EFCC, Please, Reflect on Justice Kolawole’s Upbraiding

I sincerely hope that the EFCC will ponder on all the points raised by Justice Kolawole and make amends. Detaining suspects for weeks, in some cases for months, without being taken before any court is a clear violation of their right to personal liberty a

Justice Gabriel Kolawole of the Federal High Court, Abuja copiously presented the position of Nigerians bothered about the consistent abuse of the rule of law by the Economic and Financial Crimes Commission (EFCC), when he faulted the procedures adopted by the anti-graft agency in arresting and detaining suspects. The judge, who was delivering a judgment on Tuesday, said it was wrong for the EFCC to arrest suspects before or during investigation. He also said the practice where the EFCC procured remand orders from magistrate courts, in cases on which they lacked jurisdiction, was unlawful. Justice Kolawole also declared unlawful and a violation of the provisions of the law establishing it, a situation in which the EFCC freezes a suspect’s account without a court order.

The Federal High Court judge in a judgment delivered in a fundamental rights enforcement suit filed by Senator Abdulazeez Nyako, son of former governor of Adamawa State, Murtala Nyako, declared: “The practice of arrest before trial is not only absurd; it is a corruption of the due process of law and Constitution. The earlier the magistrate courts and other lower courts realise that they are being used to subvert the Constitution, the better. It is as a result of incidents such as this, that make the Judiciary to be opened to public ridicule and opprobrium of issuing black market orders or remand by courts, who ex-facie (on the face of it), lack the jurisdiction to try the offences being investigated.

“And these are, in my view quite unfortunate. The statutory agencies seem to sidetrack the obligations and rights created by the Constitution to protect citizens’ fundamental rights from being abused and violated.”

It is very sad to note that the points raised by Justice Kolawole have been the stock in trade of the EFCC for almost a year now. I commend this judge for asserting his authority and the independence of the Judiciary. The EFCC has simply been abusing the provisions of Section 293 of the Administration of Criminal Justice Act (ACJA) 2015, which allows magistrates to remand suspects on a holding charge for a maximum of two weeks in a situation where the prosecution required time to tidy up its case. The constitutionality or otherwise of ACJA 2015 is still a subject of controversy. For me, it is glaringly unconstitutional. I am shocked that our so-called human rights activists have refused to challenge this Act.

Just as Justice Kolawole noted, hiding under ACJA 2015 was a “jaundiced interpretation” of the Supreme Court’s decision in the case of Lufadeju vs. Johnson in SC/247/2001, where the Supreme Court upheld the powers of the magistrates courts to issue remand warrants, even where they lacked jurisdiction to try the offences charged.

It should also be noted that the Chief Judge of the High Court of the Federal Capital Territory (FCT), Abuja, Justice Ishaq Bello had on January 12, this year, questioned the practice where magistrates grant remand warrants in relation to cases on which they lacked the jurisdiction to entertain. Justice Ishaq Bello subsequently directed magistrates in the FCT Judiciary to desist immediately from granting remand orders to probing agencies in such instances.

I sincerely hope that the EFCC will ponder on all the points raised by Justice Kolawole and make amends. Detaining suspects for weeks, in some cases for months, without being taken before any court is a clear violation of their right to personal liberty as guaranteed under Section 35 of the Nigerian Constitution. Using administrative powers to freeze suspects’ bank accounts without obtaining a court order to that effect, is also a violation of the provisions of the EFCC Establishment Act. This war against corruption must be fought within the ambits of our laws. The EFCC must conform to global standards.

For me, the issue is not whether Senator Abdulazeez and his father are corrupt or not. While the EFCC is going about this patriotic war against corruption, it must ensure that suspects’ personal liberty as guaranteed by our Constitution is not violated. Our anti-graft agency must also put an end to impunity and ensure fairness to all suspects. Justice Kolawole concurred that the EFCC had a justifiable reason to arrest Senator Abdulazeez; but to keep him without arraigning him is unconstitutional. He also ruled that the EFCC has no right to freeze suspects’ accounts without court’s approval. The EFCC must stop the practice of detaining suspects while they go about investigation. They must have established a prima facie case against a suspect before arresting him; thereafter, the suspect should be arraigned within 48 hours or allowed to go home on bail. It was heart-warming that Justice Kolawole awarded N12.5million in exemplary damages against the EFCC and in favour of Senator Abdulazeez.

The case of Senator Abdulazeez’s op- pression by the EFCC is even mild compared to that of Chief Femi Fani-Kayode who has been in EFCC’s detention for 46 days without being charged to court. The agency had earlier obtained a 14-day remand warrant at an Abuja court. When it expired, the agency knew that it would be difficult to obtain an extension from the same court. So, it whisked Fani-Kayode to Lagos and obtained another warrant from an Ikeja Magistrate court to keep him for another 21 days. Fani-Kayode’s lawyers had earlier served the EFCC notices from a Federal High Court in Abuja on May 20 for the enforcement of his fundamental human rights. But the EFCC ignored this. He has also met all his bail conditions, yet, they refused to release him. This is another case of gross abuse of court processes and a denial of his fundamental human rights.

It is pertinent to note that this former minister was invited by the EFCC and he promptly honoured the invitation. He has no history of attempting to evade arrest. I don’t know what our anti-graft agency stands to gain by this indecent tactic. I hope the EFCC is not confirming insinuations that they have been directed to keep Fani-Kayode out of circulation. He should not have been invited in the first place if the agency had not established a prima facie case against him. This idea of detaining people while continuing investigation has no place in a democracy. I am shocked that our human rights lawyers are not speaking up against this impunity.

There are already insinuations that the failure to arraign the former Peoples Democratic Party’s campaign spokesman is a bid to continue using underhand tactics to keep him in detention ad infinitum. It is even more disturbing that this is happening after Fani-Kayode had met all bail conditions set for him by the EFCC. Furthermore, virtually all those charged alongside this former minister are out on bail and attending court sessions from home while he (Femi) is still being detained illegally. This is the same man that submitted himself for trial and has cooperated fully with the anti-graft agency so far. To continue keeping him in detention under any guise is dictatorial and unconstitutional. Another fear being expressed in this case is that the judge to whom the case has been assigned may be used by the EFCC to achieve their set goal of keeping Fani-Kayode in detention perpetually. This judge is known to have very close affinity with EFCC where he was once the Acting Head, Legal Unit.

This morning, I urge the EFCC to please place a premium on propriety and professionalism in its conduct. There must be utmost respect for the rule of law.