EFCC gets called out for deploying tactics beyond it’s statutory functions

Some youths are getting attracted to Internet scams and should not be allowed to flourish in such ignoble enterprise. But as they do, so does the need by the Economic Financial Crimes Commission (EFCC) to check their activities increases.

EFCC has the mandate to tackle all financial crimes, by arresting and prosecuting suspects, no doubt.

However, in addressing this societal menace, it has been observed that the anti-graft agency deploys tactics beyond its statutory functions.

Whereas some of the key functions of the agency are to investigate all financial crimes, including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments and computer credit card fraud, the agency goes overboard in discharging of these functions sometimes.

The Agency has to maintain a cordial working relationship with the office of the Attorney-General of the Federation, the Nigeria Customs Service, the Immigration and Correctional Service board, the Central Bank of Nigeria (CBN), the Nigeria Deposit Insurance Corporation (NDIC), the National Drug Law Enforcement Agency (NDLEA), as well as all government security and law enforcement agencies. It includes financial supervisory institutions in the eradication of economic and financial crimes.

The anti-graft agency also has the mandate to undertake research and similar works with a view to determining the manifestation, extent, magnitude, and effects of economic and financial crimes and advising the government on ap
propriate measures for combating them.

They also take charge of supervising, controlling and coordinating all the responsibilities, functions and activities relating to the investigation and prosecution of all offences connected with or relating to economic and financial crimes.

EFCC has the power to cause investigations to be conducted as to whether any person, corporate body or organisation have committed any offence under the EFCC Act or other laws relating to economic and financial crimes. In addition, it is charged with the responsibility of enforcing the provisions of the money laundering Act 2004; NO 7 1995 NO 13.

The organisation can also cause investigations to be conducted into the properties of any person if it appears to it that the person’s lifestyle and extent of properties are not justified by his legitimate source of income.

In discharging its functions, it adopts measures, such as coordinated preventive and regulatory actions as well as the introduction and maintenance of investigative and control techniques for prevention of economic and financial related crimes.

But the anti-graft agency has been accused of high-handedness, lawlessness and over-zealousness in the discharge of its duties. While it struggles to conduct itself within the precincts of its mandate, the body has been accused of engaging in excesses, including media trials of suspects.
In its quest to tackle Internet fraud, the agency has invaded hotels and rounded up hotel guests, usually acting on the intelligence that scammers are ensconced in those places. This conduct raises the question of the need to respect the fundamental rights of privacy guaranteed to citizens by the 1999 Constitution.

The anti-graft agency on various occasions arrested suspects for alleged crimes that have not been properly investigated but dispatched press releases or call on the media to publicise the arrests, instead of going through the due process of charging them to court.

Excesses of the agency relate to illegal detention of citizens beyond 48 hours as stipulated in the Constitution. A classical example of this overbearing attitude is the case of the erstwhile second Vice President of the Nigerian Bar Association (NBA) and current chairman of the NBA Section on Public Interest and Development Law (NBA-SPIDEL), Dr. Monday Ubani, who was detained by the EFCC for over 20 days on the ground that his surety, Dr. Ngozi Olejeme, accused of fraud, jumped bail.

Aggrieved over the ill-treatment, Ubani approached the High Court of the Federal Capital Territory, Abuja, which a few weeks ago declared his detention illegal and awarded N12 million against the EFCC.
Sometimes, the agency laid siege to court premises, with the view to arrest or re-arrest suspects, thereby breaching the peace and sanctity of the court environment. An example is the case of a Canadian based Nigeria, Edrian Idida Osagie. The EFCC raided the Federal High Court in Lagos to re-arrest Osagie
The EFCC raided the Federal High Court in Lagos to re-arrest Osagie after the court had ordered his release from custody.

According to his lawyers, the applicant, a Canadian residents
was held by the EFCC following his arrival in Nigeria for a function, based on a petition written against him by his business partners, although they were on the verge of resolving the conflict amicably as friends and business partners.

“It was a business transaction that didn’t go well. The complainants approached him to help them buy cars from Canada. This is not the first time he helped them to buy cars.

