HEDA tells Malami to obey court order on scrapping regulations that reduce EFCC, ICPC powers

AGF Malami

The Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami, has been asked  to obey subsisting Court Order that scrapped the Asset Tracing and Management Regulations put in place by the Minister.

The regulation was put in place in 2019 to checkmate anti-graft agencies in the management of recovered assets and proceeds of crime. However, few months ago, a Federal High Court declared the regulation null and void.

In a statement on Sunday, Nigeria’s leading anti-corruption group, Human and Environmental Development Agenda (HEDA Resource Centre) said the Minister of Justice has the legal obligation to scrap the regulation. It said the rule undermines optimum performance of key anti-corruption institutions, the Economic and Financial Crimes Commission, (EFCC) and the Independent Corrupt Practices and Other Related Offenses Commission (ICPC).

The statement signed by the group’s Chairman, Olanrewaju Suraju, asked the Minister of Justice to set aside the rule.

HEDA said recent judgement of a Federal High Court confirms public fears that the regulation will not promote transparency in Nigeria. The learned Judge had said: “In my view, these provisions are clear as to the powers of the applicant, the EFCC to commence this action. Consequently, I consider and hold that paragraph 5 of the assets tracing and management regulations 2019 are good for being inconsistent with Section 17 (1) of the advance fee fraud and other fraud related offences.”

The Judge said relying on the asset tracing recovery and management regulations 2019 was wrong. He submitted that the EFCC is a distinct office from that of the Attorney General of the Federation. This action is therefore predicated on a faulty pedestal.

HEDA said: “We make bold to state that these Regulation trespasses into the scope of powers vested in National Assembly and amounts to disregarding the supremacy of the Ground Norm. The powers as stated in the Commencement Clause of the Regulations cannot override the powers vested in the LEAs and ACAs being Acts of the National Assembly.

“Assets Tracing, Recovery and Management Regulations, 2019 is merely a duplicity of laws and adds no solution, harmony or progress but further rigidity and dilemma to the implementation of the functions of the LEAs and the ACAs by prescribing sanctions for non-compliance as seen in Section 14 of the Assets Tracing, Recovery and Management Regulations, 2019.

“It is trite law that the Act of the National Assembly supersedes any regulation by the executive.”

HEDA had in December 2019 demanded for the immediate cancelation and nullification of the Asset Tracing, Recovery and Management Regulations, 2019 within 14 days.

It said though the objective is to prescribe procedures for all Law Enforcement Agencies (LEAs) and Anti-Corruption Agencies (ACAs) to ensure effective coordination of the investigation of illegally acquired assets and proceeds of crime, but that in the past one year the regulation has proved to be counterproductive.

HEDA said the order was to aid tracing and attachment of assets and proceeds of crime, the seizure and disposal of assets and proceeds of crime, and the recovery of stolen assets but that abundance evidence shows that the motive has been defeated through parochial political manipulations, adding that the EFCC and ICPC have enough laws to deal with the issues raised in the new regulation.

The coalition said: “We hold the stance with respect to the Asset Tracing, Recovery and Management Regulations 2019 that it is overbearing and outreaching and will most certainly result in clashes between the office of the Attorney General of the Federation and the powers reposed in the LEAs and the ACAs.” It observed that the National Assembly enacted laws for the smooth operation of the LEAs and ACAs and that the regulation put in place by the Ministry of Justice creates duplicity of functions and portends a great danger to the independence of the anti-corruption commissions.

The rights group said that the Economic and Financial Crimes Commission (EFCC) Act 2004 and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act 2000 made for the proper procedures for the custody of interim and final forfeiture and the custody of the forfeited properties.

HEDA cited Section 30, 31 (1-3) of the EFCC Act which makes for the procedure for the proper disposal of the seized assets particularly Section 31 (2) which provides that upon receipt of the final order, the Secretary of the Commission shall take steps to dispose of the property concerned by sale or otherwise and where the property is sold, the proceeds thereof shall be paid into the Consolidated Revenue Fund of the Federation.  He refers also to Section 37, 38 and 45 of the ICPC Act provides gives the Chairman and Officers of the Commission the powers to seize assets.

It observed that Section 35 -37 of the Trafficking in Persons (Prohibition) Law and Enforcement and Administration Act, 2015 states that whereupon the receipt of a final order, a person is convicted the Director-General shall take steps to dispose of the property and that the proceeds shall be paid into the Victims of Trafficking Trust Fund.

HEDA said the 2019 regulation was unnecessary considering Section 90-91 of the Immigration Act which states that upon conviction of an offense under the Act or under any relevant Law, the Nigerian Immigration Service shall apply to the Court for a final order of forfeiture and that cash assets be forfeited to the Federal Government Consolidated Revenue Account.

The coalition said: “It is important to note that each LEAs and ACAs has in their enabling statutes the control and management of assets seized.”

It said the National Drug Law Enforcement Agency Act, 1989 in Section 38 also states that the Secretary to the Agency is saddled with the responsibility of supervising the auction of any forfeited or seized property and the proceeds are to be paid into the Consolidated Revenue Account.

HEDA said: “It is quite clear that the legislators factored in the appropriate channel for the final disposal of forfeited assets. The provisions of Sections 5 – 12 of the Assets Tracing, Recovery and Management Regulations, 2019 completely and outrightly transfers the powers vested in the LEAs and ACAs to the Attorney General of the Federation.”

Similarly, Section 3(4) of the ICPC Act 2000 also states that the ICPC shall in the discharge of its functions under the Act, not be subject to the discretion or control of any other person or authority. The commencement clause of the Regulations states that the powers to make the Regulations were solely derived from the enabling statutes of the LEAs and ACAs.

“We must humbly hold that these powers do not override the provisions of the enabling statutes establishing the powers of the LEAs and ACAs and the powers referred to in the Commencement Clause of the Regulations merely presupposes discretion as against the mandatory powers vested in the LEAs and ACAs as stated above,” HEDA said.

Further, the group said enabling statutes of the LEAs and ACAs vests in them the powers to carry out their activities and these enabling statutes are made by the National Assembly vested with sole powers to make laws according to Section 4 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and Section 1 of the Constitution declares the supremacy of the Constitution.

HEDA said the regulations are ultra vires and a complete derailing from the powers vested in the office of the Attorney General of the Federation as in Section 174 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended).

The position of HEDA Resource Centre was legally confirmed by Justice R. M. Aikawa of the Federal High Court in Lagos. The Judge in the case of Bukola Saraki and Carlisle Properties & Investment Ltd against the Federal Government, decided on 16th July, 2020, declared the Attorney General’s regulation null and void and inconsistent with provisions of the law.