The lawsuit, which was launched by 15 states contesting the constitutionality of the Nigerian Financial Intelligence Unit (NIFU), the Independent Corrupt Practices and Other Related Offences Commission (ICPC), and the Economic and Financial Crimes Commission (EFCC), was reserved for judgement by the Supreme Court on October 22.

Because the Supreme Court ruled in the case of Nwobike v. Federal Republic of Nigeria that the EFCC Act was based on a United Nations Convention against corruption that had not been ratified in accordance with Section 12 of the 1999 Constitution (as amended), the 15 states are contesting the constitutionality of the EFCC Act.

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Following the adoption of the parties’ argument briefs, a seven-member panel of justices, presided over by Justice Uwani Abba-Aji, adjourned the case for judgement.

Kogi, Ondo, Edo, Oyo, Ogun, Nassarawa, Kebbi, Katsina, Sokoto, Jigawa, Enugu, Plateau, Cross River, Niger, and Bauchi are the states that are involved in the combined suit with the case number SC/CV/178/2023.
Four states—Anambra, Adamawa, Ebonyi, and Benue—withdrew from the lawsuit, despite the fact that 18 states had joined the original Kogi State lawsuit contesting the creation of the anti-graft agency.

As the highest court retains the right to make a ruling, it is crucial to remember that the country, its federating units, and its citizens will benefit from the court considering the merits and arguments of the parties.

The main problem before the S-Court
In their argumentative briefs, the plaintiffs request that the Supreme Court declare the EFCC, ICPC, NFIU, and Proceeds of Crime Act—all based on United Nations conventions and protocols—unconstitutional because their respective Houses of Assembly have not ratified them in accordance with Section 12 of the 1999 Constitution.

“No treaty between the Federation and any other country shall have the force of law except to the extent that any such treaty has been enacted into law by the National Assembly,” states Section 12 (1) of the Constitution.

(2) In order to carry out a treaty, the National Assembly may enact laws for the Federation or any portion of it pertaining to subjects not covered by the Executive Legislative List.

(3) Unless ratified by a majority of all the Federation’s Houses of Assembly, a Bill for an Act of the National Assembly passed in accordance with paragraph (2) of this section will not be transmitted to the President for assent and will not become law.

The 15 states claim that the Supreme Court’s ruling in Nwobike v. Federal Republic of Nigeria established the EFCC Act’s origins in the UN Convention against Corruption.

In accordance with Section 12 of the 1999 Constitution, the states argue that since the EFCC Act resulting from the UN Convention is not on the exclusive legislative list, states as stakeholders in the Federation should have been consulted.

They contend that the 1999 Constitution is quite explicit about the areas in which the states have legislative authority, the areas in which the National Assembly has the sole authority to enact legislation, and the areas in which the National and State Assemblies share legislative authority.

They contend that because the contested Acts are based on UN conventions and protocols, they do not fit within any of those categories, making adherence to Section 12 of the 1999 Constitution a necessary condition.

In accordance with Section 12 of the 1999 Constitution, the states argue that since the EFCC Act resulting from the UN Convention is not on the exclusive legislative list, states as stakeholders in the Federation should have been consulted.

They contend that the 1999 Constitution is quite explicit about the areas in which the states have legislative authority, the areas in which the National Assembly has the sole authority to enact legislation, and the areas in which the National and State Assemblies share legislative authority.

They contend that because the contested Acts are based on UN conventions and protocols, they do not fit within any of those categories, making adherence to Section 12 of the 1999 Constitution a necessary condition.

The states contended that it was fatal to violate Section 12 of the Constitution prior to the acts’ passage.

The states further contended that the Attorney-General of the Federation, the suit’s defendant, did not dispute that the Acts had their roots in the United Nations Convention, but that the Acts’ validity did not require the approval of Federation states acting as stakeholders.

