EFCC has no power of arrest and detention

Federal and states legislatures make ordinary laws establishing government authorities, and conferring on them with the power to arrest and/or detain civilians, even in periods during which there is not in force a Proclamation of a state of emergency declared by the President of Nigeria.

The objective of this work is to ascertain whether the federal legislatures have the constitutional legislative powers and matters, to establish and confer on the Nigerian Economic and Financial Crimes Commission (EFCC), the statutory power of arrest and detention of civilians in periods of no emergency.

The work evaluates the constitutional functions of, and foundation for the establishment and operations of federation and federal government security authorities, that may be conferred with the power of arrest and detention in Nigeria, so as to be able to ascertain if EFCC is a federation authority, and/or is conferrable with the power of arrest and detention.

The federation and states legislatures
A reference to the Federal Republic of Nigeria (also called Nigeria), is a reference to the federation of the states and the Federal Capital Territory (FCT) administered by the President of Nigeria, the National Assembly and the courts of the Federation. See section 2 of the CFRN. A reference to any part thereof the Federal Republic of Nigeria, is a reference to any of the ‘37’ States of Nigeria as administered by its Governor, House of Assembly and courts.

Laws of Nigeria mainly comprise the CFRN itself and laws made by the National Assembly and the States legislatures in accordance with the provisions of the Constitution of the Federal Republic of Nigeria (CFRN). While the National Assembly makes laws for the federation or any part thereof with regard to the constitutional legislative matters included in the Exclusive Legislative List, and for the federation (excluding any part thereof) with regard to constitutional legislative matters in the Concurrent Legislative List, States legislatures make laws in accordance with the CFRN for each part thereof Nigeria.

Apart from the constitutionally established authorities or security services for the federation or any part thereof, or conferring of powers on such authorities or security services, the National Assembly is further empowered by the CFRN to exclusively create other government authorities or security services for the federation or any part thereof under section 4 and Chapter II of, and the Second Schedule to, the CFRN.

A combined reading of sections 1(2) & 14(1) of the CFRN shows that the Federal Republic of Nigeria and any part thereof shall be a State based on the principles of democracy and social justice. Section 15(5) of the CFRN, which is a Fundamental Objectives and Directive Principle, provides that the Nigerian Federation or State (ie the Federal Republic of Nigeria isolated from the parts thereof) shall abolish all corrupt practices and abuse of power.

Although the Federation consists of the states and the FCT, a state or the FCT has some level of independent existence and government from the Federation. To that extent, a constitutional mandate in section 15(5) of the CFRN on the Federation to abolish all corrupt practices and abuse of power in the Federation, is not a constitutional mandate on the Federation to abolish all corrupt practices and abuse of power in the Federation or any part thereof.

However, Item 60(a) of Part I of the Second Schedule to the CFRN provides that: ‘The establishment and regulation of authorities for the Federation or any part thereof to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution’, shall be within the exclusive legislative power of the National Assembly.

This simply means that a State of the Federation cannot make any law for the promotion or enforcement of anti-corruption in that State; as only the National Assembly can make ordinary laws for the promotion or enforcement of anti-corruption in the Federation or any part thereof. On this score, the EFCC as an anti-corruption authority, established by the National Assembly under sections 4 & 15(5) of the CFRN and Item 60(a) of the Second Schedule to the CFRN, is a competent authority for the promotion or enforcement of anti-corruption measures in the Federation or any part thereof in each State or FCT.

The power of arrest and detention of federation authorities or security services in periods of no emergency
The CFRN established different authorities and security services, and directly or indirectly conferred on them various powers. The Nigerian Police Force (NPF) established by section 214 of the CFRN, and the Armed Forces of Nigeria (AFN) established by section 217 of the CFRN, are the foremost government security services established by the CFRN itself.

The CFRN further empowers the National Assembly of the Federation to establish more government security services in Item 45 of Part I of the Second Schedule to the CFRN, which security services, by the provision of section 4(2) of the CFRN, shall be established for the Federation or any part thereof. A State, apart from being unable to establish anti-corruption authorities for itself, is constitutionally incapable of establishing security services for itself.

The EFCC, though a government authority established for the Federation or any part thereof, for the promotion or enforcement of anti-corruption laws of the National Assembly, is not a government security service under Item 45 of Part I of the Second Schedule to the CFRN.

The constitutional validity of the conferment of the power of arrest and detention on the EFCC by the National Assembly of the Federation is the focus of this part. Can the National Assembly establish an authority and confer on it the power of arrest and detention of civilians in periods of no emergency in Nigeria?

The arrest and detention of a person is a fundamental constitutional right limitation. As a limitation to the fundamental constitutional right to personal liberty, neither the National Assembly nor the States Houses of Assembly can limit personal liberty unless they have been spaciouly authorised by the CFRN to limit personal liberty.

A careful look at section 35(1) of the CFRN will reveal that neither the National Assembly nor any of the State Houses of Assembly is given the constitutional legislative power to limit personal liberty of civilians in any period during which there is not in force a proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.

Section 35(1) of the CFRN is clear that the only power granted the legislatures over civilians in periods of no emergency is the power to legislate criminal procedures and not the power to limit or make ordinary laws limiting personal liberty.

According to section 35(1) of the CFRN, ‘Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law’.

None of the cases provided in section 35(1) of the CFRN involved the constitutional conferment of powers on the legislatures to limit personal liberty. The power to limit or confer powers to limit personal liberty of civilians in periods of no emergency is therefore reserved for the CFRN itself. The CFRN exercised this power in section 214 of the CFRN by establishing a government security service called the NPF and empowering the legislatures to confer any conceivable power on the Force, including the power of arrest and detention. The legislatures have since enacted the Nigerian Police Act 2020 empowering the NPF to arrest and detain suspects.

The law, as ordained by section 4 & 318(1) of the CFRN and Parts I, II & III of the Second Schedule to the CFRN, is that for a legislature to have the competence to legislate an ordinary law on a constitutional legislative matter that shall have been constitutionally assigned to the legislature, the legislature shall have a competent substantive constitutional legislative power to legislate on an equally competent substantive constitutional legislative matter.

Sections 35 & 214(1) of the CFRN and Item 45 of Part I of the Second Schedule to the CFRN, respectively provide the substantive constitutional legislative power and matter, for conferring on the NPF with the statutory power to limit personal liberties.

Thus, even if the constitutional legislative matter of the NPF is not a matter of limitation of personal liberty, the matter of the constitutional permission for the conferment of unlimited powers on the NPF is broad enough to accommodate the matter of limitation of personal liberties.

Section 35(1) of the CFRN is the custodian of the substantive constitutional legislative matter on arrest and detention. In the absence of a substantive matter on arrest and detention, it is incompetent to exercise powers conferring right of arrest and detention on a government authority or security service, on any incidental matter of arrest and detention presumed by a legislature.

In conclusion, section 35(1) of the CFRN in particular, and the CFRN in general, do not confer on the legislatures the power to establish any authority or security service, and confer on it the power to limit personal liberties of civilians in periods of no emergency.

The only situations the CFRN empowered the legislatures to establish authorities or security services and confer on them the power to limit personal liberties, are where the personal liberty of a member of the NPF or AFN is involved, and in periods of emergencies. See sections 35(7)(b) and 45(2&3) of the CFRN. EFCC, not being a part or branch of the NPF, its members, in their official capacities, are not constitutionally empowered, on their own, to arrest or detain civilians in periods of no emergency.

Awkadigwe is a Lawyer and consultant Obstetrian and Gynaecologist at ESUT Teaching Hospital Parklane Enugu.