“But due to insurance issues and the COVID-19 lockdown all over the world, he could not deliver the cars. Hence they reported him to the EFCC.

He was locked up for over two months without being charged to court, consequent upon which we filed the application for his bail. This was graciously granted by the trial court, he met the bail conditions, but the EFCC still didn’t release him,” his lawyers claimed, adding that they (EFCC) rather laid siege to the court and re-arrested him for a trial at the State High Court.

Similarly, EFCC invaded the Federal High Court, Abuja, in March 2020 to re-arrest a defendant, Babatunde Morakinyo, over a purported fresh charge filed against him at the Lagos division of the court. Morakinyo later sued the Agency, accusing its operatives of violating his fundamental human rights.

About a year after the incident, justice Inyang Ekwo awarded N50 million damages against EFCC in favour of Morakinyo. The judge described the re-arrest as abduction.

Some lawyers believe such excesses for a law enforcement Agency amount to an abuse of the fundamental human rights of suspected citizens.

A Lagos based lawyer, Ezebube Chinwike, explained that every sane and orderly society is a place where the contents of law are upheld and sustained.

His words: “EFCC was established by the EFCC Act of 2004 and Sections 6 and 7 clearly state the Functions and Special Powers of the Commission.

“Fundamentally, the Constitution, which is the foundation of all laws in Nigeria incorporates an accusatorial judicial system that presupposes the innocence of each citizen until the contrary is proven in a law court.

“We are aware, especially through the plethora of court judgments, that all the anti-graft agencies of the government are sometimes deployed for personal vendetta rather than state purpose. When this is deployed, it is obvious that it will not be executed in line with existing rules, regulations and laws.

How can we conclude that a person is involved in Advance Fee Fraud, popularly referred to as 419, if not through the instrumentality of the court?

“But when the agencies involved in prosecution determine the verdict of the accused before going to court, the excesses become more pronounced.

“On the other hand, 419 involves cash and corrupt officers are likely swayed by immediate personal gains and can deploy their official positions to achieve their aims without resort to existing laws as accused persons may easily want to wet palms to gain relief,” Chinwike suggested.

According to him, the excesses may not be totally related to a designed desire to bring perpetrators of a crime to book, but an avenue to share in the loot and as such, anything goes.
Another lawyer, Ayo Ademiluyi said the Act establishing the EFCC set out its powers. The 1999 Constitution, he noted, also stipulates the fundamental rights of all citizens under Chapter 4.

“The crackdown on suspected individuals by EFCC runs contrary to the provisions of the 1999 Constitution. It amounts to an abuse of their fundamental rights.

“The EFCC cannot act beyond its powers. The exercise of the powers under the Act cannot also be over and beyond the Constitution. It will be unconstitutional and ultra vires,” Ademiluyi stated.

Council Member, Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL) and former member of the NBA Criminal Justice Reform Committee, Emeka Nwadioke said the Agency has a difficult job to do. He, however, pointed out that some of the tactics being employed to track suspects leave much to be desired.
His words: “The strong-arm tactic is worrisome and totally uncalled for. There is no gainsaying that if the EFCC is thorough and very discreet in its investigation, this tactic will be entirely unnecessary.

“Media trial is another malaise that has infested the Commission. It is troubling that even before trial, the Commission parades suspects and issues statements condemning them.

“Prolonged detention of suspects is also another unhealthy practice. We have instances where suspects have been detained beyond the Constitutional 48 hours ceiling and some of them have obtained a judgment against the Commission on this score.

“It is also doubtful that the Commission gives lawyers adequate access and facilities to properly represent their clients, especially while within its precincts. Lawyers are occasionally rough-handled or prevented from witnessing the interrogation of their clients.”

According to him, it is imperative that the Commission adopts global best practices in its operations to ensure respect for the rule of law and human rights.

Citing Section 36 of the Constitution, a lawyer, Adebola Lema insists that the section provides a presumption of innocence on any accused person, but regrets that the EFCC has observed the presumption in the breach in the ways and the manner it conducts its investigations.

“The EFCC starts investigation into a matter by putting a lien on the suspect’s account against the provisions of its law, which says only a court of law can put a lien on any account. It took several interventions and challenges before the abuse was stopped.

