The ongoing legal tussle between 19 States of the Federation and the Federal Government presents a litmus test for the Supreme Court under the leadership of the Chief Justice of the Federation (CJN), Hon. Justice Kudirat Motonmori Olatokunbo Kekere-Ekun (GCON). During her swearing-in by President Bola Ahmed Tinubu as Nigeria?s 23rd substantive CJN on Monday, September 30, 2024, Hon. Justice Kekere-Ekun had vowed to do all in her power to protect the independence and integrity of the Judiciary. To quote her: ?Under my leadership, the Judiciary would adhere to the principles of honesty, transparency and integrity and that independence of the judiciary is always a topical issue . . . at the Supreme Court. For instance, our judgments are free from external influence. While it is essential for the judiciary, as the third arm of government, to maintain good working relationships with the executive and legislative branches, this should not be misconstrued as subservience.

?This is a new dawn and a new era in the Nigerian Judiciary. I wish to assure my fellow Nigerian citizens that we are committed to working more diligently to improve public perception of the Nigerian Judiciary.

?Over the years, various factors have contributed to the negative image of the Judiciary. However, we are determined to change this narrative and make the Judiciary a source of pride for all Nigerians. When the legal compass of a Nation falters, everything suffers, including public and international perception . . .?

The case between the 19 States and the Federal Government (19 states Vs. Attorney-General of the Federation) on the legality of the Federal anti-graft agencies presents a golden opportunity for the Supreme Court under the watch of Hon. Justice Kekere-Ekun to convince Nigerians of its independence from the Executive arm of government.

Clearly, the only way that the apex court can do this is by applying the law without minding whose ox is gored because the case before it is a matter of law, not politics. The fact that the case pitches the state governments against the Federal Government does in any way not make it a political issue. It is strictly about the Constitution of the Federal Republic of Nigeria, as amended. The big questions for which Nigerians are expecting answers from the Supreme Court are: Were the letters and the spirit of the Constitution obeyed while enacting these laws? Was the sanctity of the nation?s grundnorm, the Constitution, desecrated in the process of making the EFCC Act and others? The answers given by the Supreme Court to these questions will go a long way in showing how serious the apex court is in asserting its independence and determination to protect the country?s Constitution.

Facts of the matter

The contention of the Plaintiffs in Suit No SC/178/2023 (19 states Vs. Attorney-General of the Federation) is that the Federal Government cannot under any guise control funds appropriated by Houses of Assembly of the Plaintiffs.

The Plaintiffs are also contesting the Constitutionality of the EFCC Act, in the light of the decision of the Supreme Court in the case of Nwobike Vs. Federal Republic of Nigeria, that the EFCC Act was based on a United Nations Convention against corruption, same having not been ratified in line with Section 12 of the 1999 Constitution (as amended).

The Plaintiffs are therefore asking the Supreme Court to nullify the EFCC, ICPC, NFIU and Proceeds of Crime Act, all rooted in United Nations Convention and protocol, having not been ratified by the Houses of Assembly of the Plaintiffs in line with Section 12 of the 1999 Constitution.

As Mohammed Abdulwahab, SAN, who appeared for one of the plaintiffs at the hearing of the suit on October 22, told Justice Uwani Abba-Aji and the panel of Supreme Court Justices, ?we are also challenging the foundation of those laws that created NFIU, EFCC, etc. in order not to create a constitutional crisis.?

Section 12 (1) of the Constitution says: ?No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

?(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Executive Legislative List for the purpose of implementing a treaty.

?(3) A Bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.?

The Supreme Court had ruled in the case of Nwobike Vs. Federal Republic of Nigeria that the EFCC Act is a product of the United Nations Convention against corruption. The position of the Plaintiffs in 19 states Vs. Attorney-General of the Federation is that the EFCC Act arising from the UN Convention, being an item not contained in the exclusive legislative list, recourse should have been had to States as stakeholders in the Federation in line with Section 12 of the 1999 Constitution.

The 1999 Constitution is very clear on the areas the National Assembly has exclusive preserve to make laws, the areas the States have and the areas both the National and State assemblies share legislative powers. The Acts in dispute, being rooted in UN Convention and protocol, do not fall in any of those categories, as a result of which compliance with Section 12 of the 1999 Constitution was a mandatory requirement. Therefore, in the view of the Plaintiffs, failure to comply with Section 12 of the Constitution before the enactment of the Acts was fatal.

