EFCC Must Be Called To Order: A Detailed Juxtaposition by Stanley Nnamdi Alieke Esq.
Moreover, according to 148 of the ACJA, when a law enforcement agent obtains a warrant or purportedly acting in accordance with the warrant must be executed during the day.
The prevalence of the members, privies, and agents of the Economic and Financial Crimes Commission (EFCC) flaunting the law, breaking the instituted rule of law, and not adhering to due process of the law is getting out of hand and they must hence be called to order and get their tail tamed for good or they risked being scrapped like their colleagues in the defunct State Anti Robbery Squad (SARS). The members of the Economic and Financial Crimes Commission are currently undertaking the journey the members of the State Anti Robbery Squad undertook which turned them into not just a nightmare but torn in the flesh of the people of Nigeria which led to them being scrapped.
The Economic and Financial Crime Commission was created in 2004 by the Economic and Financial Crimes Commission (Establishment) Act of 2004 (hereinafter referred to as the EFCC Act) by the then President and Commander-in-Chief of the Armed Forces, President Olusegun Obasanjo which repealed the Financial Crimes Commission (Establishment) Act of 2002.
Since its creation, they have been charged to carry out the following functions as conspicuously provided in S.6 of the EFCC Act;
6(a) the enforcement and the due administration of the provisions of this Act;
(b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.;
(c) the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority;
(d) the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes related offenses or the properties the value of which corresponds to such proceeds;
(e) the adoption of measures to eradicate the commission of economic and financial crimes;
(f) the adoption of measures which includes coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
(g) the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes;
(h) the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies, or groups involved;
(i) the determination of the extent of financial loss and such other losses by government, private individuals or organizations;
(j) collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning –
(i) the identification, determination, of the whereabouts and activities of persons suspected of being involved in economic and financial crimes,
(ii) the movement of proceeds or properties derived from the commission of economic and financial and other related crimes;
(iii) the exchange of personnel or other experts;
(iv) the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;
(v) maintaining data, statistics, records, and reports on the person, organizations, proceeds, properties, documents, or other items or assets involved in economic and financial crimes;
(vi) undertaking 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 appropriate intervention measures for combating same;
(k) dealing with matters connected with the extradition, deportation, and mutual legal or other assistance between Nigeria and any other country involving Economic and Financial Crimes;
(l) The collection of all reports relating to suspicious financial transactions, analyze and disseminate to all relevant Government agencies;
(m) taking charge of, supervising, controlling, coordinating all the responsibilities, functions, and activities relating to the current investigation and prosecution of all offenses connected with or relating to economic and financial crimes;
(n) the coordination of all existing economic and financial crimes, investigating units in Nigeria;
(o) maintaining a liaison with the office of the Attorney-General of the Federation, the Nigerian Customs Service, the Immigration and Prison Service Board, the Central Bank of Nigeria, the Nigeria Deposit Insurance Corporation, the National Drug Law Enforcement Agency, all government security and law enforcement agencies and such other financial supervisory institutions in the eradication of economic and financial crimes;
(p) carrying out and sustaining rigorous public and enlightenment campaigns against economic and financial crimes within and outside Nigeria and;
(q) carrying out such other activities as are necessary or expedient for the full discharge of all or any of the functions conferred on it under this Act.
They are also mandated and granted with powers that enable them to carry out their functions and duties without hindrances and those such powers as provided for in S.7 of the act;
7(1)(a) cause investigations to be conducted as to whether any person, corporate body or organization has committed any offense under this Act or other law relating to economic and financial crimes;
(b) cause investigations to be conducted into the properties of any person if it appears to the commission that the person’s lifestyle and extent of the properties are not justified by his source of income;
The Commission is charged with the responsibility of enforcing the provisions of –
(a) the Money Laundering Act 2004; 2003 No.7 1995 N0. 13
(b) the Advance Fee Fraud and Other Fraud Related Offences Act 1995;
(c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended;
(d) The Banks and other Financial Institutions Act 1991, as amended; and,
(e) Miscellaneous Offences Act
(f) Any other law or regulations relating to economic and financial crimes, including the Criminal code of penal code.
It is worthy of note the EFCC and its members have been exercising its functions and have been exhuming their statutory granted powers to the latter but the big question which metamorphosed into this subtle critique is “if the EFCC, its agents, members, and privies have been exercising this statutorily granted powers judicially and judiciously”.
