The signing into law of the Lagos State Public Complaint and Anti- Corruption Commission Bill by Governor Babajide Sanwo-Olu on April 19, 2021 has been received with mixed reactions. While very few commended Lagos State government for bringing about the law to combat corruption and promote accountability especially in the economic and financial activities of Lagos state, many condemned the action especially from two fronts.

The first set of critics see the efforts of the Lagos State government as self-serving and an attempt at shielding corrupt state officials from independent investigation and possible prosecution by the federal institutions such as the Independent Corrupt Practices and other related Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC). This is against the backdrop of the fact that some Lagos state officials (both former and serving) are currently “persons of interest” to federal anti-grafts agencies for alleged economic and financial infractions. The other group of critics, contend that the new anti-graft law of Lagos State is unnecessary view of the fact that the federal laws adequately cover the subject. A moment’s reflection however will give the lie to this assertion. Even with the benefit of state offices and “anti-corruption courts” the Federal agencies are no doubt overwhelmed. Indeed section 15(5) of the Constitution applies to a state just as much as it does to the Federal Government. A state like Kano State had since 2009 established its anti-corruption commission – the Kano state Public Complaints and Anti-Corruption Commission.

It is necessary to state at the onset that the two sets of critics may have justifications for their fears about the new Lagos State Anti-Corruption Commission Law, there is a clear mandate by states to fight corruption under fundamental objectives and directive principles of state policy as captured under Chapter 2 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 as amended. Section 15 (5) specifically provides that: “The state shall abolish all corrupt practices and abuse of power”.

The obligation owed by both the federal and state governments under this clear provision received judicial blessing in the case of Attorney General Ondo State v Attorney General of the Federation and 35 Ors (2002) 9 NWLR (Pt. 772) 222 at p. 307 paras D-F when the Supreme Court held as follows:

“Although the power to legislate on the subject of corruption and abuse of office is given to the National Assembly and State House of Assembly, when both exercise the power the legislation by the National Assembly will prevail by virtue of section 4 (5) of the Constitution.”

In view of the above and while it will be premature to dismiss the Anti-Corruption Commission of Lagos state as a toothless state apparatus to weaken the fight against corruption involving Lagos State officials rather than strengthen it, it is necessary to consciously invigorate our understanding of legislative competencies of both federal and state law makers on subjects of mutual concern. By deliberate effort, the Nigerian 1999 Constitution delineated legislative powers into exclusive and concurrent with the National Assembly having sole powers to make laws in relation to the former while sharing competencies with States Houses of Assembly in relation to the latter. It is also under the latter that the new law made by Lagos State comes under scrutiny.

The doctrine of covering the field is a constitutional law concept peculiar to a federation. It deals with powers of federal government and the federating units in relation to law making. It can occur in two circumstances thus: where the Constitution as the grundnorm has exhaustively provided for something, it is outside legislative competencies of law makers to make laws in respect of those things that the constitution has provided for. Also, where both the federal and the federating units law makers share competencies in relation to an object on the concurrent legislative list and the federal law makers go ahead and make a law covering the entire subject matter, any subsequent law made by the federating units in respect of the same subject matter will be inoperative and in abeyance. This gained judicial validation in INEC v. Musa (2003) 3 NWLR (Pt. 806) 72 at 204-205 paras D-B thus:

“The doctrine of ‘covering the field’ can arise and will apply in two distinct situations. These are-

  • 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;
  • Where a State House of Assembly, by the purported exercise of its legislative powers enacts a law which an Act of the National Assembly has already made provisions covering the subject- matter of the State Law.

However, a State Law which is not necessarily inconsistent with either the Constitution or an Act of the National Assembly but merely covers the legislative field of the National Assembly is not that harmful as it is merely a surplussage. Such a Law is in abeyance and inoperative and could be revived and becomes operative if for any reason the federal legislation is repealed.”

Of moment therefore, in view of the above is the operation of the Lagos State Public Complaint and Anti-Corruption Commission Law. It is not in doubt that the law is ambitious in its provisions especially the provisions of Section 15 (3) and (5) which empower the State Anti-graft body to take over investigation of all cases involving Lagos State from other agencies and imbued it with exclusive powers to investigate corruption and financial crimes cases involving finances and assets of Lagos State. Section 13 (3) states thus:

 “The commission shall upon commencement of this law take over the investigation of all anti–corruption and financial crime cases involving the finances and assets of Lagos State Government being investigated by any other agency.”

Section 13 (5) further states that:

“The Commission shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government.”

The question thus is whether these provisions, nay the entire law, can stand in view of the doctrine of covering the field. As stated above in AG Ondo State v AG Federation & 35 Ors (Supra), the Supreme Court made it clear that where both the federal and state law makers have legislative competencies over the same subject matter, the law made by the federal law makers shall prevail. It was further held at page 470 paragraphs B-D after considering the possibility of federal offences being tried in State High Courts that:

“Therefore I would say that there is no difficulty in recognising that laws validly made by the National Assembly shall prevail over laws enacted by the House of Assembly of a State if it is inconsistent with that of the National Assembly.”    

The position of the Supreme Court found favour in the text of the Constitution at Section 4 (5) which state thus:

“If any law enacted by the House of Assembly 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 inconsistency be void.”

While the Lagos State Public Complaint and Anti-Corruption Commission Law is not necessarily inconsistent with the ICPC Act and the EFCC Act but rather complimentary, the provisions of Section 13 (3) and (5) of the Law will do violence to the powers of ICPC and EFCC. The provisions rather than being subservient, places the Lagos State Anti-Corruption Commission above other agencies (including ICPC and EFCC) investigating corruption and financial crimes affecting assets of Lagos State. The ICPC Act and the EFCC Act are validly made by the National Assembly as expected under Section 4 (5) CFRN, 1999 as amended and recognized by the Supreme Court in AG Ondo State v AG Federation & 35 Ors (Supra) p.341 para. H when it held that: “The Federal Government has power to punish for corruption and fraud in relation not only to property but also to all matters within its legislative competence.” Therefore, the provisions of Section 13 (3) and (5) of the Lagos State Public Complain and Anti-Corruption Commission Law are clearly inconsistent with the ICPC and EFCC Act and shall be void to the extent of their inconsistencies.

It is thus suggested that since the provisions of Section 13 (3) and (5) Lagos State Anti-Corruption Commission Law is inconsistent with the powers donated by the ICPC and EFCC Act, the blue pencil rule should apply whereby the said provisions will be struck down rather than the entire law. This principle also received judicial blessing in AG Ondo State v AG Federation & 35 Ors (Supra) at P.310 paras E-G thus:

“Where only some portions of a legislation are unconstitutional or bad and the rest is not affected, so that the good can be severed from the bad, the court would not invalidate the whole of the Act, but apply the blue-pencil rule to strike out only the portions affected.”

From the foregoing therefore, rather than creating unhealthy competition between the federal government established anti-graft agencies and the Lagos State Public Complaint and Anti-corruption Commission, the working of the agencies should be seen as complimentary and towards fulfilling both federal and the state’s mandates to fight corruption as provided under Section 15 (5) of CFRN, 1999 as amended.