Unlawfulness of the EFCC Order on Bankers Declaration of Assets.

Unlawfulness of the EFCC Order on Bankers Declaration of Assets. Daily Law Tips (Tip 771) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

 Introduction: 

 On 16 March 2021, the Economic and Financial Crimes Commission (EFCC) announced that all employees of financial institutions (including banks) in Nigeria must declare their assets before 1^st June 2021 in line with the provisions of the Bank Employees, etc. (Declaration of Assets) Act,1986. This order is subsequently referred to in this work as the “EFCC Order”.  Ahead of the 1st June 2021 deadline of EFCC, many stakeholders have opposed the “EFCC Order”, including the Association of Senior Staff for Banks, Insurance and other Financial Institutions (ASSBIFI). The list also has the National Union of Banks, Insurance and Financial Institutions Employees (NUBIFE) and Chief Dele Momodu (Business Mogul and Journalist). A version of this work was earlier published on ThisDay Newspaper (a national daily) on 6 April 2021, under the title “Legality Of The EFCC Order on Bank Employees Declaration of Assets” on its hard copy at page 8 and online copy at <https://www.thisdaylive.com/index.php/2021/04/06/legality-of-the-efcc-order-on-bank-employees-declaration-of-assets/amp/>.

Publication Reactions to the “EFCC Order”:

1.1 According to a report by the Business Post, “I can tell you that this statement by the EFCC chairman is not going down well with a lot of bank executives. “I can also tell you for a fact that some of them are making efforts to clean up their tracks and possibly talk to those in power to extend the June 1 deadline. “To them, the timeframe is too short and they believe it should be moved forward except the EFCC chair wants to use this as a vendetta,” one of the sources told this newspaper.”

1.2 The Association of Senior Staff for Banks, Insurance and other Financial Institutions (ASSBIFI) and the National Union of Banks, Insurance and Financial Institutions Employees (NUBIFE) have been reported to be opposing the EFCC order. The President of ASSBIFI (Comrade Oyinkansola Olasanoye) was reported to have said, “EFCC has the right to investigate the top management and board of directors of banks but ordinary workers who are diligently carrying out their responsibilities as professionals should be exempted.”

1.3 The Deputy General Secretary of the NUBIFE (Sola Boderin) expressed his concerns and reiterated that, “Another thing is that they said bank workers. Now, who are the bank workers? They should go to CBN (Central Bank of Nigeria) and ask who are the bank workers? The CBN has said that about 90 per cent of those working in banks are not bank workers. So, if you are saying tellers, marketers and others are not bank workers, then fine. In that case, they (EFCC) should focus on the MDs (managing directors) of banks.” 

1.4 Among the individual Nigerians that have condemned the EFCC order is Chief Dele Momodu (a popular journalist and businessman). Dele believes that private sector should not file assets declaration. He has been reported to have said; “Are we in a military regime? Why not start with government agencies and politicians? Banks belong largely to the private sector.” 

Assessment of the “EFCC Order”:

1.1 Nigeria has the Bank Employees, etc. (Declaration of Assets) Act (“BEDA Act”) which was made since 26 September 1986 (thirty-five years ago), it is lawful, valid and operational in all parts of Nigeria. The “BEDA Act” does not need an “EFCC Order” before any person can be investigated or prosecuted under the “BEDA Act”. Hence, the “EFCC Order” is a mere friendly “NOTICE” (reminder) of the existence of the “BEDA Act”. However, such reminder is unknown to law and the “BEDA Act”, it lacks the force of law, it is of no legal effect and a mere Noise. 

1.2 The “BEDA Act” mandates all employees and former employees of the Nigeria Customs Service, the Central Bank of Nigeria, Banks, Bureau de Change, Cryptocurrencies operators and all other financial institutions in Nigeria or in foreign branches to declare their assets annually and to continue to do so even 2 years after termination of the employment. It also, allows the President of Nigeria to add more persons to the list of persons to be bound by the law to declare their assets. 

1.3 At the time of this publication, the writer is not aware of any Federal Gazette stating a deadline for the mandatory declaration of assets by employees of financial institutions from the Federal Government of Nigeria on the “BEDA Act”. Rather, the public media is awash with reports that the chairman of the EFCC, made a public comment, ordering the mandatory declaration of assets by employees of financial institutions in line with the “BEDA Act”. 

1.4 Generally, Government orders are to be made by instruments published on the Federal Gazette. Specifically, sections 12 (2) and 13 of the “BEDA Act” permits only the President of Nigeria to make directions and regulations for the “BEDA Act”. Obviously, the 1986 “BEDA Act” never mentioned the office of the Chairman of the EFCC as the person to make any such directions. It is a power given to the President of Nigeria alone and there is no room for such powers to be delegated to another person. 

1.5 In exercise of delegated law-making powers (quasi-legislative powers), the executive arms of government (like, the President, Federal Ministers, Heads of Federal Parastatals, Governors, State Commissioners and Heads of State Parastatals) make Executive Orders, Regulations and Rules for effective and efficient implementation of existing laws. Consequently, written Executive Orders, Regulations or Rules legally made by an executive government are binding Law. 

1.6 It must be mentioned that mere television/radio comments, policy documents/broadcasts, social media posts or public threats and pleas of President, Governor or their agents is not law or regulation. At best, such threats/pleas are policy guidelines/directions and in Nigeria, policy guidelines of government are not laws. Unlike Executive Orders, Regulations or Rules which are law and having the force of law, policy documents/guidelines of government and other comments of government are not Law”. Consequently, the “EFCC Order” is not an executive order, regulation or law. 

1.7 Hence, it is unlawful, illegal and unconstitutional for any person to be arrested or prosecuted based on a mere television/radio comments, policy documents/broadcasts, social media posts or public threats and pleas of President, Governor or their agents (the EFCC Chairman). Offences must be clear and can only be created by law or regulation and not by common sense, inference, wishes, conjecture, popular opinion, “judicial rascality” or executive abracadabra.

Conclusion: 

The “BEDA Act” made since September 1986 has no room for reminders and notices rather expects the federal government of Nigeria to enforce the “BEDA Act” against all employees bound under the “BEDA Act”. The EFCC and other security agencies should have on the orders of the Secretary to the Federal Government of Nigeria, being verifying and investigating assets declarations of employees under the “BEDA Act” and the assets of such employees. And, where such employees failed to declare assets since 1986, they should have been prosecuted and convicted. 

The “EFCC Order” is a “Notice” to the extent that it is a reminder of the existence of the “BEDA Act”, however, it is also a “Noise” since it is not a binding regulation/directive of Federal Government and has no force of law. The grace period from 16 March 2021 to 1^st June 2021 purportedly created by the “EFCC Order” is unknown to law, it is rather a violation of the “BEDA Act” and as such unlawful and illegal. 

My authorities, are:

1. Sections 1, 2, 3, 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1 to 14 of the Bank Employees, etc. (Declaration of Assets) Act 1986.
3. The Supreme Court judgment on “Meaning of Regulation” in the case of AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2006) LPELR-3161(SC)
4. The Court of Appeal judgment on “Meaning of Executive Order/Regulation” in the case of ELEPHANT GROUP PLC v. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528(CA)
5. The Supreme Court judgment on “Policy Documents/Guidance” in the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081(SC).
6. The Supreme Court judgment on “Policy Documents/Guidance” in the case of UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG. ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84.
7. Onyekachi Umah, “Legality of the “EFCC Order” on Bank Employees Declaration of Assets” (ThisDay, 6 April 2021) <https://www.thisdaylive.com/index.php/2021/04/06/legality-of-the-efcc-order-on-bank-employees-declaration-of-assets/amp/> accessed 7 April 2021. 
8. Onyekachi Umah, “The Minimum Financial Threshold for EFCC Cases.” (LearnNigerianLaws.com, 1 September 2020) <https://sabilaw.org/the-minimum-financial-threshold-for-efcc-cases/> accessed 2 April 2020
9. Onyekachi Umah, “Can the Central Bank of Nigeria blacklist a Bank Employee?” (LearnNigerianLaws.com, 29 March 2021) <https://sabilaw.org/can-the-central-bank-of-nigeria-blacklist-a-bank-employee/> accessed 2 April 2021
10. Onyekachi Umah, “Duty of Care Owed By Banks in Nigeria.” (LearnNigrianLaws.com, 1 April 2021) <https://sabilaw.org/duty-of-care-owed-by-banks-in-nigeria/> accessed 2 April 2021
11. Onyekachi Umah, “The Central Bank of Nigeria Notices on Cryptocurrencies; a Ban or a Banger?” (LearnNigerianLaws.com, 9 February 2021) <https://sabilaw.org/the-central-bank-of-nigeria-notices-on-cryptocurrencies-a-ban-or-a-banger/> accessed 2 April 2021
12. Onyekachi Umah, “Who Are The Shareholders Of The Central Bank Of Nigeria” (LearnNigerianLaws.com, 7 February 2019) <https://sabilaw.org/daily-law-tips-by-onyekachi-umah-esq-tip-263-who-are-the-shareholders-of-the-central-bank-of-nigeria/> accessed 2 April 2021
13. Onyekachi Umah, ”How To Prove That A Bank Is Licensed In Nigeria” (LearnNigerianLaws.com, 30 March 2019) <https://sabilaw.org/how-to-prove-that-a-bank-is-licensed-in-nigeria-daily-law-tips-tip-300-by-onyekachi-umah-esq-llm-aciarb-uk/> accessed 2 April 2021 
14. Onyekachi Umah, “Nigeria Has No Law Against Public Gathering During Covid-19 Era” (LearnNigerianLaws.com, 14 April 2020) <https://sabilaw.org/nigeria-has-no-law-against-public-gathering-during-covid-19-era-daily-law-tips-tip-547-by-onyekachi-umah-esq-llm-aciarbuk/> accessed 2  April 2021
15. Deji Elumoye, “EFCC Directs Bankers to Declare Assets by June 1” (ThisDay, 17 March 2021) <https://www.thisdaylive.com/index.php/2021/03/17/efcc-directs-bankers-to-declare-assets-by-june-1/> accessed 2 April 2021
16. Wasilat Azeez, “EFCC orders bank workers to declare assets, sets June 1 deadline” (theCable, 16 March 2021) <https://www.thecable.ng/efcc-orders-bank-workers-to-declare-assets-sets-june-1-deadline> accessed 2 April 2021
17. Chike Oliseh, “EFCC gives all bankers ultimatum to declare their assets” (Nairametrics, 17 March 2021) <https://nairametrics.com/2021/03/17/efcc-gives-all-bankers-ultimatum-to-declare-their-assets/> accessed 2 April 2021. 
18. Fikayo Olowolagba, “We’re not in military regime – Momodu reacts as EFCC orders bankers to declare assets” (Daily Post, 16 March 2021) <https://dailypost.ng/2021/03/16/were-not-in-military-regime-momodu-reacts-as-efcc-orders-bankers-to-declare-assets/> accessed 2 April 2021
19. Comms Week, “Bankers Protest EFCC’s Order to Declare Assets” (Nigeria Communications Week, 22 March 2021) <https://www.nigeriacommunicationsweek.com.ng/bankers-protest-efccs-order-to-declare-assets/> accessed 2 April 2021
20. Ibrahim Yusuf, “Protests greet EFCC asset declaration order to banks” (TheNation, 21 March 2021) <https://thenationonlineng.net/protests-greet-efcc-asset-declaration-order-to-banks/> accessed 2 April 2021
21. Gabriel Ewepu, “CISLAC hails EFCC’s order to bankers on asset declaration” (Vanguard, 19 March 2021) <https://www.vanguardngr.com/2021/03/cislac-hails-efccs-order-to-bankers-on-asset-declaration/“> accessed 2 April 2021
22. Wale Odunsi, “Bankers help fraudsters – CHRSJ backs EFCC on asset declaration” (DailyPost, 29 March 2021) <https://dailypost.ng/2021/03/29/bankers-help-fraudsters-chrsj-backs-efcc-on-asset-declaration/> accessed 2 April 2021
23. The Editorial Board, “Assets declaration should be all embracing” (Business Day, 26 March 2021) <https://businessday.ng/editorial/article/assets-declaration-should-be-all-embracing/> accessed 2 April 2021
24. Dipo Olowookere, “Bank CEOs, Others Jittery Over EFCC Asset Declaration Directive” (Business Post, 17 March 2021) <https://businesspost.ng/banking/bank-ceos-others-jittery-over-efcc-asset-declaration-directive/> accessed 2 April 2021
25. Fakoyejo Olalekan, “EFCC amends charge against ex-Intercontinental Bank MD, Erastus Akingbola” (Nairametrics, 14 March 2019) <https://nairametrics.com/2019/03/14/efcc-amends-charge-against-ex-intercontinental-bank-md-erastus-akingbola/> accessed 2 April 2021. 
26. Thisday, “EFCC Arraigns BDC Operators for Laundering $1.6m” (Thisday, 30 June 2020) <https://www.thisdaylive.com/index.php/2020/06/30/efcc-arraigns-bdc-operators-for-laundering-1-6m/> accessed 2 April 2021
27. Ann Godwin, “Banks becoming money laundering institutions, EFCC boss alleges” (Guardian, 6 April 2019) <https://guardian.ng/news/banks-becoming-money-laundering-institutions-efcc-boss-alleges/> accessed 2 April 2021
28. Kunle Sanmi, “Bank worker, wife arrested over alleged $1.49 million money laundering” (Premium Times, 4 November 2019) <https://www.premiumtimesng.com/news/more-news/360933-bank-worker-wife-arrested-over-alleged-1-49-million-money-laundering.html> accessed 2 April 2021
29. Ihuoma Chiedozie, “Lifestyle audit: Nigerians with ‘unexplained wealth’ to lose assets to FG” (ICRC, 27 March 2021) <https://www.icirnigeria.org/lifestyle-audit-nigerians-with-unexplained-wealth-to-lose-assets-to-fg/> accessed 2 April 2021.

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