The constant move by some highly-placed political figures and others to subvert justice by obtaining court orders restricting their arrests and prosecution is raising concerns in the country. BRIDGET CHIEDU ONOCHIE writes that the obnoxious trend of gagging suits, which is deliberately designed to frustrate, prevent, and discourage anti-graft agencies from discharging their statutory functions, if allowed to continue, may give the impression that some persons are above the law.
Graanting of unjustified restraining orders by courts, and the dire challenge that this poses to the speedy resolution of corruption cases dominated talks at the recently held 6th Economic and Financial Crimes Commission (EFCC)/National Judicial Institute (NJI) Capacity Building Workshop for Justices and Judges.
At the workshop, which theme was: “Integrating Stakeholders in Curbing Economic and Financial Crimes,” participants comprised justices and judges of the Supreme Court, Court of Appeal, high courts, prosecutors, investigators, anti-corruption experts, civil society groups, media executives and other stakeholders in the anti-corruption corridor, maintained that granting of unjustified restraining orders is posing serious challenges to the speedy resolution of corruption cases.
They, therefore, called on jurists who are handling economic, financial crimes, and other acts of corrupt practices, to exercise more caution in granting restraining orders.
“Courts should be wary of granting unjustified restraining orders issued at the behest of government officials and suspects that are under investigation as this can erode public trust and confidence in the judiciary,” the communiqué read, adding that there is a “need for increased reliance on non-conviction based asset forfeiture procedures in the forfeiture of assets, especially digital assets; need for judges with track records of handling economic and financial crimes cases to be designated to handle such cases, need for increased emphasis on intelligence-driven investigation that leverages existing information technology infrastructures rather than relying mostly on whistle-blowers.”
While maintaining that the judiciary is a critical stakeholder in the administration of justice, the workshop admitted that the judiciary’s adjudicatory functions cannot be judiciously discharged without diligent investigation and prosecution by key agencies.
Be that as it may, the validity of court orders restricting anti-graft agencies or the police from arresting and prosecuting alleged offenders was recently tested at the Court of Appeal in Abuja.
The three-man panel, comprising Justices Olubunmi Oyewole, Abubakar Mamud Talba, and Danlami Zama Senchi, delivered judgment in a matter between the Economic and Financial Crimes Commission (EFCC) and the former governor of Kogi State, Yahaya Adoza Bello.
The panel categorically held that a court of law cannot preclude the EFCC or any law enforcement agency from investigating and prosecuting crimes.
According to the court: “It is a fundamental jurisdictional point that arrest and prosecution of accused persons cannot be shoved aside as they border on the doctrine of separation of powers.”
Also using the unfolding Bello drama as a reference point, the reckless issuance of court orders by judges remains a troubling scenario, especially with its dire implications on the polity.
In the matter under review, the former governor had filed a fundamental rights enforcement suit against the EFCC, for which he was granted an interim injunction, through an ex-parte motion by Justice Isa Abdullahi Jamil, of a Kogi State High Court sitting in Lokoja.
The order barred the EFCC from infringing on Bello’s fundamental rights, either through arrest, detention, or prosecution. It further ruled that any step towards such actions “is null and void.”
Although the EFCC has taken decisive steps to upturn the motion, many are, however, worried that the trend of gagging suits, if allowed to continue, may invalidate the old saying that “nobody is above the law,” in addition to giving impetus to corruption and other high profile crimes to further thrive in the country.
Before now, there have been similar instances where political elites obtained either interim or perpetual orders of the court to halt their trials. Consequently, the apex court has constantly cautioned against “gagging suits,” which it held, were deliberately designed to frustrate, prevent, and discourage anti-graft agencies from discharging their statutory functions. These warnings have, however, not been heeded.
While relevant agencies are swift in matters involving ordinary citizens, they are found foot-dragging when it has to do with high-profile people even though they are fully empowered under Section 35(1.e) of the 1999 Constitution (as amended), which stipulates that everyone is entitled to his liberty except to bring him before a court upon reasonable suspicion of having committed a criminal offense.
Despite this provision, invitation letters are often extended to most of these privileged individuals, by the relevant agencies, but rather than honour the invitations, they quickly rush to federal or state high courts to challenge the legitimacy of the invitation and hide under the guise of seeming violation of fundamental rights to personal liberty to file human rights violation cases and obtain orders restraining further action against them.
Whether it be an interim order, which is issued to ensure the status quo remains during the pendency of the litigation; an interlocutory order to halt a process of investigation, or prosecution or perpetual order, which permanently restrains relevant agencies from initiating processes of arrest or investigation of the accused, the law of arrest and prosecution on a person suspected to have committed crime invalidates them.
