Lawlessness of Law Enforcement Agencies
Last week, I mentioned the fact that this ‘Cross-Over’ period from one administration to another is EFCC/ICPC/DSS etc season; and truly, a few days into the new Tinubu administration, “Ifa tin sé (the oracle) Ifa’s predictions, are already coming true). They have started to display their penchant for lawlessness (particularly the DSS & EFCC), the baptism of fire this time around, begun with DSS preventing EFCC Staff from entering their offices in Lagos last week – inter-agency rivalry and infighting. We have not forgotten how the DSS raided the houses of judicial officers in the dead of night in October 2016, treating them shabbily, like wanted criminals – it was disgraceful; or how they denied members of the National Assembly entry into their complex to do their work. I remember stating unequivocally at the time of the raid on judicial officers, that the DSS has no establishment statute, since it isn’t one of the agencies listed in Section 1 of the National Security Agencies Act 1986 (NSA Act), even though some claim that the DSS is the successor-in-title of the SSS which is listed in the NSA Act, the NSA Act has not been amended to so provide. And, assuming without conceding that the DSS is the successor of the SSS (which we cannot say that it is), the functions of the SSS which are clearly stated in Section 2(3) of the NSA Act do not include the bullying, oppressive acts that the DSS has become rather infamous for; the business of the SSS is to, inter alia, protect the internal security of Nigeria.
Respect for the Rule of Law by Government & Its Agencies
It is our hope that, unlike their predecessor, the Tinubu administration will show utmost respect for the rule of law. President Tinubu himself, during the NADECO days, having experienced what it feels like to go into exile to escape from an oppressive government and its law enforcement agencies, would understand how important following due process is. It is good that he has called the DSS to order; but, that’s just the tip of the iceberg. It doesn’t stop there. I even wonder how these agencies intend to fight Nigeria’s insecurity problem, if instead of cooperating with themselves, sharing intelligence and joining hands to achieve the primary purpose of government which is the security and welfare of the people as provided by Section 14(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), they are busy quarrelling, alienating and isolating themselves, when we are all aware that a divided house cannot stand.
First and foremost, it is important that these agencies are put in remembrance of Section 1(1) & (3), Chapter IV, particularly Sections 35, 36, 38, 39 & 40 of the Constitution; that the Constitution is supreme and binding on all persons and authorities in Nigeria, including them; and where the provisions of their establishment statutes or any other law or framework they may operate under are inconsistent with those of the Constitution, they are null and void to the extent of their inconsistency, and the Constitution takes precedence.
The EFCC’s establishment statute is the Economic and Financial Crimes Commissions (Establishment) Act 2004 (EFCC Act); and Sections 6 & 7 thereof list the functions of the EFCC, including the investigation of all financial crimes like advance fee fraud, money laundering etc. In Anogwie v Odom 2016 LPELR-40214 (CA) per Frederick Oziakpono Oho, JCA, the Court of Appeal held that it is trite that no agency can act outside the purview of the provisions of its establishment statute; “…the invitation of the Police to intervene in a matter that is purely civil in nature, cannot be justified under any circumstances. The duties of the Police as provided under Section 4 of the Police Act 1990, does not include the settlement of civil disputes, or the collection of debts, or enforcement of civil agreements between parties”. Similarly, witch-hunting, assisting people to settle scores with their enemies by means of filing spurious, baseless petitions against adversaries at EFCC, which are then entertained by the EFCC etc, debt collecting, all of which are obviously not part of the remit of EFCC, DSS or any law abiding law enforcement agency, seem to be some of the roles these agencies love to play with gusto and aplomb (relish too). In Skye Bank v Emerson Njoku 2016 LPELR-40447(CA) the Court of Appeal held inter alia that Complainants who wrongly use agencies like EFCC and the Police to violate the fundamental rights of citizens must be ready to face the consequences of their actions, either alone or with the misguided Agency. These abuses must stop.
EFCC: Frivolous Petitions and Flawed Procedures
When a petition is raised against an individual at the EFCC, it is the duty of the EFCC to investigate the allegations contained therein. To investigate simply means to undertake a detailed inquiry into a matter, to establish the truth or otherwise of the allegations contained in a petition. But, unfortunately, a good number of our law enforcement agents know nothing about investigation, or since they are also in cahoots with those who raise spurious petitions, they forget all they have been taught about how to investigate and instead, take the allegations in the petitions as the gospel truth or at least, prima facie evidence of the truth. Instead of doing a thorough investigation, they haul in the person who has been petitioned against, to start to drill, threaten and intimidate the person into a confession.
