How EFCC abuses ‘holding charge’

Some Nigerians have raised concerns over the Economic and Financial Crimes Commission (EFCC)’s abuse of the law under the concept of ‘holding charge’ to keep corruption suspects beyond the time stipulated by law. The EFCC has often been accused of detaining suspects indefinitely without formal charge. But most times, the commission obtains remands from different […]

Some Nigerians have raised concerns over the Economic and Financial Crimes Commission (EFCC)’s abuse of the law under the concept of ‘holding charge’ to keep corruption suspects beyond the time stipulated by law.

The EFCC has often been accused of detaining suspects indefinitely without formal charge. But most times, the commission obtains remands from different courts or different jurisdictions to avoid breaching the constitution.

 Section 35 (3) of the 1999 Constitution provides that “any person who is arrested or detained shall be informed in writing within 24 hours (and in a language that he understands) of the facts and grounds for his arrest or detention.”

Sub-section 4 (a) and (b) provides for commencement of trial within two months or three months depending on the nature of the case.

Sections 293 to 296 of the Administration of the Criminal Justice Act (ACJA, 2015) provides that a remand obtained from court can be valid for 14 days and renewable for another 14 days-if the authority shows ‘good cause.’

But the EFCC has been accused of circumventing these legal requirements by obtaining different remand after the expiration of the previous one to keep on holding a suspect on the pretext of non-conclusion of investigation and trial.

At the beginning of the charges of N4.9bn fraud against former Director of Media and Publicity of the Peoples Democratic Party (PDP), Femi Fani Kayode, the EFCC arrested him and obtained warrant from a magistrate’s court in Abuja to keep him from May 9 until the expiration of that warrant. He was then moved to another court in Lagos for a fresh remand warrant.

His counsel, Ifedayo Adedipe (SAN) brought a fundamental right application before an FCT High Court, arguing that the action of the EFCC contravenes the Nigerian Constitution.

But Justice Olukayode Adeniyi ruled that the anti-graft agency did not breach the law since the new warrant was still subsisting when the application was made. EFCC eventually charged Kayode before the Federal High Court in Lagos and Abuja.

Another citizen, Na’im Lawal was arrested in Katsina on October 14, 2016 on charges of conspiracy, theft of government money, money laundering and obtaining under false pretence.

EFCC moved him to Abuja and obtained a warrant from Magistrate Usman Shu’iabu of the Chief Magistrate’s Court, Wuse Zone 2 to hold him for 14 days, in the first instance, pending the conclusion of investigation.

At the expiration of the time, the EFCC went before Magistrate Azubuike Okeagu of a Chief Magistrate’s Court in Mpape to obtain a fresh remand warrant to hold him further. But after the expiration of the order, the court ordered for the discharge of the suspect, which the commission failed to obey.

“What EFCC is doing is double offence against the Constitution of the Federal Republic of Nigeria,” said. Barrister Frank Tietie, executive director of Citizens Advancement for Social and Economic Rights (CASER).

 “It is contrary to Section 35 of the Constitution. Because it is unconstitutional to remand a person beyond the time provided by law, and to circumvent it again is another offence.

  “If you keep someone, who is presumed innocent until proven guilty by Section 35 of the Constitution, beyond the time set by law, it means you are already punishing the person. Won’t the person be entitled to compensation and apology?,” he said.

Tietie said the provisions of Section 294 of the ACJA allows the EFCC to hold a suspect for a cumulative period of 56 days, if the 14 days window is renewed four times, this he described as unconstitutional.

He maintained that though the Supreme Court has ruled that the 24 hours or 48 hours prescribed as limit to detention by the constitution is not enough to put together a case, the power to grant remand under “Section 294 of the ACJA contradicts the constitution and is therefore “grossly illegal and should be expunged.”

For his part, Barrister E.M.D. Umukoro stated that though the intention of the framers of the ACJA is good, law enforcement agencies and law administrators have found means to circumvent it.

“Like Lord Denning said, if you have good laws and bad judges, justice will be crushed. But if you have bad laws and good judges, they will find a way to serve the interest of justice,” Umukoro said.

“What the law enforcement agencies do is that after the expiration of their remand warrant, instead of them to show good reason by affidavit, explaining what investigation have been done and what is still required, they try to circumvent the law.

“If a defence lawyer is aware that they have gone to a different court to obtain a fresh remand warrant, the lawyer can counter them by obtaining a Certified True Copy of the proceeding from that court and submit it before the court that ‘this is an abuse of court process.’ And make the court hold that that is an abuse of the fundamental right of the suspect,” he explained.

“Some of the inmates are being held under sections 293-299 of the Administration of Criminal Justice Act especially in the FCT,” said Raphael Nweke of the International Human Rights Protection Initiative (IHRPI), an organization challenging the concept of ‘holding charge’ at an Abuja Federal High Court. “When a court lacks jurisdiction on a case, it loses the power to make any pronouncement on it.”

Anti-corruption prosecuting lawyer, Leke Atolagbe, however, explained that the practice does not constitute an abuse of the law because the EFCC has the right to renew the remand up to 56 days depending on the circumstance of the case and the type of investigation required.

“It is not wrong to renew the remand elsewhere. For instance, if you arrest someone in Ibadan and detain him with a remand and the offence was committed in Abuja, when you get to Abuja you have to renew the remand in Abuja,” Atolagbe said. “Even in the UK they are entitled to renew for up to 90 days while in Nigeria we can only renew for 56 days.”

The Head of Media of the EFCC, Wilson Uwujaren did not respond to inquiries made through his mobile phone.