THE ECONOMIC & FINANCIAL CRIMES COMMISSION: A CRITICAL ANALYSIS OF THE LEGALITY OR OTHERWISE OF THE EXISTING PRODUCURE FOR ARREST & INVESTIGATION
The regular series of events in an arrest by Law Enforcement is fairly simple and followed worldwide: Investigate, arrest and prosecute. The regular series of events in an arrest by the Economic and Financial Crimes Commission however is Arrest, Investigate and prosecute.
A TYPICAL EXAMPLE
On the 20th of January, 2020, the Economic and Financial Crimes Commission, EFCC, Ibadan zonal office, reported on that it had arrested 89 suspected internet fraudsters at the Club 360 located in Ibadan, the Oyo State capital. It did this via an official government channel, Twitter. The EFCC is very open and vocal about its mode of arrest. Why is this? Well, when an executive is overpowered and can openly disregard the directions of the judiciary, one of two things typically tends to happen. The legislative and Judiciary can come together to curb the Executive’s power excesses or a police state is formed. In Nigeria, a country where the Legislative is actively working on bills to regulate social media (one of the only means through which its citizens can find justice) and the Judiciary is constantly harassed by the Executive, I believe we have chosen the later.
It was reported that in preparation for the late night operation, officers of the commission had carried out a series of discreet surveillance on the nature of activities going on in the nightclub which, according to intelligence, was notorious for harbouring suspected internet fraudsters. Suspected being the operative word here. It is clear from every single piece of reporting on these arrests that the EFCC had at the time of making the arrests, not obtained any evidence against the suspects. This is further confirmed in the report on twitter which also read ”The raid also led to the confiscation of scores of vehicles, laptops, sophisticated phones and other items. The suspects are undergoing further interrogation.”
The above mentioned scenario is not novel, as the EFCC has brazenly declared its methods of arrest in times past. For example, on the 12th of December 2012, Innocent Chukwuma the CEO of Innoson Vehicle Manufacturing was arrested by the EFCC. In its statement Chile Okoroma, director, legal and prosecution of the EFCC, eloquently stated that “We (The EFCC) can arrest a person with or without a warrant.”
THE PROVISIONS OF THE LAW VIS A VIS THE MODE OF ARREST BY THE EFCC
Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and Articles 6, 7 and 18 of the African Charter on Human Rights (Ratification and Enforcement) Act, Cap (A9) Laws of the Federation of Nigeria 2004, provide as follows:
“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law”. It is important to note that none of the instances as provided in the Constitution are applicable to the arrests made by EFCC on the 20th of January, 2020.
As recently as 2018, it was decided in the Court of Appeal case of USMAN v. THE EXECUTIVE CHAIRMAN, EFCC (2018) LPELR-44678(CA) that “where the arrest and detention of the suspect/appellant comes within the ambit of Section 35 (1) (c) of the Constitution, the arrest would be considered lawful, unless where it infringes on the provisions of the same Constitution.”
It is important to tie this illegality to arrests made by other Law Enforcement Agencies in the Country. To put it plainly, any arrest made contrary to Section 35 of the Constitution is illegal. The result of arrests made without any prior investigation or active capture of suspect as they commit the crime will only create a bigger backlog of weak Court cases, wasting the time of the Judiciary and the money of tax payers.
KNOWING YOUR RIGHTS
According to Section 35 of the 1999 Constitution of Nigeria, the following rights belong to all citizens following an arrest:
1. The right to bail: This right is constitutionally guaranteed and it provides that a suspect is entitled to be released with or without conditions, even if further proceedings are brought against them.
2. The right to Private Legal Advice: A suspect or accused person who is under arrest or detention has the right to a counsel guaranteed. This is important because it means that a person being detained or arrested can speak to a lawyer before making a statement, which in turn makes it illegal for the police to compel an accused person or suspect to make any statement against their wish without a lawyer present. This results in the tight to remain silent or avoid answering any questions until after having consulted legal advice from a legal practitioner.
3. The right to be informed of the reason for arrest: A person cannot be detained without being informed on the reason or suspicion for the detention. This is contrary to the ideals in Chapter IV of the 1999 Constitution.
4. The right to be brought before court of law within a reasonable amount of time.
5. The right to be tried to an existing offence: This offence must be specifically defined and prohibited by legislation its punishment must be specifically defined.
Ideally, the EFCC should investigate the matter; have all the facts at their disposal and be able to prove their cases with concrete evidence. The prosecution of all Law Enforcement agency charges should be conducted by lawyers who are conversant with the facts of the case and can effectively command knowledge of the law, the facts of the case and evidence in their prosecution. This is as opposed to rushing to the press for news flash and breaking news, without first getting sufficient evidence on a case at hand. That being said, it should be understood that the work of Law enforcement Agencies is paramount to a safer and more commercially viable state.
I believe the solution is a complete overhaul of the entire arrest process which should consist of curbing the powers of Law enforcement agents to arrest on a whim but allows them to effectively prosecute upon adequate investigation. This will require enormous funding and a deliberate change in organisation structure.
The current method of “asking questions after shooting” which often favours the executive and allows them to utilize Law Enforcement agencies as enforcers must be curbed. A way around this would be to fund law enforcement as independently. This would enable more independence in execution and allow for a lasting organizational overhaul.
Prepared by: Temitayo Ayorinde
Edited by: Motunrayo Olaleye
Published by : BA LAW LLP