Four senior advocates of Nigeria (SANs) yesterday said the Economic and Financial Crimes Commission (EFCC) had no constitutional powers to audit state government finances.
Chief Akintola Adeniyi (SAN), Mr. Yunus Ustar (SAN), Emeka Ngige (SAN) and Chris Uche (SAN) who spoke to LEADERSHIP WEEKEND, agreed unanimously in separate interviews that although a state governor could be asked to account for the security votes allocations allotted to him, but the powers to audit or probe is not within the ambit of the EFCC.
They all described a letter by the anti-graft commission to the Delta State government about five months back demanding some documents to audit its finances between May 1999 and June 2007 as ultravires.
It could be recalled that the commission had maintained clearly that the auditing was meant to ascertain whether former governor of the state, James Ibori and some of his principal staff had misappropriated the state funds as alleged by several petitions it received.
They had demanded documents including security vote allocations and details of their utilizations from May 29, 1999 to June 6, 2007 and all contracts or projects awarded which were above N50 million.
They had also, through a letter dated June 6, 2007 to the present secretary Delta State government, requested details of projects executed through irrevocable standing order payments from May 1999 to June 2007, among others.
But through the office of the Attorney-general, Delta State instituted a suit before a High Court sitting in Benin where it challenged the powers of the EFCC to audit its account.
Delta government secured an exparte order from the court restraining the commission from taking its action pending when the matter had been determined.
The federal government and the EFCC yesterday succeeded in their prayers before the court asking it to decline jurisdiction to entertain the matter after they had earlier treated the court pronouncement with disdain.
To this effect, the Delta State government has vowed to go on appeal.
The senior advocate of Nigeria who spoke to LEADERSHIP WEEKEND yesterday said under a federal system of government, it is the state House of Assembly that can lay hands on those documents, otherwise the EFCC would have ended up auditing the Delta State government accounts.
Akintola Adeniyi (SAN) said “it is my view that EFCC pries into affairs that it has no legal powers to handle. On security votes allocation for instance, EFCC can’t ask questions on its expenditure.
“The EFCC Act which created the commission is a creation of the National Assembly. That Act cannot override the provisions of the 1999 constitution.
“By virtue of the provisions of section 162 of the constitution if EFCC oversteps its bounds, it behoves on the state government to go to court. But the problem is that most of the state government officials are corrupt.
“And to that effect, the public has not even appreciated the fact that EFCC is overstepping its bounds because they see some of these corrupt officials everyday and the kind of life they live.
Those of them whose hands are clean, can challenge EFCC and I think that is the reason why the state government is going to court.
Chief Chris Uche (SAN) also toed Adeniyi’s line of thought when he said “EFCC has no constitutional or statutory authority to oversee or audit the finances of a state government.”
He said “it is incompatible with the principle of federalism and what the EFCC is doing by its demand for documents to audit Delta State government account is ultra vires the commission’s power. It is unlawful and it should be resisted.”
Another eminent member of the inner bar, Yunus Ustaz (SAN), said the EFCC is embarking on a voyage that is dangerous for the country’s federalism.
He said “EFCC is an agency of the federal government. There is a clear separation of powers in the constitution. The issue of security votes is within the powers of the auditor general of the state. It is not for the EFCC to investigate, not even for the federal government.
“The federal government cannot police the affairs of the state government. That is left for the state House of Assembly. The federal government can’t be a supervisory agent for the state government. That is why we run federalism.
“What we are saying is that you cannot jettison the constitution. The constitution is very clear on this issue. We are not running a unitary system of government.
On his own part, Emeka Ngige (SAN) described EFCC’s demand for documents containing security vote allocations as mischievous, just as he said security vote is a sub-head in a budget where expenditure which borders on security of a state is contained.
He said “anything affecting the security of the nation or a state is not something you start accounting for by showing whom you gave what.
“Security vote is conventionally, traditionally and even legally not accounted for. So when the police or operatives of the EFCC say they are investigating a governor on how he expends his security votes they are being mischievous.