The detention powers of the EFCC
The Economic and Financial Crimes Commission (hereinafter referred to as “the Commission”) has been in the eye of the storm in its fight against corruption especially, having to deal with allegations of selective anti-corruption prosecution; particularly with Mr. Olisa Metuh (PDP Spokesperson) continued detention and the release of Jafaru Isa (former military governor of Kaduna) an All Progressives Congress chieftain; in the famous ongoing Dasuki Arms deal investigation.
Jafaru Isa was granted bail, first on account of a deteriorating health and then, his reported refund of the sum of N100 million out of the $170 million handed out to him by Col Dasuki. On his part, Mr Metuh was alleged to have received N1.2 Billion, according to the Commission, has not returned any money. I must note also that the Commission also claims to have a Court Order to keep the PDP’s Spokeman for this long
The question therefore is; In criminal investigation bothering on financial crimes, whether the refund of stolen public funds is a criteria for non-prosecution (or a Commission-Pardon)? It must however be noted that the Commission had stated that Jafaru Isa was admitted to bail having fulfilled certain conditions. This assertion, notwithstanding, the foregoing has prompted a need to re-consider the provisions of the relevant laws in relation to the actions of the Commission.
The Commission was established by the Economic and Financial Crimes Commission (Establishment) Act 2004 (hereinafter referred to as “the Act”). Section 7 of the Act empowers the Commission to investigate any person, corporate body or organization who is alleged to have committed financial crime related offences. More so, for purposes of effective conduct of the functions of the Commission, particularly as it relates to the prosecution of offenders, the Act under Section 12 establishes the Legal and Prosecution Unit (a unit charged with the duty of engaging both substantial and procedural laws in the prosecution of offenders). However, it is important to note that the Act did not make express provisions allowing officers of the Commission to detain persons alleged to have committed financial crimes. That notwithstanding, the Commission through its Legal Prosecution Unit derive its powers to detain from the provisions of procedural laws, like the Administration of Criminal Justice Act 2015 (ACJA), which allows for detention of suspects in some cases for some days (see Sections 293 -299) and supporting Order from a Court of competent jurisdiction, when obtained.
The non-rhetorical question therefore is; whether the failure of Olisa Metuh to comply with the refund-request is a ground to justify his continued detention; and, whether Mr Isa’s cooperation to return these funds (and enjoys his freedom) is a violation of any provision of the Nigerian law(s). The 1999 Constitution of the Federal Republic of Nigeria (as amended) provides a direct response on this question when in Section 35, it provides that every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in cases of securing execution of an order of Court, where the offence committed is a capital offence and for other circumstances as provided under Subsection 1 of Section 35 which does not include the foregoing circumstance.
It is my view that with a careful interpretation of these provisions, one can conclude that the basis for the detention (or otherwise) of any person(s) alleged to have committed a financial crime is not based on such person’s cooperation with the process of investigation but the discretion of the Commission acting within the clear letters of the law. I therefore hold that the grounds for the non-release of Mr. Metuh, the reverse of which prompted the release of Mr. Isa is not one necessarily guided by the provision(s) of the law.
The position of the law remains that detention of any person for more than 48hours for a reason other than those provided under the Constitution is a violation of the person’s fundamental human right. Thus, for the Commission to continue the detention of Mr. Metuh, it must either arraign him or get an order of Court. Failure to do any of the foregoing can amount to a violation of his rights under the Constitution. More so, in terms of criminal liability, the compliance by Mr. Isa does not exonerate him from being prosecuted by EFCC for the offence for which he has also confessed to.
Tolulope Aderemi is a partner with the commercial law firm, Perchstone & Graeys.