“EFCC in the course of investigation takes your photographs and puts same on its website in defiance of section 36 of the Constitution. This hasn’t stopped and it is a manifestation of abuse by the Commission.
The anti-graft agency makes bail a barrier for suspects, who seek bail. The requirements of bail are made onerous and a fair hearing is also denied to suspects.

“The Courts aren’t helping matters as challenges to the abuse of the rights of the suspects aren’t giving enough punishment,” Lema declared.

Abdulaziz Ogbui, a lawyer, in his opinion, said the EFCC ought to operate under the law as a creation of the National Assembly. Also, the organic law of the country, which is the 1999 Constitution, he stressed guarantees some fundamental human rights to citizens under section 42. According to him, such rights cannot be brazenly taken away by infractions of anybody or authority, including the EFCC, without recourse to law.

The law as provided under the Constitution, he said, is that an accused person is deemed innocent until proven guilty.
until proven guilty.

“Fundamental rights are under chapter IV of the Constitution. Presumption of innocence is under Section 36(5) of the Constitution. While EFCC may crackdown on suspects using the instruments of law, an excessive crackdown on criminal suspects, including 419 suspects entails employing illegal means to enforce the law and this excessive crackdown violates the basic principles of our criminal jurisprudence as can be found in criminal laws procedures and the Constitution.

“Excessive crackdown involves violating fundamental rights of 419 suspects, including torture and obtaining confessional statements involuntarily. Whereas Section 36(5) of the Constitution deems a suspect innocent until proven guilty. It is not for the suspect to prove his innocence. Section 36(1) and (6) guarantees a suspect a fair hearing. He will not get a fair hearing if he is subjected to an excessive crackdown. Excessive crackdown of suspects is therefore illegal and unconstitutional, no matter the motive or expected benefit,” Ogbui declared.

For Chris Okeke, since the EFCC is a creation of law, it follows, therefore, that it must operate within the law that created it and the law generally. According to Okeke, anything done outside of it is ultra vires.

He said: “Where what they do infringe on the rights of citizens, it becomes a breach of the right of such a citizen and on the part of the EFCC, it becomes an excessive use of and/or abuse of power.

Without mincing words, such excessive use of power is the demonstration of illegality on the side of the EFCC. It is unlawful and unconstitutional. A citizen who finds himself at the receiving end of excessive use of power is entitled to redress in the court of competent jurisdiction.

“It needs to be emphasised that EFCC is not above the law. Being a law enforcement agency of the government means its activities must be seen to be under the law and regulated by law. It cannot operate as a law unto itself.

“The courts, when called upon, must do the needful of protecting the victims of the abuse of power. This must be done by calling the EFCC to order each time the occasion calls for it.”

Responding to these allegations, the EFCC spokesman, Mr. Wilson Uwujaren explained that the agency has the mandate to fight economic and financial crimes. According to him, the law allows the agency to investigate, arrest and prosecute anyone found to have committed an offence.

The law as it is today does not designate any property or premises as being off-limits when it comes to arresting criminal suspects. Where a cybercrime suspect takes cover in hotel rooms, what do you expect the EFCC to do? Send invitation letters to them!

“The whole talk about EFCC breaking into hotel rooms has been over dramatised by a section of the media. The fact that one or two celebrities complained does not suggest a pattern. There are thousands of sting operations by the EFCC that were without incident, he stated.

EFCC, he maintained, is a responsible law enforcement agency with established Standard Operating Procedure (SOP), adding that arbitrary conduct and impunity by its officials are not part of the SOP.

On the issue of stringent bail conditions, the image-maker explained that the essence of bail is to prevent holding suspects longer than necessary, while the investigation is still ongoing. He added that bail is the right of suspects “and this right is accorded to all suspects as financial crime is not a capital offence.”

His words: “But bail attracts conditions that will ensure that the suspects are available when they are needed. Will The Guardian prefer the EFCC to be releasing suspects on bail without conditions? I am sure if a suspect is granted bail by the EFCC today, and tomorrow we say we cannot find the fellow, The Guardian will scream blue murder. Those who created bail and attached conditions, have reasons for doing so.”