An invitation to the EFCC is akin to an arrest; and this defies Sections 35(1) & 36(1) & (5) of the Constitution. A clear distinction must be made – an invitation for an interview does not and cannot constitute an arrest. It is absurd and preposterous, ‘jungle justice’ really, that anyone honouring an EFCC invitation must go armed with their Counsel and maybe two sureties who have their tax clearance for three years preceding and own landed property. This is not done in any civilised society, and it is a clear breach of the fundamental rights of citizens. The threat of detention, is also used as a weapon against Invitees/Interviewees. This warped process opens the floodgates of abuse, as, if I don’t like you, or I feel that you have offended me, or I want to ruin your reputation so that you are not considered for one position or the other, I can just raise a useless petition against you and file it at EFCC. The question I once asked and answered on my page in December 2018 during Ibrahim Magu’s tenure at the EFCC, remains pertinent: “Simply put, is it lawful for an individual to be arrested and require a surety, based on an unsubstantiated petition against such an individual? I think not. What happened to the right of fair hearing, guaranteed by Section 36 of the Constitution?”
When an invitee honours EFCC’s invitation, it is the questions asked and the answers provided, that serve as the investigation. How ridiculous! In fact, Nigerian law enforcement are known for carrying out their own work backwards – they arrest first, then conduct shabby investigations, instead of carrying out thorough investigations prior to issuing invitations and effecting arrests. Even though everyone is entitled to Counsel, sometimes Counsel are chased out of the interrogation room, while their clients are questioned, threatened, intimidated and harassed alone by EFCC Operatives.
To be clear, there is no law that permits the EFCC or any other agency to take ‘mug shots’ of invitees to publicise on television and social media, but the EFCC has a penchant for publicising the photos of invitees and announcing to the world that invitees are being “quizzed”. This is unlawful and humiliating, especially when the petitions turn out to be frivolous, and nothing can be proven against the invitee. Such practice should be strictly prohibited.
Section 15(1)(d)(ii) of the Administration of Criminal Justice Act 2015 (ACJA) provides that the photograph of a suspect who is arrested and his/her other details are taken, as a record of the arrest. The mug shot or any other photo of an invitee, is not for purposes of circulation in the media, to humiliate and turn the public against such invitee, and subject them to a media trial. Similarly, in the case of parading suspects before the media, this was declared illegal and unconstitutional in Ottoh Obono v IGP FHC/CA/91/2009 per Aneke J. In that case, prior to his arraignment, Obono had been paraded before journalists, as a member of a car snatching armed robbery gang. His photo appeared in the newspaper and NTA News. Having spent 10 months on remand at Kirikiri, Ottoh Obono was exonerated of the charges. The court held that the treatment of Obono had made nonsense of his presumption of innocence, enshrined in Section 36(5) of the Constitution. He was awarded N20 million in exemplary damages by the court, to be paid by the Police. In Ayinde v State (2018) LPELR-44761(SC) per Amina Adamu Augie, JSC the Supreme Court held inter alia, that the purpose of an identification parade, is to be able to establish the identity of accused persons, by eye witnesses or victims. It is not for publicising, in the different forms of media.The Constitution and the law, also do not envisage the detention of an invitee, but the detention of a suspect following an arrest – see Section 35 of the Constitution generally, and Sections 14 & 15 ACJA, amongst other statutes.
Conclusion
A lot of unsavoury things have been said about the Police and EFCC particularly, and the way they operate; that these so-called crime fighting and anti-corruption agencies, are themselves cesspits of crime and corruption, operating all sorts of scams like debt recovery; in-house bondsmen who stand surety for invitees to bail them for a fee; of course, bribery as well, to mention but a few of their unlawful activities.
Going forward, we expect that the new administration will overhaul all law enforcement agencies. A situation where the staffing of any agency, like the EFCC for example, is skewed towards the Northern part of the country contrary to Section 14(3) of the Constitution which mandates that the federal character of Nigeria shall be reflected in Government and its agencies, is unacceptable. Ditto for any other agency that is run by Yorubas or Igbos predominantly, or one singular ethnic group or religion. There must be diversity, a balance in order to avoid the concentration of power of a particular agency in the hands of a particular group, who can then easily turn around to use it as a tool of oppression and mischief against others. While the Chairmanship of the ICPC for example has gone to the different zones, that of the EFCC has always remained in the North. The way the 2023 election divided Nigerians to a very large extent on ethnic lines, an even distribution of positions amongst all Nigerians, and not just the three tribes which are perceived to be the majority tribes, is required to heal some of our wounds.
ACJA must also be amended to include some new provisions. In the past, it was usual for the Police to arrest a substitute like a sibling, in place of a suspect when the suspect could not be found. Section 7 of ACJA, now clearly prohibits this illegal practice. It is time for ACJA to prohibit law enforcement agencies from turning interviews to automatic arrests that require bail, false imprisonment, from publicising photographs of interviewees in the media, parading suspects on television (see Section 9(a) of the Lagos State Administration of Criminal Justice (Amendment) Law 2021) and subjecting people to media trials based on frivolous petitions, especially when there are no reasonable grounds against such an invitee/interviewee to maintain the petition. There should also be consequences for law enforcement agencies, for operating ultra vires their powers and treating citizens badly, based on malicious, baseless allegations. It is time for Nigeria to start to adhere to international best practices, in its law enforcement processes.