They argued that the AGF was implying that the Acts’ validity did not require adherence to Section 12 of the 1999 Constitution. This is an odd argument because the defendant also oddly suggested that the Supreme Court’s ruling in Nwobike v. Federal Republic of Nigeria, which found that the UN Convention that gave rise to the Acts was irrelevant, was irrelevant.

Concern about inappropriate influence on the S-Court’s decision

They state that because of the suit’s constitutional significance, which could ultimately result in the affected agencies’ exit because their laws are not based on the 1999 Constitution, “it is feared that agents of the Federal Government could be making frantic moves to interfere and put pressure on the Supreme Court not to do the right thing as far as this suit is concerned.”

This is evident from the pressure on certain state governments to drop out of the lawsuit. Nevertheless, new states followed suit. The case will be judged on its merits, even if it involves just one state.

Kogi State filed the original summons, asking for nine reliefs and posing six questions for resolution.

“A declaration that the Federal Government of Nigeria, through the NFIU or any agency of the Federal Government, lacks the power to issue any directive, guideline, advisory, or any instrument however called for the administration and management of funds belonging to Kogi State of Nigeria or any Local Government Area of Kogi State,” counts among them.

The EFCC, NFIU, or any other Federal Government of Nigeria agency is prohibited from conducting investigations, requesting documents, inviting, or arresting individuals in connection with offences pertaining to the administration and management of funds that belong to Kogi State, Nigeria, or any of its Local Government Areas.

AGF’s Rebuttal Analysis
The EFCC Act, ICPC Act, NFIU Act, Proceed of Crime (Recovery and Management), or any anti-corruption Act or statute can be passed into law by the National Assembly without the approval or ratification of the plaintiffs’ Houses of Assembly, according to the AGF’s counter-affidavit, which opposed the lawsuit.

The purpose of the guidelines is to reinforce current procedures to combat money laundering, terrorism financing, and proliferation financing (AML/CFT/CPF), which are made possible by the NFIU Act.

In a case filed by the plaintiffs and other Federation states, who unsuccessfully challenged similar guidelines before the Federal High Court in suit No. FHC/ABJ/CS/563/2019, the Court of Appeal’s ruling in Appeal No. CA/ABJ/CV/822/2022, delivered on May 21, 2024, finally resolved the question of the NFIU’s authority to issue guidelines that affect the states.

The Court of Appeal upheld the trial Federal High Court’s ruling against all of the plaintiffs in that case, including the current plaintiffs who have not filed an appeal. The plaintiffs’ claims do not align with the NFIU’s guidelines, which were established to reduce corruption and the threat of money laundering and terrorism financing in Nigeria and to increase transparency in all areas of the Nigerian economy in accordance with international best practices.

The guarantee of CJN
As it has done numerous times in the past, Nigerians are hopeful that the highest court will step up to the plate in this case.

“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,” wrote Justice Kudirat Kekere-Ekun in her inaugural speech, reinforcing this hope. For example, we are not influenced by outside factors when making decisions. As the third branch of government, the judiciary must have positive working ties with the legislative and executive branches, but this should not be interpreted as subordination.

In the Nigerian judiciary, a new era and dawn have begun. I want to reassure my fellow Nigerians that we will be doing everything in our power to enhance the public’s opinion of the Nigerian judiciary.

A number of things have contributed to the judiciary’s bad reputation over time. To reverse this narrative and make the judiciary a source of pride for all Nigerians is our goal, nevertheless. Everything suffers when a country’s legal compass fails, including public and international perception.

A judicial watchdog supports the suit.

The governors were on track to seek constitutional compliance, state sovereignty, and accountability from the EFCC and other anti-graft agencies, according to Real Dennis, Co-National Convener of Judiciary Watchdogs, a group of attorneys from the 36 states in the federation, who backed the states’ lawsuit.

According to the organisation, establishing a solid foundation would aid in the battle against corruption because current agencies, especially the EFCC, are supposedly only engaged in proxy conflicts for past presidents.

Dennis, speaking for the organisation, contended that Section 12 of the 1999 Constitution requires the National Assembly to ratify the UN Convention against Corruption.