether the act was committed with respect to State or Federal funds.
However, Justice Aliyu held that the oversight and investigative powers over the disbursement and utilization of State finances are constitutionally vested in the State House of Assembly and that the EFCC cannot usurp the oversight functions constitutionally vested in the State House of Assembly under sections 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999.
The court further held that it is the Auditor-General of the State that has the constitutional powers to conduct checks on State institutions with respect to disbursement and utilization of State finances and make report on same to the House of Assembly of the State.
The court amongst others, relied on the Supreme Court’s judgement in NWOBIKE V. FRN (2021) LPELR-56670 (SC), which earlier held that the powers to investigate economic and financial crimes were not open-ended or at large.
The court held that the anti-graft agency lacks the constitutional powers to take over the oversight functions and powers vested in the State House of Assembly and the Auditor-General of the State so as to demand submission of financial reports and records from the State institutions.
The court also held that the action of the EFCC in taking over the oversight functions of the State House of Assembly and Auditor-General of the State with respect to the disbursement and utilization of Zamfara State funds is a violation of the Federal principle which does not permit one tier of government to meddle in and take over another tier of government.
The court accordingly granted all the reliefs sought, including orders restraining the EFCC whether by itself, its Chairman, officials, agents, privies or otherwise, howsoever, from inviting, arresting, detaining, intimidating, harassing or from further inviting, arresting or detaining the past and present officials of the Government of Zamfara State (which of course includes but is not limited to the immediate past Governor of Zamfara State, Gov. Bello Mohammed Matawalle); or in any way interfering with their personal liberty or investigating or interrogating them over the disbursement or utilization of funds appropriated by the House of Assembly of Zamfara State; on the basis of the same facts or similar facts as stated in the suit; except through the House of Assembly of Zamfara State, and in strict compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended.