By KOLADE ALEBIOSU
With much respect, I feel seriously compelled to air my opinion against the backdrop of the sinister intention of the Lagos State Government and that of the Lagos State House of Assembly to sign into law the Lagos State Public Complaints and Anti-Corruption Commission Law, ousting and usurping the powers of the Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices Commission (ICPC) and other anti-graft Agencies to investigate any financial crimes in Lagos State. Furthermore, I read that by virtue of the existence of that law, the Commission established in this regard will take over the investigations of all anti-corruption and financial crimes cases involving the finances and assets of Lagos State under investigation by the EFCC, ICPC or any other related Agency.
Without much ado, having painstakingly considered some of the provisions contained in the preposterous law, it is my humble opinion that the Lagos State Government through the Lagos State House of Assembly played the ostrich by making efforts to achieve the impossible.
It is imperative that the Attorney General of Lagos State should have at least advised the Governor of Lagos State with respect to the illegality and operational incompetence of the said law, putting into consideration, the provision of Section 4(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Section 4(5) of the Constitution provides:
“If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void”.
The Supreme Court of Nigeria has given judicial exposition to the above Constitutional provision with a view to explaining the consequence that follows where an Act of the National Assembly co-exist with any State Law on the same subject. The Supreme Court in A-G OF FEDERATION v. A-G OF LAGOS STATE (2013) LPELR-20974 (SC) espoused as follows:
“Mention must at this stage be made of the “doctrine of covering the field.” Of that doctrine, this court in INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) v. ALHAJI ABDULKADIR BALARABE MUSA (2003) 3 NWLR (PART 806) 72 said as follows, per Niki Tobi, JSC., “The doctrine of covering the field can arise in two distinct situations. First where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly a law is enacted which the Constitution has already made provisions covering the subject matter of the Federal Act or the State Law. Second where a State House of Assembly by the purported exercise of its legislative powers enacted a law, which an Act of the National Assembly has already made, provisions covering the subject matter of the State law. In both situations the doctrine of covering the field will apply because of the “Federal might” which relevantly are the Constitution and the Act. That doctrine would apply where both the Federal and State legislatures can legislate as in matters under the Concurrent Legislative List.” Per ALAGOA, J.S.C. (Pp. 178-179, paras. G-F)
The Supreme Court went further in the same case to say that:
But, is it not likely that there shall be multiplicity of laws or conflict of laws, or interference on a given subject matter, where both the Federal (Central) government and a state government legislate on the same subject? This is very obvious and likely. The panacea to it however, it resort to the old doctrine of covering the field. It is a doctrine relevant in a federalism and postulates that where a Federal constitution or a federal enactment has already covered a particular legislative field, no State or even Local Government law can be enacted to cover the same field already covered by the Constitution or the Federal enactment. The doctrine, thus, postulates the mutual non-interference such that in a country operated by rule of law hinged on a Federal Constitution, such as ours, there should be that unsigned agreement among the federating States on one hand and the Federal (Central) government on the other hand, for non-interference, especially by legislative action, in the affairs of the other with a view to achieving a very strong and effective working of the Federal superstructure
Furthermore, the age-long principle of ‘covering the field’ was reiterated by the Supreme Court in the case of AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2017) LPELR-43713 (SC) as follows:
“A convenient place to commence the resolution of this issue is to examine the application of the doctrine of “covering the field” as it relates to the powers of the National Assembly and State Houses of Assembly to make laws. In A.G. Ogun State & Ors. Vs. A.G. Federation (1982) NSCC (Vol.13) 1 @ 35 lines 18 – 30, His Lordship, Kayode Eso, JSC stated thus: “I take the view that when one considers this doctrine, the phrase “covering it the field” means precisely what it says. Where a matter legislated upon is in the concurrent list and the Federal Government has enacted a legislation in respect thereof, where the legislation enacted by the State is inconsistent with the legislation of the Federal Government it is indeed void and of no effect for inconsistency. Where, however, the legislation enacted by the State is the same as the one enacted by the Federal Government, where the two legislations are in pari materia I respectfully take the view that the State Legislation is in abeyance and becomes inoperative for the period the Federal Legislation is in force. I will not say it is void. If for any reason the Federal Legislation is repealed, it is my humble view that the State legislation, which is in abeyance, is revived and becomes operative until there is another Federal Legislation that covers the field.” (Emphasis mine) This view was endorsed and adopted by this Court in the case of AG Abia State Vs AG Federation (2002) 6 NWLR (Pt.763) 264 @ 435 F, to wit: “The doctrine however renders the paramount legislation predominant and the subordinate legislation remains inoperative so long as the paramount legislation remains operative. Where of course, there is obvious inconsistency, the subordinate legislation is void.”
