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| Hon Justice Ishaq Bello |
The attention of the leadership of International
Society for Civil Liberties & the Rule of Law has been drawn to public
condemnations by a section of legal practitioners and civil society
organizations based in Southwest Nigeria; strongly believed to be sympathetic
to the administration of President Muhammadu Buhari. The condemnations are with
respect to a directive recently handed down by the Chief Judge of the Federal
Capital Territory, Hon Justice Ishaq Bello to all serving magistrates within
the Federal Capital Territory to henceforth stop issuing remand orders to
the operatives of the Economic & Financial Crimes Commission with
respect to arrest and detention of citizens accused of committing economic and
financial crimes in Nigeria; which are investigated and prosecuted by EFCC
under its Act of 2004.
Our position is that
Hon CJ Ishaq Bello deserves commendation and
not condemnation. We have every reason to suspect the voice
of Jacob and the hand of Esau in the referenced condemnations of Hon
CJ
Ishaq Bello’s commendable bold directive. Till date, these groups and
voices that resurrected suddenly from their unholy slumbers; have kept sealed
lips over series of State murder, terrorism and disrespect to
rule of law including reckless and rapacious disobedience to judicial
decisions by the administration of President Muhammadu Buhari. A fraction that
barely speaks spoke in between their tongues; probated and reprobated.
Till date, we are
not aware of public comments or condemnations coming from such Aso Rock
remote-controlled CSOs and legal activists under
reference over the recent massacre of hundreds of Shiite followers and dozens
of innocent pro Biafran activists by Nigerian security forces particularly the
army and police nor have they risen in condemnation of plethora of disobedience
to court orders and other judicial pronouncements by the Presidency of Muhammadu
Buhari. Their unholy silence remained provocatively dead even when
President Buhari publicly justified his anti rule of law and constitutionalism
disposition on 30th December 2016 during his maiden media chat. We
reject in totality the antics of these telephone ringing tone CSOs or
legal activists; who rush to the media once Aso Rock’s table or
mobile phone lines ring and instruct.
For the avoidance of
doubt, Section 3 of Nigeria’s Criminal Code Act of 2004 clearly
provided for three categories of offense in Nigeria. They are
namely, felonies, misdemeanours and simple offences. The Criminal
Code Act further defined felony as any offence which is declared by law to
be a felony, or is punishable, without proof of previous conviction, with death
or with imprisonment for three years or more. A misdemeanour is also
defined as any offence which is declared by law to be
a misdemeanour, or is punishable by imprisonment for not less than six months,
but less than three years. And all offences, other than felonies and
misdemeanours, are defined by the same Criminal Code Act as simple
offences; bearing maximum judicial punishment of less than six months.
In other words, offenses relating to economic and financial crimes
contained in the EFCC Act of 2004, which the Commission is statutorily
empowered to prosecute; expressly fall under misdemeanor offenses with
judicial punishment ranging from six months to three years depending on count
charges.
The totality of the above is that the
Nigerian criminal accusation, investigation, arrest, detention, prosecution,
sentencing and conviction or acquittal visited against citizens
alleged to be in conflict with the law by the country’s criminal law
enforcers and the court; is strictly and clearly guided by the three offense classifications
and their sentencing categories. Also criminal offenses in Nigeria are easily
determined by sentencing or punishment categories. In other
words, it is constitutionally and statutorily prohibited for a citizen accused
of committing an offense of money laundering to be arrested and detained as a capital
punishment offender or armed robbery suspect or treasonable felon. This
is also reinforced by Section 35 (5) (a) (b) of the 1999 Constitution to the
effect that no non capital offense offender and related grave crime
offender should be arrested and detained beyond 24/48hrs without trial.
That is to say those who are alleged to have committed offenses under lesser
felonies, misdemeanors and simple offenses must not be detained beyond
24/48hrs without trial.
Other citizens
alleged to have committed capital offenses and related grave crimes like arson;
rape, manslaughter, etc may be arrested and detained without trial for maximum
of 60 days. This is provided in Section 35 (4) (a) of the 1999 Constitution.