The controversy over whether arrest and prosecution of an accused person for criminal allegation amounts to infringement of his, or her fundamental human rights, has also been succinctly answered by the law.
But can a judge despite his knowledge of the law deliberately grant an order to shield an accused person through a legal backdoor?
According to a Port Harcourt-based lawyer, Festus Oguche, some judges often descend to such low levels as reflected in the current political impasse in Rivers State.
The legal practitioner warned that a person approaching the court seeking to be shielded from criminal investigation, and prosecution constitutes an interference with the powers given to law officers in the control of criminal investigation by the constitution.
In this circumstance, an accused person, irrespective of his position in society has no legal right to a judicial fiat that can prevent a law officer, or institution in the exercise of his constitutional power.
Oguche decried that most culpable of such misdemeanour are past governors, whom he alleged, quickly ran to the nearest court to obtain orders precluding their arrests, or investigation.
“But the Court of Appeal in the most recent case between EFCC and Bello allowed the appeal filed by the anti-graft agency against the orders granted by Hon Justice Isa Abdullahi Jamil, of Kogi State High Court in April,” he said.
Oguche stressed that the nullity of restraining orders against arrest and prosecution has been a long-standing judicial principle, not only within the Nigerian legal system but universally.
“An order may stop the authorities from arbitrary arrest. In that case, the police might not take a suspect to their facility, but take him to court straight for arraignment. The case against Bello has come to shed more light on the issue, as the court held that no order could stop an accused person from facing the law.
“Although a judge can stop arrest, but that depends on the purpose. If it is to take a suspect to cell on a Friday, knowing full well that the suspect might stay beyond the constitutional 48 hours, which touches on his fundamental human right, then, you must seek interpretation of the court, which said that the suspect must not be arrested, but if the arrest is to apprehend the suspect and take him to court for arraignment, this does not in any anyway amount to contempt of court, and no court will enforce that order.
“However, if you arrest a suspect and keep him for a long time in your custody, you have violated the order of the court. So, those orders restraining, detaining, and prosecuting an alleged offender are null and void. The regular trend in criminal justice is that you don’t keep a suspect too long in your facility unless the court orders upon arraignment that you take him back to your facility.
“So, to the best of my knowledge, the court cannot hold anybody criminally responsible for contempt of court if the purpose was to charge an accused person to court without detaining him. If the purpose is to detain him while the investigation is being carried out, you must seek interpretation of the court before the suspect can be detained.”
Oguche, however, blamed anti-graft agencies for being reluctant in their approaches, noting that political elites often take advantage of their complacency to get away with crimes. “The authorities sometimes respect such orders when judges are jumping over themselves,” he added.
Given the above positions, it therefore means that the frequent parade of restraining orders by some privileged Nigerians is either as a result of interpretation lacuna, or outright disregard for established laws.
On the controversial issue of rights abuse, Oguche held that arresting an accused person when there is substantial evidence does not amount to an infringement of his right to liberty.
In stating his position, Mr Bayo Akindele, an Abuja-based lawyer held that courts can grant any order so far as it fits the justice of the case and has recourse to the facts, and the law on the matter
“An arrest may be made upon an allegation that a law has been breached, but there are rules regarding detention, which must not be for more than 48 hours. However, prosecution should only happen where substantial evidence exists to back such allegations. At least, a prima facie case must be made against a person who has been alleged to have committed a crime.”
He also held that there is no doubt that the work of a judge is key to establishing a safe and equitable society.
“What a judge decides in a courtroom goes a long way in making a society better or worse. Judges are meant to be fair and apply the law to any given case before them. Each case is different and facts too may be different. So, it is hard to say if a judge’s decision is a good one or a bad one when it comes to granting orders. Only time can tell.
For the Executive Director of Sterling Law Centre, Deji Ajare, anti-graft agencies are statutorily empowered to investigate persons suspected to have committed crimes, irrespective of their statuses.
He, however, decried that anti-graft agencies gave impetus to the common practice of obtaining prohibitive orders from the court.
“These agencies in most cases arrest and detain suspects to carry out investigations. Sometimes, these detentions are extended to several days and weeks. This practice is not only wrong but unconstitutional. Its effect is that it has led to a loss of confidence in these agencies.
“On the other hand, many courts had lent themselves as tools in the hands of public officeholders who seek to evade justice and accountability for their actions while in office.
“It is thus important for the anti-graft agencies to ensure that they stop the practice of arresting people and detaining them for extensive periods without just cause. The judiciary must also do an internal audit by disciplining judges who grant frivolous orders restraining investigation of public office holders,” Ajare stated.
