Abuse Of Magistrate Court Remand Orders By EFCC: In Defense Of FCT Chief Judge & Rule Of Law
(Intersociety, Onitsha Nigeria, 18th January 2016)-The attention of the leadership ofInternational 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 toeconomic 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 thatmagistrate 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 investigationarrest 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.
Emeka Umeagbalasi, Board Chairman
International Society for Civil Liberties & the Rule of Law
Obianuju Joy Igboeli, Esq., Head, Civil Liberties & Rule of Law Program
Uzochukwu Oguejiofor-Nwonu, Esq., Head, Campaign & Publicity Department