CEM OPINNION, LEGAL| In the realm of law enforcement, the manner in which suspects are summoned for investigation is a delicate balance between upholding justice and respecting individual rights.
Recent events, such as the controversial arrest of Yahaya Bello, have sparked intense debate regarding the ethical and legal dimensions of such actions. As we delve into the intricacies of summoning suspects, it becomes imperative to assess whether these practices align with the principles of fairness and legality enshrined in our laws.
When and How to Summon a Suspect for Investigation by Law Enforcement Agencies
I condemn any brute and sensational arrest of a suspect such as Bello. It does not matter the station of life of such suspect, whether high or low.
On October 8, 2016, hooded DSS operatives viciously and savagely broke into the homes of some Justices of the Supreme Court and other Judges the wee hours of the morning. I had condemned it in very strong words.
Some of the victims like Justice Sylvester Ngwuta, JSC (of blessed memory) never recovered from the shock. He later died. Others took early premature retirement. Was the Commission therefore right in attempting to arrest Bello in the manner it did as some commentators have approved in their writeups? I think not.
The relevant provisions of the law such as Sections 8(1) of the Anti-Torture Act, 2017; Section 6 of the Administration of Criminal Justice Act (ACJA) 2015 (applicable in Abuja, the FCT); and Section 35(2)&(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the sum total of which enjoin the fair and humane treatment of a suspect whether during his /her arrest, investigation, detention pending trial and arraignment.
Was a bench warrant necessary against a suspect on whom charges had not been served as in the Bello scenario? I think not. Let us look at some decided cases on this.
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In Usani v. Duke [2006] 17 NWLR (Pt.1009)610 the Court of Appeal held thus:
“A bench warrant is a discretionary power of a court invoked to secure the attendance as in this case of an unwilling witness under the threat of contempt of court to give evidence on any area of a suit within his knowledge. It is not a discretion which is exercised as a matter of course. The court has to be satisfied that there is absolute necessity to procure the appearance of the witness in court. The lower tribunal based its refusal to issue bench warrant on non-compliance with section 229(2) of the Evidence Act.” Per Adekeye, J.C.A. (P. 38, paras. B-E)”.4
In Apugo v. FRN (2017) LPELR-41643 CA, the Court of Appeal eruditely held that:
“Section 382 (4) and (5) of the ACJA provides for how to serve a charge and notice of trial on a Defendant, who is not in custody, … In this case, the Respondent had filed a motion exparte under section 382(5) of the ACJA 2015 to serve Appellant by substituted means.
That motion was not argued, but the trial court jumped the gun and ordered for the bench warrant to arrest the Appellant: and when it found out that that was wrong, it suspended the implementation of the bench warrant (instead of setting it aside) the trial court yet still ordered the Appellant to appear on the next adjourned date to answer to the Charge against him, pursuant to section 87 of the ACJA 2015.
As earlier discussed and held above, I do not think the trial court had the vires to make such order, in the circumstances as I think it went beyond its role as impartial adjudicator, to that of the Prosecutor or Police or EFCC to forcefully produce the Accused person, without serving him with any charge or notice of trial.
I do not think section 87 of the ACJA 2015, can apply without recourse to section 382 of the same Act which requires a Defendant to be served personally or by substituted means with the charge or information and notice of trial. I believe it is upon compliance with section 382 (3) (4) and (5) of the Act where there is a pending charge, that the trial court can have the powers to apply the section 87 of the Act which says:
“A court has authority to compel the attendance before it of a suspect who is within the jurisdiction and is charged with an offence committed within the state Federal or the Federal Capital Territory, Abuja, as the case may be or which according to law may be dealt as if the offence had been committed within jurisdiction and to deal with the suspect according to law”. Per MBABA J.C.A J.C.A (Pp. 46-48, paras. F-F)’’.
These domestic laws are reinforced by a regional (in fact, continental) statute – the African Charter on Human and Peoples Rights – Article 7 of which obliges the State (and all other persons) to respect the rights of every individual to have his (or her) cause heard. This right encompasses the following, inter alia:
(i) The right to appeal to competent national organs against violating his fundamental rights;
(ii) The right to be presumed innocent until proven guilty by a competent tribunal;
(iii) The right to defence including by Counsel of one’s choice;
(iv) The right to be tried within a reasonable time by an impartial court or tribunal.
The importance of this statute is often overlooked by many Nigerians because, apart from the Constitution, it is superior to virtually every local or municipal law – including the EFCC (Establishment) Act itself. See ABACHA VS FAWEHINMI (2000) 6 NWLR part 660, pg 228, where the Supreme Court held that the Charter possesses “greater vigour and strength than any other domestic statute… (accordingly if there is a conflict between it and another statute its provisions will prevail over those of the other Statute”)
It is in this context that I believe the Commission’s tactics in attempting to arrest Bello ought to be situated. While no one quarrels with the Commission’s full mandate to tackle economic crimes, the way and manner in which it does so must however, not portray any impunity or suggest that it is above the law.
After all, the Commission’s motto is “No one is above the Law”. To that extent, the fact that the person at the centre of the present controversy is a former Governor is irrelevant: it merely hugs the headlines for that reason. Afterall, he has since lost his immunity under section 308 of the 1999 Constitution, upon vacating office.
However, once a person has been charged to court as Bello has, he becomes the subject of the court which becomes seized of the matter. His availability in court is thereafter controlled by the trial court, and not another through a bench warrant.
Many a time, it is argued that the court cannot restrain government agencies from arresting, investigating or prosecuting suspects. This is far from the truth as it depends on the facts of each case. For example, the Court of Appeal in OKEKE v. IGP & Ors (2022) LPELR-58476(CA) 1 at Pp. 9 paras. A, Per NWOSU-IHEME, J.C.A (as she then was), relied on a decision of the same Court to hold that the Police can be restrained from the improper use of its powers. In the unreported case of LUNA V. COMMISSIONER OF POLICE RIVER STATE POLICE COMMAND in Appeal No CA/PH/216/2004, the Port-Harcourt Division of the intermediate court held:
“… Notwithstanding the power of the Police as spelt out in Sections 4 and 24 of the Police Act, where this Power is improperly used, the Court can stop the use of the power for that improper purpose, as that would no longer be covered by Section 35(1) (c) of the 1999 Constitution. In other words, an order restraining the Police from arresting on some particular occasion or for some particular improper purpose may be made by the Court.”
Stay glued for part 3
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