According to Lord Acton, a British historian, ‘power corrupts and absolute power corrupts absolutely. This quote is not far from the truth taking a look at autocratic and authoritarian society and that the reason for the adoption of a democratic and egalitarian society where will be checks and balances, separation of powers and regulations, and regulatory machinery for those at the helm of powers.
For us to us to objectively and subjectively and the above-raised question ‘if the EFCC as an agency, its agents, members, and privies have been exercising their statutory granted powers, and carrying out their law provided functions having recourse to the due process of law or obeying the regulations put in place in order for them not to become power-drunk and abuse their powers? We can further break down the above question by further asking ourselves this question that is heavy on people’s minds right now which is ‘whether the agency or its agents and privies has such power and function to arrest, intimidate, search and harass law-abiding members of the society without warrants at dead hours of the night?’
What does the law say in this circumstance?
According to the law, you can’t arrest, conduct a search on individuals, homes, private properties, places of business, hotels, etc. without arrest/search warrant which must be issued by a judge, a magistrate, or a justice of the peace within the jurisdiction of where the suspect resides or where the suspect is to be searched or arrested.
According to the law, the EFCC has the power to investigate, arrest and prosecute offenses relating to financial crimes which the cybercrime according to the cybercrime act of 2015 comes under the purview as provided by the EFCC but they must do this with recourse to law and regard to the due process of the rule of law.
The question they have been bugging people’s minds is ‘whether the Economic and Financial Crimes Commission (EFCC) has the power to search and arrest individuals, conduct searches on private properties, homes, places of business, etc. with search and arrest warrant’?.
The answer to the above question is succinctly provided for in the regulatory laws of the Administration of the Criminal Justice Acts of 2015 (which has been adopted by various states of Nigeria, hence, Administration of Criminal Justice Laws) which are regulatory laws regulating the enforcement of laws and orders of law enforcement agencies and stipulating the due process law enforcement agents must follow while carrying out their statutory functions and powers of enforcement of laws and orders.
The Administration of the Criminal Justice Act, 2015 ubiquitously and conspicuously provided for a legal document called ‘warrant’. A warrant is a legal document or fiat issued by a judge or a magistrate to a law enforcement agent or an individual to arrest or conduct a search on an individual or property. This fiat or legal document called Fiat was first made mention by the Administration of the Criminal Justice Act of 2015 in part 3.
The law further provided in part 18 of the Acja, 2015 that a warrant must be issued by either a judge, a magistrate or a justice of peace and a law enforcement agent be it the highest-ranking member of the agency or any other member of the agency has no such power whatsoever to issue a warrant of arrest, it must be issued by a judicial officer.
Further in part 18 of the ACJA, specifically in S.148, it is the ambiguous provision of the law that when a law enforcement agent obtains a warrant or purportedly acting in accordance with the warrant must be executed during the day.
The law enforcement agencies like the EFCC carrying out their statutory functions and exercising their statutory powers as provided in s. 6&7 of the EFCC act, 2004 and duties of the police as provided in s.4 of the Police Act, recourse must be made to the part 3 and part 18 of the ACJA of 2015.
By this implication, the act of the agents of the EFCC as a commission or through its agents or privies busting and breaking into houses, private properties, hotels, etc at dead hours of the night is tantamount to the commission and its members acting ultra vires. If the members of the commission are ignorant of these regulatory laws, then it will be an honor for us to educate them about the laws and bring to their attention that there’s fiat or legal document known as a warrant which can either be an arrest warrant or a search warrant and the agent conducting the search or the arrest must be in possession of such document specifically issued against the person or property which the arrest or search is been a carried against and that arrest or search must be carried out during the day according to the provisions of S.148 of the Acja 2015. They should also take note that merely flipping out their Identity Cards to show there from the agency doesn’t amount to an arrest or search warrant, the arrest must be done and search conducted with a Warrant which is properly issued by a member of the judiciary who has been empowered by law to issue such fiats within the jurisdiction such arrest or search is to be carried out.
The rascality of the officers of the EFCC agents going about busting into houses, homes, and hotels with heavy arms, creating scenes, scaring innocent individuals, and chasing around law-abiding citizens that are going about their businesses in the excuse of they suspected that there’s a financial criminal around the corner amount to the members of the commission acting ultra vires, abuse of power and power drunk.
There have been numerous cases of the members of the commission harassing, intimidating, and breaking into houses and private properties heavily armed like common arm robbers whose intention is to rob, to kill, and to destroy but we will mention a few.
