Of EFCC, Passports And Court Orders

By John Ajayi

IT has become the usual practice for officials of the Economic and Financial Crimes Commission (EFCC) to seize the international passports of suspects they are investigating. How this became the standard practice, we don’t know. What we know is that every Nigerian is entitled to his/her fundamental human rights. The concept of fundamental human rights seems to have been lost on law enforcement agencies in Nigeria. Of course, there are limits to these rights, but until a person is convicted by a competent court of law, this person enjoys the presumption of innocence. The Black’s Law Dictionary, 9th edition, explains the concept of the “presumption of innocence” to mean that a person cannot be convicted of a crime unless the government proves guilt beyond reasonable doubt. And, as such, a person who has not been convicted of a crime should not be treated like a convicted criminal. Of course, we are not unaware that there are exceptions to every general rule in law. For instance, the Constitution of the Federal Republic of Nigeria 1999 (Third Alteration), in section 41(1), accords every Nigerian the right to freedom of movement. However, in subsection 2, the limitations to these rights are clearly stated.

Subsection (2) and (a) state that: (2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society -(a) imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria.” The question now is: who has the power to ultimately impose the restrictions? The police? The EFCC? Or any law enforcement agency? We should never forget that the same Constitution in section 35(5) states that where a person is arrested, he must be taken to a court of competent jurisdiction within 24 hours, and where a competent court is not within the radius of 40 kilometres, the law enforcement agency has a maximum of two days to take the person before a competent court. What we can easily glean from the above is that as much as a law enforcement agency has the power of arrest, their power to impose restrictions is clearly limited. It is now for the competent court to determine if the law enforcement agency has enough evidence to support the arrest and any subsequent detention or restriction of the suspect’s movement.

The Supreme Court in the landmark case of Director of SSS & Anor v. Agbakoba (1999) LPELR-954(SC) clearly held that the ownership of an international passport is a corollary of the freedom of movement. A “corollary” can be said to be a natural consequence or the result of something else. In this matter, the ownership of an international passport is a natural consequence of the right to the freedom of movement. Flowing from the arguments above, only a competent court of law can ultimately impose restrictions on the freedom of movement. So, who gives the EFCC the power to arbitrarily seize the international passports of Nigerians whose rights are consciously guarded by the sacred grundnorm which is the constitution? The Supreme Court in 2014 was clear about who has the power to impose restrictions on the freedom of movement of a Nigerian. In Azuh v. Union Bank (2014) LPELR-22913(SC), the learned justices of the apex court stated that:

“When criminal charges are pending against an accused person, his right to freedom of movement pending the determination of the case may be curtailed by the Court seised of the matter or by a higher court, depending on the nature of the offence” The rationale behind the position of the law is easy to deduce. If any law enforcement agency feels like a person’s right to travel should be restricted, then such agency must have enough evidence to back up their prayers before the Honourable Court. Seizing people’s passports under the guise of an ongoing investigation can have dire consequences for the victims of this arbitrary act. For instance, someone who could not have access to urgent and specialised medical attention or a person who misses an important appointment in another country. To be fair to the EFCC, they want to do their jobs and ensure offenders are brought to book. Of course, we all want a drop in the crime rate. However, there are procedures stated in law to achieve this objective. Section 6 of the EFCC Act, maintains that the Agency must investigate first, and from the report of the investigation, they can arrest, and not the other way around. It is arbitrary to arrest, detain, and then commence investigation with the hope of getting something. Surprising as this may sound, many have been victims of this haphazard approach to law enforcement.

In other jurisdictions, there are internal affairs units which ensure the sanctity of human rights in the dealings of their agencies. These units serve as watchdogs that can investigate cases of abuse of power and the use of unethical methods to elicit information from suspects. It is my opinion that until there are effective punitive measures to sanction abuse of rights, we may keep having this problem. Law enforcement agencies need to be aware that they are creations of law and must abide strictly within the confines of law. The EFCC Act or that or any agency for that matter does not give them the power to arbitrarily seize people’s passports without a court order. This is the law and it must be obeyed.

Ajayi works as a legal practitioner in Lagos.