On its part, the Defendant to the suit, the Attorney General of the Federation (AGF), did not deny that the Acts were rooted in the United Nations Convention but argued that the concurrence of States of the Federation as stakeholders was not necessary for the validity of the Acts. By this, the Defendant meant that compliance with Section 12 of the 1999 Constitution was not necessary for the validity of the Acts. The Plaintiffs have described this as a strange argument, noting that the Defendant had by that argument curiously implied that the findings of the Supreme Court in Nwobike Vs. Federal Republic of Nigeria that the UN Convention gave birth to the Acts was not relevant.

EFCC not fighting corruption

Truth be told, it is not only the litigating state governments that want the EFCC, in particular, scrapped. There are several others not party to the suit who argue that since its creation, aside from the early stages of the pioneer chairman, Nuhu Ribadu, who presently serves as National Security Adviser (NSA), the EFCC has been known as a tool for political oppression. This, these critics argue, is due to its mode of establishment and it is the reason why corruption has festered rather than abate.

Such critics usually cite the words attributed to Comrade Adams Oshiomhole during his days as National Chairman of the ruling All Progressives Congress (APC). The one-time Governor of Edo State was famously quoted as saying in early 2019 that, ?Once you join APC, all your sins are forgiven.? True to the words of Oshiomhole, a serving Senator of the Federal Republic, it has become a pattern by the anti-graft agencies to abandon investigation and prosecution of political heavyweights who become sacred cows upon their defection to the APC. As a result, several political bigwigs who have established corruption cases are presently holding big appointments under the current administration, with the anti-graft agencies looking the other way. And these are people who do not have immunity of any sort!

At the moment, there are even individuals that their governments are even trying to prosecute but the Federal Government is shielding through the EFCC mainly. A good example is the petition by the Kano State Government against incumbent APC National Chairman, Dr. Abdullahi Ganduje, arising from his governorship of the state, which has not been taken up by the EFCC. That, according to observers, is nothing but double standard. Little wonder why analysts posit that until the laws establishing the agencies are reviewed holistically, Nigerians cannot have real anti-graft agencies but tools in the hands of successive FG administrations to deal with opposition and subdue potential threats.

Political Angle

The alleged pressure and intense lobbying over the last weekend for states to withdraw from the suit has not in any way helped the case of the Defendants. This alleged subterranean pressure has been blamed for the withdrawal from the case by Governor Hyacinth Alia of Benue State, who also suspended his Attorney General, Bemsen Mnyim, over the issue.

According to a concerned Benue citizen, Eneche Onochi, in a piece entitled, ?Alia?s web of deceit?, ?Governor Alia?s public denial of being aware of the EFCC suit on national TV has stunned many, especially his fellow governors who recall him seconding the motion to file the suit at the governor?s forum. This dramatic turn of events has raised eyebrows, with some questioning Alia?s integrity, especially given his background as a priest.

?Alia had initially supported the motion but distanced himself after realizing the Presidency's disapproval. Instead of withdrawing the suit like other states, Alia suspended Attorney General Mnyim, using him as a scapegoat. What's puzzling is that Mnyim has been instrumental to Alia?s governance, possessing in-depth knowledge of the state's affairs. Many wonder why Alia would embarrass Mnyim with suspension, considering his value to the administration.

?Following the Presidency?s signal and infuriated by the court ruling, Alia likely suspended Mnyim due to his inability to secure a favorable outcome. This move has sparked outrage, with many seeing it as a desperate attempt to deflect attention from Alia?s role in the suit. The PDP has accused Alia of presiding over massive frauds, calling for EFCC intervention.?

Using Alia?s case as an example, critics say that the intense lobbying over the last weekend for states to withdraw from the case indicates the kind of pressure that could be on the Supreme Court judges.

However, Nigerians are optimistic that the apex court would rise to the occasion as it did on many occasions in the past.

This hope is strengthened by the inaugural speech of the new Head of the Judiciary, Hon. Justice Kekere-Ekun (GCON), as quoted earlier.

We wish to draw the attention of the Honourable Justices of the Supreme Court to the fact that it is not only the laws setting up the EFCC, ICPC and NFIU that are on trial but the apex court itself is also on trial. Its judgement will go a long way in shaping the public perception of the apex court under the watch of Hon. Justice Kekere-Ekun (GCON).

As we pointed out earlier, the issue in question is a straightforward one ? it is about the law, not politics. It is about the Constitution ? the supreme law of the land, which needs to be defended at all cost for the orderly running of society. It is about the need to avert constitutional crisis by preserving and insulating the Constitution from politics and political manipulations, as Nigeria?s democracy is still fragile and needs not be subjected to any form of constitutional abuse.

It is therefore our opinion that the Honourable Justices of the Supreme Court have only one option before them: Defend the Constitution by applying the law without fear or favour. That is the only way to ensure justice and, more importantly, prevent needless constitutional crisis.

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