EFCC AND THE LIMITS OF PROSECUTORIAL POWER: WHEN ENFORCEMENT BECOMES OVERREACH

The Economic and Financial Crimes Commission (EFCC) remains one of Nigeria’s most important institutions in the fight against corruption and economic crime. Its mandate is undoubtedly critical. However, the importance of its work does not place the Commission above the law. Like every statutory body, the EFCC derives its powers from legislation and must operate within the limits of those powers.

This principle has assumed renewed importance following the recent arraignment of Maryam Isah Shehu and Abubakar Shuraim Abdulhamad before the Federal High Court, Abuja, on allegations of cybercrime, cyberstalking and dissemination of malicious information against the Commission. The EFCC subsequently ordered the withdrawal of the charges citing pleas from the defendants’ parents.

The incident raises a fundamental question: Can the EFCC prosecute every criminal offence simply because the offence involves, concerns, or is directed at the Commission?

The answer, in my respectful view, is no. The EFCC’s powers are not statutorily unlimited.

The EFCC was established principally to investigate and prosecute economic and financial crimes. Its prosecutorial powers, though substantial, are not a licence to assume general criminal jurisdiction over every offence created by Nigerian law.

The Commission may prosecute offences under other statutes where such offences properly fall within or are connected to its statutory mandate. What it cannot legitimately do is treat every criminal offence as an economic or financial crime merely to bring it within its jurisdiction.

This distinction is critical.

The EFCC is not the Nigeria Police Force. The Nigeria Police Force has the broader constitutional and statutory responsibility for the prevention, detection and investigation of crime. Specialised agencies were created because particular categories of criminal conduct require specialised expertise.

If the EFCC assumes jurisdiction over every offence simply because it has investigative capacity or because a matter arose during one of its investigations, the carefully established boundaries between law-enforcement institutions become meaningless.

The Supreme Court’s decision in Dr. Joseph Nwobike, SAN v. Federal Republic of Nigeria, SC/CR/161/2020 provides a powerful warning against such institutional overreach and the associated risk with having convictions overturned only for want on prosecutorial powers

Nwobike, a Senior Advocate of Nigeria, had been convicted on counts relating to an attempt to pervert the course of justice. The EFCC had investigated and prosecuted the case, and the conviction was affirmed at the intermediate appellate level, which is the Court of Appeal.

The Supreme Court ultimately overturned the conviction on the affected counts, holding, among other things, that the EFCC lacked the statutory authority to investigate and prosecute the particular offence of attempting to pervert the course of justice because the offence, in the circumstances of the case, was not an economic and financial crime within the EFCC’s statutory jurisdiction.

The significance of Nwobike’s case is therefore not that the EFCC has no prosecutorial powers. It plainly does. Rather, the decision establishes an equally important proposition: the EFCC’s prosecutorial powers have boundaries.

The Commission cannot enlarge those boundaries simply because it considers a particular prosecution desirable.

The danger of allowing the EFCC to operate as a de facto general police force extends beyond institutional rivalry. It creates uncertainty about which agency is legally competent to investigate and prosecute particular offences. It also encourages forum shopping, where complainants may deliberately seek out the agency perceived to have greater coercive power rather than the agency legally assigned to deal with the alleged offence.

Such an approach undermines the statutory architecture of criminal justice.

The EFCC should therefore cooperate with the Police and other specialised agencies where an investigation uncovers offences outside its mandate. Discovery of an offence does not automatically confer jurisdiction over that offense.

Perhaps the most troubling consequence of prosecutorial overreach is that it can ultimately benefit the very offenders the State seeks to punish.

Imagine an investigation that is otherwise flawless: witnesses are interviewed, financial records obtained, electronic evidence recovered and documentary evidence properly assembled. The prosecution then conducts a lengthy trial and obtains a conviction on the merits.

Years later, on appeal, the court finds that the EFCC lacked jurisdiction to prosecute the particular offence.

The conviction may then collapse—not necessarily because the accused did not commit the act, and not because the evidence was insufficient, but because the wrong statutory agency prosecuted the case and the doctrine of double jeopardy would preclude further prosecution of the same offense.

The Nwobike decision demonstrates that even where the State has invested considerable resources in an investigation and prosecution, a fundamental defect in the EFCC’s jurisdiction cannot be cured by the strength of the evidence.

In practical terms, an offender who might otherwise have been lawfully convicted may escape the consequences of his conduct because the State chose an institution that lacked the legal authority to prosecute him.

Conclusion

The EFCC does not become weaker by respecting the limits of its statutory mandate. On the contrary, it becomes stronger.

The recent withdrawal of the cybercrime charges against Maryam Shehu and Abubakar Abdulhamad should therefore provoke a broader conversation about prosecutorial jurisdiction and institutional boundaries. The withdrawal itself was not a judicial pronouncement that the EFCC lacked jurisdiction in that particular case, but it demonstrates the importance of ensuring that questions of jurisdiction are carefully considered before a suspect is arraigned.

Nigeria needs an EFCC that is bold in investigating economic and financial crimes, but equally disciplined in knowing where its powers end.

The objective of criminal justice should not simply be to secure convictions. It should be to secure lawful, sustainable and constitutionally sound convictions.

Ultimately, the fight against corruption cannot be strengthened by allowing the agency established to enforce the law to disregard the limits imposed by law.

The EFCC must be powerful enough to fight economic crime—but restrained enough to remain within the law.

Kamarudeen O. Abdullahi, Esq. LL.B, B.L.
Associate II, Unit Head, Litigation, Election Petition, and Dispute Resolution (LED)