REFLECTIONS ON THE RELATIONSHIP BETWEEN INVESTIGATIVE AND PROSECUTORIAL POWERS OF ANTI-GRAFT AGENCIES

At the 2016 Annual General Conference of the NBA, the newly elected NBA President Abubakar Mahmood, in his personal capacity, advocated that the EFCC should be stripped of its prosecutorial powers. The EFCC leadership has angrily reacted to that proposal and resorted to a generalized attack against lawyers, calling them “rogues and vultures”.

Leaving aside the undesirable intolerance and personal attacks against the NBA president and lawyers by the EFCC leadership, the real issue thrown up by the NBA President is: what should be the desired architecture of the relationship between

 the power to investigate and the power to prosecute.

While I concede that the NBA President has the right to advocate a review of any policy or practice, whether or not the EFCC should be stripped of its prosecutorial powers should be a product of scientific empirical studies or research on how to strengthen the fight against corruption or strengthen the EFCC and/or any of the anti-graft agencies whilst curtailing their excesses, which are publicly acknowledged.

We tend to retain or change public policies in this country without ensuring such decisions are evidenced based by conducting scientific research, based on an analysis of prior experiences, opinions and perspectives of broad sections of members of the society as well as  professionals who are directly involved. 

On an international basis, two major approaches define the relationship between criminal investigation and prosecution. These are the Legality principle (in the inquisitorial systems in countries such as in Germany, Italy, Japan, etc) and the Opportunity Principle (in the adversarial common law tradition in countries such as England & Wales, Ireland, Northern Ireland, Australia, New Zealand, Canada, etc). 

Under the Legality principle associated with the Inquisitorial system, the Prosecutor is separate from the investigator but the Prosecutor is in control and in fact directs investigation, including pre-trial investigation.  In principle, once there is adequate evidence of commission of a crime by a suspect, the person has to be brought to court for prosecution. 

Under the Opportunity principle, which characterizes the policy and practice in the common law tradition, prosecutors are separate from investigators but they offer advice to the police investigators. Under this system, the police have discretionary powers in deciding whether or not to prosecute, on the consideration of factors such as public interests, the gravity of the offence, availability of resources to prosecute, etc.  

The Nigerian experience tends to be an admixture of the two international practices discussed above. While the Attorney General of the Federation under section 174(1) of the 1999 Constitution (and section 211(1) in the case of Attorney General of the State) is vested with the general constitutional power to institute and undertake, take over and continue and discontinue criminal proceedings against any person and in any court of law, other than court-martial. However, institutions such as the Nigeria Police Force, ICPC and EFCC combine both investigative and prosecutorial powers, subject to the constitutional powers of the Attorney General.

As far as the EFCC is concerned, Sections 13(1)(c) and 13 (2)(a) of the EFCC Act vest investigative and prosecutorial powers in the EFCC, respectively. Whether these sections should be reviewed or not should be a function of an understanding of the international policies and experiences, subjected to the lessons of national practical experiences, noting the lessons from both the international and national frameworks.  

While the law should not be changed simply because the NBA President calls for it, the objection of the EFCC leadership is unacceptable because the opposition to the NBA president's proposal is simply based on "this is what the law says; this is how we have been doing it". The EFCC objection is simply rooted in the conservative tendency of human beings to resist changes and preserve existing areas of individual domain. At the same time, I advocate evidence-based changes which can be obtained if the right people who are devoted to looking for the best for the society (rather than satisfying the expectations of the government in power) are commissioned to carry out scientific empirical studies on the national experiences so far. 

There are valid arguments for and against concentrating investigative and prosecutorial powers in an agency. There arehigher likelihoods of abuse of power and compromise where both powers are vested in an agency. But where the investigative agency is aware that another agency would subject the investigation work to an independent review before deciding to prosecute or not to prosecute, the investigating agency may be more cautious. At the same time, where the powers to investigate and prosecute are separate and vested in two agencies, collaboration between the investigator and the prosecutor to establish the key ingredients of the offence in question (to ensure successful prosecution) may suffer.

Whatever may be the pros and cons, evidence-based approach should be the determinant of the ultimate decision to take, either on the macro issue of the relationship between investigative and prosecutorial powers generally or as it may affect particular anti-graft agencies.