It is respectfully within the confines of legality to assert that apart from the provision of Section 4(5) of the Constitution cited above, there are plethora of judicial decisions, which have rendered unequivocally as being in abeyance and inoperative, the action of the Lagos State Government with respect to the enactment of the anti-graft law if it is in pari materia with a Federal enactment; and void to the extent of its inconsistency, if any.
It may be worthwhile to play to the crowd the fact that the National Assembly has enacted the Economic and Financial Crimes Commission (Establishment) Act 2004, which has empowered the EFCC to investigate economic and financial crimes amongst others. Therefore, it is crystal clear that by virtue of the recent enactment of the Lagos State Government ousting and usurping the powers of the EFCC and other anti-graft Agencies, there is an obvious interference between the EFCC Act and the new Lagos Anti-Corruption Commission Law; as such, the new Lagos Law shall to the extent of its inconsistency be void, and remain in abeyance and inoperative to the extent of its consistency (the devil’s alternatives, sort of).
I am not in any way challenging the power of the Lagos State House of Assembly to make laws with respect to combating financial crimes, but what I am addressing is the fact that such power of the Lagos State House of Assembly must not interfere and/or conflict with that of the National Assembly. This assertion is not my opinion but rather the provision of the Constitution being our Constitutional organogram and the pronouncements of the Supreme Court in plethora of cases. Again, even if there is no inconsistency, the law is that the new Lagos Law will be in abeyance for the time the Federal Act is still in force.
Viewed from an entirely different but equally weighty perspective, I am also of the firm view that the Lagos State House of Assembly under the leadership of Right Honorable Mudashiru Obasa has neither moral justification and nor legal competence to oversee the enactment of a law ousting and usurping the powers of the EFCC to investigate corrupt practices at a time when he (RT. Mudashiru Obasa) is facing criminal investigations of misappropriation of public funds by the EFCC. The Honorable cannot be a judge in his own cause (nemo judex in causa sua).
It is against the doctrine of fair hearing for Obasa whose investigation for misappropriating Lagos funds is pending before EFCC to superintend over the enactment of a law to oust and usurp the powers of the EFCC to investigate him, subjecting such powers within the control of the State.
If the Attorney General of Lagos State has failed in one of his appointed functions to advise the Government with respect to this issue of National concern to avoid legislative and Constitutional embarrassment on Lagos State, I therefore lend a helping voice to advise the Lagos State Government, Lagos State House of Assembly and all other “dramatis personae” involved in this action-packed movie-like scenes to have a rethink and retrace their steps with respect to the new Anti-Corruption Law of Lagos State; as such law, in the final analysis, cannot stand the test of Constitutional scrutiny and legal brickbats that it is bound to attract.
It may be instructive too to note that hard as both the Executive and Legislative arms of the Lagos State Government may be trying, Lagosians, Nigerians and the world at large are not fooled by their wiles and gimmicks. Their covert and ulterior motive is as clear as the stars on a cloudless night. It is to use the law to usurp the current investigation of R. H. Mudashiru Obasa by the EFCC, which shall be vehemently resisted using the instrumentality of the law and the Court. May I therefore plead that Lagos State Government call for the immediate end of that law so as to avoid the impending public show of incompetence, confusion and greed of both the ‘drummer and the dan happycing birds’.