Nigeria – A Hostile Business Environment
The Administration of Criminal Justice Act 2015 (ACJA) was signed by
President Goodluck Jonathan and came into force on May 13th 2015. It effectively repealed the Criminal Procedure Act which was prevalent in the Southern States of Nigeria and the Criminal Procedure Code which applied in the Northern States.
The essential purpose of the Act is to provide a unitary federal, law which efficiently administers the criminal justice system and their respective agencies, by providing efficacious dispensation of justice, whilst at the same time balancing the protected rights of suspects, defendants and victims as guaranteed by the Constitution of the Federal Republic of Nigeria rather like the ancient Roman goddess of justice -Justitia depicted at the beginning of this article.
The act applies to all Federal Government Agencies and is to be followed by all the courts except for the Court Martial. At Present anecdotal evidence suggests that EFCC officers believe it does not apply to them as they are governed by the Economic and Financial Commission 2004 Act.
The ACJA 2015 is arranged in 49 parts and divided into 495 sections with the amendment of sections which regulate arrest, warrants of arrest, investigation, trial, conviction, imprisonment, plea bargain, community service, parole, suspended sentences.
It is meant to be a holistic review of the entire criminal justice process from arrest, investigation, trial, custodial matters to sentencing and the guidelines for that.
By Section 10(1) of the repealed Criminal Procedure Act (which applied to the Southern States of Nigeria), the police could arrest without a warrant, any person who has no ostensible means of sustenance and who cannot give a satisfactory account of himself or herself .
The provision was meant to protect against vagrancy but the security agencies used this provision to arrest people indiscriminately with the result that a great many number of people who had not committed any crime found themselves in detention with no way to contact their next of kin, apply or pay for bail or even get legal representation.
The prisons became overcrowded and the justice system became clogged up. In order to address this issue the section was repealed it remains to be seen whether it will be observed by the security agencies.
The act also codified the common law principle that the police cannot arrest innocent relatives of suspects in lieu of the suspect and made it statutory.
Under the new ACJA 2015 a suspect is entitled to notification of cause of Arrest and the police officer or other persons making the arrest shall inform the suspect immediately of the reason for the arrest.
The act provides exceptions to the rule for example instances where a suspect is in the actual course of the commission of an offence and is pursued immediately after the commission of an offence or has escaped from lawful custody.
Outside of the exceptions what actually obtains in practice is that the security agencies send out invitation letters which if they are not honoured lead to your arrest.
The ominous looking letter usually arrives in the post in an innocuous looking envelope and never states what the suspect is actually being accused of or even if the person is being called as a witness.
An arrested suspect has the right to remain silent or avoid answering questions until after consultation with a legal practitioner or any other person of his/her own choice.
However Security agencies routinely extract confessions by trampling over their right to human dignity by beating them, shooting them in the leg etc. in order to get a suspect to make a statement and will often prevent a suspect from getting legal consultation before questioning.
Under the ACJA 2015 provisions a suspect is entitled to consult a lawyer of his/her choice or free legal representation by the Legal Aid Council of Nigeria where applicable and the detaining authority also has the obligation to notify the next of kin or relative of the suspect of his/her arrest. In reality this is never done and there are no consequences whatsoever for disobedience of the law by the security officers.
The Act provides that the recording of personal data of a suspect shall be concluded within 48 hours. This was essentially brought in to discourage the prolonged pre-trial detention of suspects by law enforcement agencies.
The ACJA also provides for the electronic recording of a suspect’s confessional statement on a retrievable video compact disc or such other audio-visual means again this is intended to bring more transparency to the procedure and to prevent those incidences where suspects claim they made the confession under duress or due to torture etc but currently none of the government agencies follow any of these procedures even though in some situations it might actually exonerate them.
Their refusal to follow the ACJA 2015 in some cases is due to the fact that s15 (4) is optional rather than mandatory. The language used in the act is “May” rather than the mandatory “Shall”.
So that Security Agencies routinely do not comply with the ACJA 2015 and there is no requirement for them to comply either because S15(4) provides that:
“Where a suspect volunteers to make a confessional statement, the police officers shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on a retrievable video compact disc or such other audio visual means.”
This makes the electronic recording of confessional statements optional, thereby defeating the purpose it was meant to arrest namely prevention of those incidences where suspects claim they made the confession under duress or under torture.
In the case of Desmond Nunugwo http://dailypost.ng/2016/08/15/efcc-killed-husband-hours-arrest-wife-late-defence-ministry-official/
The suspect was ill and he was not given medical attention. He died in detention and the widow was denied the right to stand surety for her husband whilst he was still alive because it was claimed she was a woman. She was told to go and get a man. By the time she returned with a man to stand surety he had died in detention. Section 163(3) of the ACJA 2015 provides that:
“A person shall not be denied, prevented or restricted from entering into recognizance or standing as a surety for any defendant or applicant on the ground only that the person is a woman”.
The question is if the EFCC had allowed the wife to stand surety for him and get him the required medical attention would he have survived? Secondly was it ethical for the EFCC to send the body to a mortuary without her knowledge whilst asking her to make “arrangements” for bail.
S15 of the ACJA is a new innovation of the act which is supposed to prohibit the arrest of Persons who are suspected of committing a civil wrong or breach of contract.
Many Nigerians view justice in Nigeria as a lackadaisical creature who lacks appreciation of the business realities and hardships they are facing. Currently the justice system gives preference to the loser of a judgement over a winner.
