‘Arrest before investigation violates constitution’

Section 35 of the 1999 constitution (as amended) provides for the fundamental rights to personal liberty. It also extensively stipulates the circumstances under which a person could be deprived of such liberties. In recent times, the Economic and Financial Crimes Commission (EFCC) and other security agencies have been accused of arresting and detaining accused persons without much regard to the above provisions. Critics say the problem occurs because people are usually arrested before investigation is carried out and completed. The result, they say, is that people are kept in detention while they are being investigated for an alleged offence. An Abuja-based lawyer, Jeph C. Njikonye, believes such a scenario violates section 35. He told BRIDGET CHIEDU ONOCHIE that such a scenario can be avoided if security agencies pay attention to that section of the law and insist on doing the right thing. He also examined the leadership tussle between senator Ahmed Makarfi and senator Ali-Modu Sheriff, both of the People’s Democratic Party (PDP). Njikonye also spoke about the recent decision of the court of appeal involving governor Okezie Ikpeazu of Abia State and Dr. Uche Ogah, among other issues

What is your view about the alleged increasing impunity exhibited by the security personnels and other anti-graft agencies involved in the anti-corruption crusade?
Section 35 of the 1999 Constitution (as amended) makes provision for the fundamental rights to personal liberty and provided the circumstances under which such fundamental rights could be infringed upon. But very significantly, sub-sections four and five provide the limit to which a security agency can detain an individual without taking the person to court. It is clearly spelt out. The constitution is very clear that if there are courts within a radius of 40 kilometres, you must charge the person within a day and if there are no courts within a radius of 40 kilometres, not more than two days.

It will promote the rule of law if our security agencies, including the Economic and Financial Crimes Commission (EFCC), try not to infract on such constitutional provisions. And to be very clear, the courts have boldly, in plenty of authorities decided that it is illegal and unconstitutional for a security agency, including the EFCC to arrest someone and hold the person in detention for the purposes of investigation. There are plethora of authorities where the courts have decided on the matter. Our courts have expressly determined that before an arrest is effected, you must have investigated the matter and established a prima facie case against the individual. Otherwise, you will be running foul of the clear constitutional provisions and individuals who are affected in such situations should quickly assuage themselves by taking up originating processes for the enforcement of their fundamental rights.

It saves the image of the institution, that is, the EFCC, in carrying out its statutory duties, to try as much as possible not to infract on constitutional provisions. But there is a militating bad trend. The militating bad trend recently is for the EFCC and sometimes, the Police to apprehend someone and quickly run to the magistrate court to obtain an order permitting them to hold the individual in custody. Fortunately, the courts have also declared that such actions are unconstitutional. First, the magistrate courts do not have the jurisdiction to try the offence, so why would they give the order for an individual to be remanded? The earlier the law enforcement agencies try as much as possible to operate within the limit of the law, the better for everybody.

Could arrest before investigation be attributed to prolonged prosecution?
That is another problem altogether. Ordinarily, if the right thing is done, the success rate of prosecutions should be 90 per cent if not 100 per cent. In other words, if law enforcement agency does its home work well, almost every charge will result in conviction, except on few occasions. In fact, that is what obtains in the western world. Before they can commence trial or charge an individual, they would have done a thorough job and be sure of their facts.

But it does appear that in our scenario, the security agencies are more concerned with media coverage of having arrested ‘prominent’ persons. They are more concerned with such media coverage tickling the ears of the populace than having real facts to prosecute charges. All these contribute to protract the time it takes to have such matters tried. If the security agencies have done their work well, it would not take four years before a single charge is prosecuted to conclusion.

Is it ideal to prosecute those accused of financial infractions after they have returned the money to the government?
A crime is a crime! If an individual commits a crime, the mere fact that he has repented is of little affect with regards to the punishment that may be imposed on the individual. But certainly, it cannot be a ground to say that because the person appears to have repented, he is no longer eligible for prosecution. It only goes to mitigate the consequences and not to completely erase fact that the person has committed an offence or a crime and the fact that the person is liable to be prosecuted.

So, my view is that once a crime is committed, whether the individual returned the money or not, the state can go ahead to prosecute the person. The intention is what is punished. Assuming the person is not caught? Would he voluntarily had returned the money? The answer is no! In the first place, why was the money taken when it was clear that it does not belong to that individual? So, returning stolen funds in exchange for prosecution would not discourage theft.

The constitution is very clear that if there are courts within a radius of 40 kilometres, you must charge the person within a day and if there are no courts within a radius of 40 kilometres, not more than two days. It will promote the rule of law if our security agencies, including the Economic and Financial Crimes Commission (EFCC), try not to infract on such constitutional provisions. And to be very clear, the courts have boldly, in plenty of authorities decided that it is illegal and unconstitutional for a security agency, including the EFCC to arrest someone and hold the person in detention for the purposes of investigation. There are plethora of authorities where the courts have decided on the matter. Our courts have expressly determined that before an arrest is effected, you must have investigated the matter and established a prima facie case against the individual. Otherwise, you will be running foul of the clear constitutional provisions and individuals who are affected in such situations should quickly assuage themselves by taking up originating processes for the enforcement of their fundamental rights

What do you think about the recurrence of conflicting decisions?
Once it was brought to the attention of a Judge in the second matter that there is an earlier suit on the same subject matter pending before a court of competent jurisdiction, it would be neater for the judge to transfer the second suit to the court that has entertained the first suit in order to avoid conflicting decisions. Judges have always tried to be careful, to ensure that litigants do not expose or create the kind of scenario that is playing out now by litigating same subject matter in different courts.

But there have been instances, where it has resulted in judges giving conflicting decisions. However, it should not be a course for worry, because there is a sufficient constitutional safeguard. The constitution makes provision for an aggrieved person to approach the court of appeal and if you go there and you lose, you can approach the Supreme Court for the determination of the issues. Before all these constitutional provisions are explored to the end, the court would have come out with a stand on such issues.