The spirit and letters of Section 293 (1) of the Administration
of Criminal Justice Act (ACJ) of 2015, which Hon CJ Ishaq Bello was
falsely accused of violated, are expressly laid on the fact that a
citizen arrested over capital punishment and associated grave offense must not
be detained beyond 24/48hrs without a magistrate court remand. This
explains why the same Section says: “a suspect arrested for an offense
which a magistrate has no jurisdiction to try (capital offenses and related
grave offenses), shall, within a reasonable time of arrest (24/48hrs: see
Section 35 (5) (a) of the 1999 Constitution)), be brought before a magistrate
court for remand”. Section 293 (1) of the ACJ Act of 2015 under
reference was originally and unambiguously designed to address the menace of Holden
Charge; whereby the criminal justice enforcers in the country engage in
reckless arrest and long detention without trial of their captives by dumping
them in perpetual detention after “arraigning them before magistrate courts
lacking jurisdiction in trying them for offenses leveled against them”.
From the highlights
and grounded submissions above, the Hon CJ Ishaq Bello was correct and grounded
to have issued the ban. The clear and unambiguous message following this is
that magistrate courts have no business issuing remand orders to EFCC
operatives for the purpose of detaining longer than constitutionally permitted,
citizens accused of committing economic and financial crimes in Nigeria, which
are classified by the Criminal Code Act of 2004 as well as the EFCC Act of 2004
as lesser felony or misdemeanor offenses; judicially punishable
by three years imprisonment. This is more so when the EFCC is
constitutionally and statutorily prohibited from arresting, detaining and
prosecuting alleged capital punishment offenders and others
alleged to be involved in committing other grave street criminal
offenses.
Resorting to
pretrial brigandage and recklessness under the guise of fighting
corruption must be fought and crushed in Nigeria with utter alacrity.
Reckless resort to or use of magistrate court remand to clamp economic and
financial crimes suspects into long pretrial detention can boomerang, leading
to prosecutorial lose of the alleged offense by the EFCC.
A smart defense
counsel can lay a trap against the detaining authority and strike in a twinkle
of exhaustion of the time frame by invoking Section 296 (6) and 296 (7) of the
ACJ Act of 2015 to get his or her client discharged and released
unconditionally. Investigation and prosecution of economic and financial crimes
offenses are substantially paper or bureaucratic evidence based; requiring
minimum pretrial incarceration. Suspects can also be arrested and
released on strict conditional administrative bails (i.e. deposition of
international passports, weekly invitation to the EFCC office, etc) while
the investigation is continued and concluded.
These methods were
extensively and successfully used by Ruhu Ribadu’s EFCC; in addition to its
successful application of in-bureaucratic investigation and
after-bureaucratic investigation arrest and short detention
methodologies. We have further observed that most of the administrative blunders
inherent in the present EFCC and its handling of economic and financial crimes
stem from the fact that its headship is led by officers with non legal
background or expertise. Such a sensitive and national anti graft agency ought
to be led by criminal lawyers or criminologists.
We hereby commend
Hon CJ Ishaq Bello for his courageous step. The criticisms following his
commendable ban order are not surprising to us. This is because one of the
consequences of the Buhari administration’s affront to rule of law and
constitutionalism in Nigeria is the emergence and congregation of entrepreneurs
of dictatorship; wearing juridical, rights CSOs, political and
legal gowns.
We advise the
critics under reference to respect the laws of Nigeria as presently enacted and
practiced or sponsor a bill, if uncomfortable, to the National Assembly to
remove the economic and financial crimes offenses from their present misdemeanor
offense and related others classification and punishment; and elevate
them to any grave punishment of their choice including capital
punishments (I.e. life imprisonment). This is the only way citizens
accused of breaking economic and financial crimes may be detained in long
pretrial detention under magistrate court remands; and to the pleasure of the
critics under reference.
Consequently, the
National Judicial Council (NJC) and its chairman, Hon Justice Mahmud Muhammed
(CJN) is, therefore, called upon to disregard any media criticism or petition
brought before it targeted at ridiculing or lampooning the grounded and
courageous administrative ban order of the Hon CJ Ishaq Bello directed at all
serving magistrates in the Federal Capital Territory, Abuja. Such bans should
also be extended to magistrate courts of other States in Nigeria.
Signed:
Emeka Umeagbalasi,
Board Chairman
International
Society for Civil Liberties & the Rule of Law
Mobile Phone:
+2348174090052
Website: www.intersociety-ng.org
Obianuju Joy
Igboeli, Esq., Head, Civil Liberties & Rule of Law Program
Uzochukwu
Oguejiofor-Nwonu, Esq., Head, Campaign & Publicity Department
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