Sometime in July 2021, the men of the EFCC broke into a renowned hotel in Lekki, Lagos, and arrested the customers of the hotel after threatening and intimidating the hotel staff to get out of their way. Also, in August 2021, a popular Big Brother Naija star came to the social media to philippic how the members of the commission broke into her apartment at the wee hours of the night heavily armed which caused the mother to have a panic attack in the guise that they suspected that there was a financial crime that lives in the apartment. In the same August 2021, a popular movie maker also shared on her Instagram where she narrated how the members of the agency broke into her hotel room at night after having a long day at a movie location, they broke into her room at midnight while she stacked naked and having a sound sleep, she woke up from her slumber to her amazement she found some men heavily armed staring at her while she was naked alone in her room, the men of the agency having recognized her to be a popular Movie star apologized and told her that they thought there are some ‘yahoo boys’ in her room.
The most recent case is the one that happened on the 16th of September, 2021, the men of the EFCC broke into a popular hotel in Enugu which is a state in the eastern part of Nigeria, harassing and intimidating the hoteliers to get out of their way and arresting and beating up the hotel customers who were in the hotel at the midnight. There are even foreign investors who came into the country the previous day and decided to check into the hotel and they experienced the ugly incident that night.
All these are some of the numerous cases of how the members of the commission have been acting without recourse to the due process of law with so much impunity and rascality clearly acting above the powers accorded to them by the EFCC act of 2004 which is the establishment act and the regulatory laws of the Administration of the Criminal Justice Act of 2015 which they derive some of the powers from to make an arrest.
Be it as it may, the EFCC in no doubt has the power to investigate, arrest and prosecute offenses relating to financial crimes which the cybercrime according to the cybercrime act of 2015 comes under the purview but they must do this with recourse to law and regard to the due process of the rule of law which is ‘ search and arrest must be carried out by a warrant which was issued by a judge, a magistrate or a justice of the peace within the jurisdiction the search or arrest is to be carried out.
According to the law, taking into consideration the Administration of the Criminal Justice Act of 2015 and the Administration of the Criminal Justice law of 2015 (hereinafter referred to as ACJA/ACJL) which are regulatory laws regulating the enforcement of laws and orders of law enforcement agencies and stipulating how the due process law enforcement agents must follow while carrying out their statutory functions of enforcement of laws and orders.
According to the ACJA of 2015 specifically part 3 of the act, there’s the provision for f a legal document called a warrant. A warrant is a legal document or fiat issued by a judge or a magistrate to a law enforcement agent or an individual to arrest or conduct a search on an individual or property.
Therefore, according to 142 of the ACJA, a warrant must be issued by either a judge, a magistrate, or a justice of peace and a law enforcement agent be it the highest-ranking member of the agency or any other member of the agency has no such power whatsoever to issue a warrant of arrest, it must be issued by a judicial officer.
Moreover, according to 148 of the ACJA, when a law enforcement agent obtains a warrant or purportedly acting in accordance with the warrant must be executed during the day.
By this implication, the act of the agents of the EFCC busting into houses at dear hours of the night is tantamount to the commission and its members acting ultra vires.
If the members of the commission are ignorant of these regulatory laws, then let’s bring to their attention that there’s fiat or legal document known as a warrant which can either be an arrest warrant or a search warrant and the agent conducting the search or the arrest must be in possession of such document specifically issued against the person or property which the arrest or search is been a carried against and that arrest or search must be carried out during the day according to the provisions of S.148 of the ACJA.
It should be also be noted that merely flipping out their ID to show there from the agency doesn’t amount to an arrest or search warrant, the arrest must be done and search conducted with a Warrant which is properly issued by a member of the judiciary who has been empowered by law to issue such fiats within the jurisdiction such arrest or search is to be carried out.
The members of the commission must be called to order, the senior officers must give the filed officers proper orientations and educate them to follow the due process so flaw while carrying out their functions which the EFCC act has empowered them to in order not to bring the commission to disrepute and ridicule the good works which the commission has painstakingly done and are still doing which is visible to the blind and audible to the deaf in the fight against corruption, cybercrime, embezzlement of public funds by those occupying public offices, money laundering, racketeering, etc, and the commission shall speedily weed out the black sheep’s amongst them that want spoil them a good name which the agency is built over the years and renew the faith which the members of the public have on them.
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