An application for stay of execution or proceedings can stall a matter for several years as the judges refuse to enforce Judgments for fear of consequences from influential Personages. Indeed two judges were infamously removed for actually enforcing Garnishee Proceedings and Judgement orders (Garnishee are a specie of execution, meaning the successful litigant actually gets his money).
This not surprisingly has led to business people turning away from the civil courts to the security agencies to settle contractual disputes thus resulting in an extremely hostile business environment in the country.
The current criminal justice procedure does not allow for applications for stay of execution or stay of proceedings however see S306 of the Administration of Criminal Justice Act 2015. This has meant a speedy dispensation of justice in criminal trials which is in conformity with international standards.
Consequently it has now become the standard practice for business men and women to write petitions to government security agencies couching what is essentially a contractual dispute or civil wrong as a crime.
If you are unfortunate enough to become entangled with the security agencies because you are disputing a debt or have an argument with your neighbour you may suddenly find yourself arrested and detained. During the interview you might notice that the questioning is almost exclusively around the contract or the civil wrong.
In some instances there need not be any actual crime involved because it comes under the broad umbrella of “investigation”. The Police, EFCC or security agency will then under the guise of “investigation” detain suspects without court order whether you are guilty or innocent of any proven crime until in sheer frustration you start throwing money at them just to get out of the uncomfortable conditions, woe betide you if you.
In many instances the debt itself may even be disputed, the sum under dispute is not provable or the person making the allegation does not have a single iota of evidence to back up the claim all he or she needs is a petition.
There are also several instances when different security agencies, Special Fraud Unit, Economic and Financial Crimes Commission, Special Anti-Armed Robbery Squad will all be investigating the same contract and the same petition between the same parties.
An example might be if you are “invited for questioning” by SFU but you had previously been arrested by EFCC, you may then be re-arrested by SFU for failing to honour your invitation, despite the fact your failure to honour the situation was as a direct result of the fact you were in custody either way your right to personal liberty will be severely curtailed without benefit of a trial.
There are several instances where a suspect will apply for bail at SFU (Special Fraud Unit), apply for bail at EFCC and apply for Bail to Police all based on the same Petition, the same facts and the same subject-matter.
Any written petition can result in a Security Agency detaining a business partner or even a love rival indefinitely and it is solely dependent on when they are able to apply for bail with the proviso that they report to the security agency enough times to destabilise their lifestyle and employment pattern.
At which point even if they are not guilty they are ready to pay to avoid detention just to keep their job, their business or their livelihood and their security agencies are well aware of this.
In other words the EFCC and other security agencies including the police have effectively become government sanctioned armed professional debt collectors with all the permutations, perks and connotations those words evoke to the reasonable man.
The Nigerian Politician James Ibori successfully escaped the clutches of the EFCC who were unable to get a conviction against him in any court in Nigeria however he was not as successful in the United Kingdom where he is currently being held at her majesty’s pleasure, put more simply it is more lucrative to shake down a law abiding citizen than to actually make the effort to prove a suspect guilty beyond reasonable doubt the latter not being a lucrative venture.
At the moment a suspect who is in such a situation i.e. arrested for a disputed debt should immediately get legal representation to file enforcement of Fundamental Rights as guaranteed by the constitution which is supposed to be the Grund Norm as it overrides the EFCC act.
In view of the economic situation prevailing in the country I envisage that the security agencies will continue to use the word “Investigation” to cover human rights abuses.
As the law stands the EFCC and security agencies routinely detain people on the flimisiest of excuses without a court order and the suspect need not have committed any crime.
See below link to the famous case of Joe Chinakwe man who was arrested and detained for naming his dog “Buhari”. Buhari also happens to be the name of the President of Nigeria.
The attempt to justify their actions by the police is even worse for whilst describing what could amount to a mere civil wrong no actual crime was been committed by the man in naming his dog Buhari. http://www.premiumtimesng.com/news/top-news/209519-real-reason-charged-man-named-dog-buhari-court-police.html
It is therefore blatantly obvious that the Nigerian security agencies are wholly incapable of distinguishing between a crime and a contractual dispute or civil wrong so that a suspect will need to apply to court to enforce his or her Fundamental Rights as soon as possible.
However Enforcement of Fundamental Rights is a shield and not a sword it cannot be used to stop a fraudulent act. Once it has been filed the security agencies have to wait for the court’s decision at which point it will then become imperative to prove in a court of law that what actually occurred is a breach of contract or a civil wrong for which the Security Agency had no right to make the arrest in the first place.
This Article is not in anyway intended to create any legal obligation by the writer. If you are arrested or find yourself in any situation with the security Agencies in Nigeria or indeed anyone else always seek Legal Advice. This article is solely my work any resemblance to any other work is simply coincidence. If you do wish to use it kindly inform me first. © Rotola Williams 2016.
Rotola Williams is the Managing Partner at Chief Ladi Rotimi Williams Chambers (www.clrwc.com) and was called to the Nigerian Bar in 1996. She obtained her Masters Degree in Law from the University of Buckingham in the United Kingdom. Her areas of specialisation include Alternative Dispute Resolution, Civil Litigation, Corporate Law and Property Law. She is currently a member of the Lagos State Independent Panel of Neutrals where she is engaged as a Mediator. She is also an accredited Member of the Corporate Affairs Commission in Nigeria, a Director of Graachi & Graachi Limited which provides Property Consultant Services and a Trustee of the M.L.E. Foundation. Please feel free to contact her on email@example.com.