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The attestable enthusiasm of the Nigerian Security agencies in carrying out their statutory mandates as seen in the flurry of investigations, arrests and prosecutions are often undermined by their disregard for due process of law in particular instances and the usurpation of powers unallocated to them.

EFCC and other security agencies habitual public notices declaring individuals suspected to have committed a crime as WANTED is unlawful, illegal and lacking the authorisation of the law. In fact, overtime it has simply become a tool of administrative convenience to issue public summons on a suspect sought to be arrested, and is an indicator of dictatorial tendencies inherited from the infamous military regime.

Any zeal shown in operational actions that spite the law and ridicule laid down processes to ensure respect for the rule of law are misnomer that defeat the very purpose of the law. There is no law anywhere in Nigeria that gives EFCC or even the SSS powers to declare anyone wanted without a valid court order. It is nonsense.

In every country, there exists a social contract between citizens and the government which is to the effect that the citizens and its government shall remain subject to laws enacted by the State to prevent anarchy and its resultant chaos. Therefore, no government agency can or should act on its own without following laid down procedures established by the laws of the land.

The Administration of Criminal Justice Act, 2015 being the Criminal Procedural Law with provisions which are binding on all agencies of the Federal Government of Nigeria without exception have explicitly laid down processes from the point of arrest to the conviction or acquittal of a person, and no variation of same even if driven by overzealousness can be excused.

Specifically, section 41 of the Administration of Criminal Justice Act, 2015 empowers only the court to issue public summons in newspapers or any other means when a suspect against whom a warrant of arrest was issued has absconded or is concealing himself so that the warrant cannot be executed. It is therefore even a condition precedent for the security agencies to have obtained a valid warrant of arrest first and foremost before the agencies can approach the court to declare a suspect wanted. The EFCC, SSS and other security agencies therefore have no legal power or authority to arrogate a power bestowed on the court by the law to themselves. Only the courts in Nigeria have and enjoy such a discretion.

Reiterating this position in an Enforcement of Fundamental Human Rights matter between Mr Benedict Peters v EFCC, wherein the Claimant through his lawyer, Chief Mike Ozekhome SAN, challenged the powers of the EFCC to declare the Claimant wanted, Honourable Justice Othman Musa invalidated the declaration of the Claimant as a wanted man by the EFCC and the Court held that the EFCC was bereft of the powers to declare any person wanted without first securing the leave of a court of competent jurisdiction.

A cursory look at the provisions of the Economic and Financial Crimes Commission (Enforcement) Regulations, 2010 shows that it is expressly stated in Regulation 12(2) that the Commission (EFCC) shall comply with all laws relating to arrest and granting of bail to suspects. Concluding with the decision of the honourable court in the said matter, the EFCC in the discharge of its administrative functions has the power to declare a suspect wanted only when armed with a valid court order and after fulfilling all the conditions precedent, to wit: obtaining a warrant of arrest and obtaining a court order in the event that the said suspect absconds or evades arrest.

This same position was espoused in a judgement by Honourable Justice Husseini Baba Yusuf, wherein he ordered the EFCC to act in accordance with due process of the law when the agency declared a former deputy governor of Osun State, Iyiola Omisore wanted and the EFCC in that instance complied with the court’s ruling. The EFCC should thus not be lazy to learn the law, particularly decided matters where the agency has been involved in court.

Of course this is not common to the EFCC alone but other similar agencies of government such as the State Security Service which has also in several occasions illegally declared persons wanted. Such an abuse of power constitutes clear official harassment, and it would appear these agencies which are creations of the law themselves cannot be bothered to acquaint themselves with the law or are defiant to its provisions when it suits them.

Closely related to the matter of unlawfully putting out notices of persons as wanted for suspicion of a crime is the publication of the pictures and other details of persons arrested or detained by the EFCC, and sister agencies such as the ICPC, the Police and the DSS. This is simply Media trial. The publication of the pictures and details of such persons by these agencies is a clear breach of their constitutional right to the presumption of innocence before and until a conviction is secured. It also amounts to a clear rubbishing of their chances in court, defamation before a public mostly unlearned in the peculiarities of arraignment and prosecutions who might wrongfully conclude that such persons have indeed been convicted of said crimes.

All of these unlawful though normalised practices of the EFCC and other agencies of state point to an institution rot and a s systemic erosion of due process to service the ego of the authorities who hope to be seen as active and doing their job by the public. It must end. We must not be seen to be fighting illegality with illegality, and it is the need to protect against the excessive use of powers that necessitates respect for laid down procedures. The EFCC must of urgently set its house in order and stop lending itself to illegalities for the sake of doing their duties. It is a paradox that writes itself.

Pelumi Olajengbesi Esq., is a Legal Practitioner and the Principal Partner at Law Corridor Chambers, Nigeria.

Lawcorridor@gmail.com

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