EFCC: From weak anti-graft trials to prosecutorial diligence of naira abusers

The Economic and Financial Crimes Commission (EFCC) has the primary remit of combating economic and financial crimes, with a myriad of long-drawn-out cases in several courts. But its newfound fervour and ‘power’ to prosecute relatively minor offences of naira abuse has become a source of concern for stakeholders that see the important agency as derailing, JOSEPH ONYEKWERE reports.

The Economic and Financial Crimes Commission (EFCC) derives its legitimacy from the EFCC Act of 2004, which empowers it to investigate and prosecute financial crimes. Section 1 of the EFCC Act designates the commission as the Financial Intelligence Unit (FIU) in Nigeria, responsible for coordinating institutions involved in the fight against money laundering and enforcing laws related to economic and financial crimes.

Sections 6 and 7 further elaborate on the commission’s powers to investigate all financial crimes and enforce provisions of the Money Laundering Act.

Despite the clear mandate provided by the EFCC Act, there has been controversy regarding the commission’s power to prosecute those who abuse the naira. Some legal experts, including the former Chairman of the National Human Rights Commission (NHRC), Prof. Chidi Odinkalu, have argued that the EFCC lacks the jurisdiction to prosecute naira abuse cases. He contended that such offences do not fall within the commission’s prosecutorial purview as defined by its establishing law.

On the other hand, some lawyers assert that the EFCC does possess the necessary powers to prosecute naira abuse under the Central Bank of Nigeria (CBN) Act, particularly Section 21, which prohibits the spraying of naira notes and other legal tender.

They argued that the EFCC’s mandate to enforce all laws dealing with economic and financial crimes in Nigeria grants it the authority to address violations under the CBN Act.

This debate is fueled by the recent arrest, detention, trial, conviction, and sentencing of a cross-dresser, Idris Okuneye Olanrewaju, better known as Bobrisky, by the EFCC for currency abuse. The agency promptly followed Bobrisky’s imprisonment, by also arraigning a celebrity barman, Pascal Okechukwu, popularly known as Cubana Chief Priest.

These cases have attracted public attention and raised questions about the commission’s approach to enforcing laws against currency abuse.
Some view the EFCC’s actions as a necessary step to uphold the sanctity of the national currency, while others perceive it as an overreach of its powers.

Managing Partner, Tetralex Legal & Advisory, Dr Jerome Okoro, said one of the crucial technical questions of law raised by the prosecution and conviction of Bobrisky is whether that matter falls within the prosecutorial mandate of the EFCC.

“I subscribe to the view that it does not. This is because Section 46 of the EFCC Act sets the ambit of crimes, which the Commission can prosecute namely, ‘economic and financial crimes’ which are non-violent criminal and illicit activity committed with the objectives of earning wealth illegally, either individually or in a group or organised manner, thereby violating existing legislation governing the economic activities of government and its administration,” he said.

The section, he said, includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting, and any form of corrupt malpractices, illegal arms deals, smuggling, human trafficking, and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices, including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic waste and prohibited goods, etc.

According to Okoro, those captured the constituent elements of a crime that can be classified as an “economic and financial crime.”

He reiterated that such crimes must be non-violent in nature, an illicit activity committed with the objective of earning wealth illegally, and violating existing legislation governing the economic activities of the government and its administration.

He then argued that the section by using ‘means’ instead of ‘includes’ has restricted economic and financial crimes to crimes bearing the triplet features.

“Some have commented that since the section proceeded with the word, ‘includes’ and then mentioned particular crimes, ending the list with ‘etc,’ it accommodates other crimes not mentioned in that section. Yes, but any crime, whether specifically mentioned in that section or not, must bear the whole three features already encircled by the opening part of that section to be accommodated among economic and financial crimes.

“Those three elements must be present. The crime of currency abuse under the entire wide gamut of Section 21 of the CBN Act does not bear the triplet elements of economic and financial crimes distilled from Section 46 of the EFCC Act. So, currency abuse does not fall under the prosecutorial powers of the EFCC,” he argued.

On the public outcry over the perceived selective justice in Bobrisky’s case, he defended the agency.

According to him, being singled out for prosecution cannot be a defence for any crime, adding that in most criminal cases with multiple offenders, it is common for the charge to say, “…with others still at large.” That, he said, means there are others yet to be brought to book, but the law cannot wait until they are all rounded up.

His words: “In this case of currency abuse, it is unrealistic to prosecute all suspects, even among the political, wealthy, and popular classes. The core objective of Section 21 of the CBN Act is to preserve and revere the Nigerian currency, and the faster, easier way to do that would be by mass awareness and orientation that currency abuse is a crime, which many still have not realised, even at this point.”

Lawyer and human rights activist, Adaobi Egboka, insisted that the arrest, speedy trial, and conviction of Bobrisky reveals the hypocrisy and abuse of government institutions in the country. Much, she said, has been said about prioritising the case over all the other economic and financial crimes that are plaguing the country.

