A Professor of Law and legal practitioner, Anthony Agbazuere, has described President Bola Tinubu’s directive to the Economic and Financial Crimes Commission (EFCC) to unfreeze the Osun State Government’s account as one of the best decisions of his presidency, arguing that the Commission is part of the executive arm and therefore subject to the executive powers vested in the President by the Constitution.
Agbazuere spoke on Arise Television’s News Night, where he was asked whether the President’s intervention, coming barely 48 hours after the restriction and in the face of the Commission’s insistence that it acted on a court order, amounted to executive overreach.
The law teacher opened by attributing criticism of the directive to a deficit of information.
“I must say very clearly that one of the most important things anybody would require in life is knowledge,” he said. “Those who feel that the President did not do the proper thing, maybe [it is] because of the fact that they don’t know.”
He then stated his position. “This action of President Tinubu is one of the best things that he has done, that would mark him out as a real democrat for tomorrow. Already people were thinking that he was just trying to push opposition down and all of that. So with this, it changes the narrative.”
Agbazuere grounded his argument in the constitutional location of the Commission.
“In the first place, for those who do not know, the EFCC belongs to the executive arm of government. And Section 5 of the Nigerian Constitution 1999, as amended, vests executive powers on the President,” he said. “Everything everybody is doing is for the President. He can act through any other person.”
He pointed to the appointment provisions in the enabling statute. “Even the appointment of the EFCC chairman and the other members of the board, even in the EFCC Act, Sections 2(3) and 3 removal and appointment are all to be done by the President, though of course with the ratification of the Senate.”
He described the office as one of wide reach. “The powers of the President are enormous. The President even has powers to alter any law. Section 315 of the Nigerian Constitution empowers the President to modify any existing law to conform with the Constitution. If there is any law made by the National Assembly today and it is existing and it does not conform with the Constitution… that is why you hear executive orders, things like that, all over democracies all over the world.”
Asked whether an executive order is superior to the Constitution, he answered: “No, that’s a grand norm. It must be in conformity with, not superior to [it]. And any other law, even if in the process of making his executive order it comes in conflict with the Constitution, Section 1(3) of the Constitution of Nigeria will apply. It becomes inconsistent, and shall to the extent of its inconsistency become null and void.”
Put to him that the President had said actions taken by federal institutions are attributed to him regardless of whether he had prior knowledge of them, Agbazuere said the two positions sit together.
“In the first place, the EFCC is a distinct agency that can operate; if they are operating, fine. But they are all subservient to the President,” he said. “And that’s why he’s saying that people are thinking that he has a hand — unless he does something. And that’s why he came rightly, at the right time, and he also said the timing of whatever the EFCC was doing was wrong.”
He added that nothing was lost by waiting. “Even if the EFCC wanted [to act], the government is not running away; the [tenure] is not yet over. They could wait. Doing it at this time, arresting [officials] of that state, doing this now the whole world would think that the President is really [behind it]. Even I was saying, what is going on? That he’s not a democrat. So he has really changed the narrative, has really created a better picture for himself. What he has done is right.”
Confronted with the argument that the Attorney-General of the Federation, rather than the President personally, was better placed to reverse the action, Agbazuere disagreed.
“No, no, no. The Attorney-General’s powers have to do more with prosecution,” he said. “Of course, even he could have said, bring back this matter. But even that Attorney General is also subservient to the President. All of them are his appointees, and all the powers, like I said, [are] in Section 5. It is stated there copiously that executive powers are vested in the President. So whatever anybody is doing, he could exercise those functions through his deputy the Vice President his ministers, and any other appointee.”
Asked about the wider implications, and whether a precedent was being set for future presidents to step into the work of statutory agencies, he rejected the framing.
“No. I am here now to paint the picture. It’s not interference at all. He’s doing his work. Now, there is what we call checks and balances in everything,” he said.
He drew an analogy from the prerogative of mercy. “Do you know that even when the Supreme Court, [as] the highest [court] of the land, has sentenced somebody to death, the President if it’s a federal law can say, I pardon you, under Section 175 of the Constitution. So you now see that these things are not tight-fisted. There are checks and balances, and that’s what the President has done.”
He characterised what the Commission had attempted as the setting of a very bad precedent, adding that timing was decisive. “Like he also said, if it was after the election, or say six months or three months before the election, it would have been a different thing.”
Asked whether the damage to public perception of the democracy had not already been done, Agbazuere said no, attributing the episode to overzealousness down the line.
“You see, some people could be overzealous. I have been in government. There are some subordinates that could be overzealous. But with the President’s action, it’s clear he didn’t know about it.”
He said such actions can be taken without the knowledge of the head of an agency. “Ordinarily, the EFCC they have powers to do certain things. Even the chairman may not even know what is going on. The thing is structured [in] departments. That is the system we run. Even like the police: a department of the police could put a post-no-debit on your account without the Inspector-General knowing.”
Asked whether subordinates were reading a body language they believed would impress the boss, he agreed. “You’re very correct. That is why I said overzealousness.”
On the suit filed by the Osun State Government, the professor said the intervention had overtaken it. “Now that the President has intervened, they should withdraw that matter… because the President said stop.”
Asked whether that ends the matter notwithstanding the gravity of the allegations, he replied: “No, I don’t even see any matter. It’s their money they are spending. You don’t tell them how they will spend their money. If they want to do a road and it is 20 billion, what’s your business? It’s not their business, for God’s sake. Look at how much is being spent in Abuja for roads and all of that, and even some other states. It’s not their business.”
He said the proper time for scrutiny is after the tenure. “Let them wait till the end of the tenure of the government. If they feel the money went into wrong hands, that’s where they will come in. They are not the ones to judge whether this money is too much or not. It’s their money. It’s not their [the Commission’s] money.”
Earlier in the interview he had made a similar point about federal spending, noting that where a state government chooses to pay for its projects is not a matter for the Commission’s judgment.
Asked finally how the Commission can be insulated from politicisation, Agbazuere said the answer lies beyond the agency.
“Our society in Nigeria requires a massive, comprehensive reorientation. People need to be reoriented. So it’s not just the EFCC. Every facet you see people making mistakes and then that is it. So we need orientation in this country, more orientation and more patriotism.”
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