“The main issue, among others, is that the punishment highlights one of the primary reasons for the overcrowded and highly stretched correctional centres in the country. As an advocate for the reform of our administration of the criminal justice system, I believe that the purpose of punishment in a trial should be to achieve reformation and a correctional impact on the offender.

“Bobrisky is a first-time offender in this case, and the Act provides alternatives to custodial sentencing. Section 21 of the CBN Act, 2007, makes offenders liable to imprisonment for a term not less than six months, or for a fine of not less than N50,000, or both fine and imprisonment.

“In this case, the judicious exercise of discretion could have been a fine. Our correctional centres are overcrowded, in deplorable conditions, and require reform, not to mention the economic implications for a country experiencing a financial crisis. Our correctional centres will remain congested if our judges keep applying custodial sentences,” she declared.

Egboka wondered if the EFCC could use the same efficiency and swiftness it displayed in the recent arrest and prosecution to tackle other high-profile cases of economic and financial crimes that have been unresolved for years. The EFCC’s actions in the coming months, she said, would be crucial in reassuring Nigerians that its prosecution is not biased and that the same laws apply to all citizens, regardless of their status.

Lagos-based lawyer, Emmanuel Jonathan believes that since the CBN as an apex financial body does not have the prosecutorial powers to bring offenders who have breached the Act to Court, it, out of necessity, turns to the EFCC for prosecution.

He, however, stressed that the offence of abuse of the naira seems to be out of the mandate of the EFCC to prosecute, noting that the best thing that the CBN would have done would have been for it to resort to the police in such a matter since it has wide prosecutorial powers and not the EFCC.

On the sentencing of Bobrisky, he argued that the judge did not consider the whole circumstances of the case before delivering its sentence, as a lenient sentence would have tended more towards justice because Bobrisky was a first offender, and pleaded guilty.

Also, he contended that the seemingly discriminatory and selective prosecution of persons responsible for this same offence, brings the whole sentencing into the limelight and begs the question of whether it was solely about naira spraying, or something else.

He emphasised that the relevant provisions of the CBN Act 2007, which criminalises the act of spraying the naira support his view. Section 21(1) of the CBN Act, he noted, provides that: “A person who tampers with a coin, or note issued by the bank is guilty of any offence and shall on conviction be liable to imprisonment for a term not less than six months or to a fine not less than N50,000 or both such fine and imprisonment.”

Then subsection 3, he pointed out, provides: “For the avoidance of doubt, spraying of, dancing or matching on the naira, or any note issued by the bank during social occasions, or otherwise howsoever shall constitute an abuse and defacing of the naira or such note and shall be punishable under sub-section 1 of this section.”

Finally, subsection 5 (ii) defines spraying to include “adorning, decorating or spraying anything or any person or any part of any person or the person of another with naira notes or coins similarly regardless of the amount, occasion or intent.”

Jonathan argued that the court failed to holistically consider the provision of section 21 (1) during sentencing. Certain offences by their prohibiting Acts, he explained, do not allow for discretion like the CBN Act that left the issue of sentencing open-ended.

He stressed that the court had discretion to either fine the convict N50,000 or send him to prison with or without payment of such fine. “The Court could have fined him the sum of N50,000 or more, but not committing him to six months without the option of a fine.

“Indeed, this will deviate from the spirit and intendment of the drafters of the Act. The drafters understood that certain circumstances would crop up like this, where a fine would be more accommodating. While not making excuses for Bobrisky, it is clear that first, he is a first-time offender, a fact that weighs seriously in sentencing, and second, he genuinely admitted that he had committed a crime, had pleaded to be given a second chance wherein he was going to educate his several million fans, and finally that he was never going to repeat the offense.

“These should have persuaded the Court to temper justice with mercy. But the body language of the Court showed that it had vowed to use the case as a deterrence to other would-be offenders, and the fact that he stands in the unique position of being the first celebrity, at least as far as I am aware, who is being convicted for this offence, makes the sentencing unfortunate.

“Also, it is not news that other popular Nigerians have been caught in the very act, including a minister in the present government, the son of a prominent former security chief, etc, who were neither invited by the EFCC nor any other prosecuting agency despite the virality with which their videos circulated. All of these suggest a vindictive and selective approach.

“With the commencement of the trial of Cubana Chief Priest, it seems that the Federal Government is serious about taking on the issue of currency spraying. I feel this is part of a collective effort to boost the image of the naira, as part of a grand scheme to ensure the economic value of the naira,” he stated.

When contacted, the EFCC’s spokesman, Dele Oyewale said the Commission is the coordinating agency for the enforcement of all laws relating to economic and financial crimes. “Section 21(3) of the CBN Act 2007 criminalises naira abuse. That is the law that the Commission is enforcing,” he declared.

While the EFCC Act provides a broad framework for the commission to tackle financial crimes, the specific authority to prosecute currency abuse under the CBN Act is still debated. Ultimately, the resolution of this debate may require judicial interpretation or legislative intervention that will clearly define the boundaries of the EFCC’s prosecutorial powers.