– Oluwaseun Adedayo Omotoso*
Questions often arise about the extent of authority law enforcement agencies in Nigeria have while carrying out their statutory duties. Often times this debates revolve around the powers to forcefully enter into private or business premises. Indeed the Economic and Financial Crimes Commission (EFCC) and other agencies play a crucial role in maintaining law and order, but are their powers without limitations? This article delves into the legal framework, constitutional provisions, and practical considerations surrounding property rights and law enforcement in Nigeria.
Law enforcement agencies in Nigeria, especially the Economic and Financial Crimes Commission, consistently face criticisms for their handling of arrests, property seizures, and suspect parades. During a recent operation in Akure, Ondo State, agents of the Economic and Financial Crimes Commission apprehended 127 individuals accused of internet fraud. Allegedly, the operatives also damaged the closed-circuit television system upon arrival at the party venues. This latest incident highlights ongoing concerns about the conduct of law enforcement in Nigeria. It also underscores the importance of reviewing the powers of these agencies and the legal processes for apprehending and prosecuting alleged criminals.
The Administration of Criminal Justice Act 2015.
The Administration of Criminal Justice Act (ACJA) 2015 is the comprehensive legal framework that regulates criminal justice administration in Nigeria. Enacted in May 2015, the Act applies to all Federal Courts nationwide and the courts of the Federal Capital Territory (FCT), addressing arrest, investigation, trial, custodial issues, and sentencing guidelines.
The essence of this comprehensive legal document is to improve the management of criminal justice institutions, speed up the process of justice, prevent crime, and protect the rights of suspects, defendants, and victims. It also aims to ensure that everyone involved in the criminal justice system knows their responsibilities, powers, and boundaries. This was iterated by the court in Nnajiofor v. The Federal Republic of Nigeria [2019] 2 NWLR (Pt 1655) 157 at 171, where the Court of Appeal held that:
One of the objects and reasons for the act is to protect the rights of suspects and defendants for the interests and rights of suspects and defendants are as important as the rights of the victim and the society. After all, the suspect or defendant is presumed by the Constitution innocent until proved to be guilty…
The Administration of Criminal Justice Act, thus, offers a context for the enforcement of all substantive legal provisions as they relate to crime and criminal justice in Nigeria and the rights and powers of all involved.
Search
Law enforcement agents may need to conduct searches at premises where they believe evidence related to a crime is located in order to gather proof for prosecution.This typically begins with obtaining a search warrant.
A search warrant is an official order which law enforcement agents may obtain from a magistrate or judge, granting them authority to conduct a search on a person, building, vehicle, or other premises. This legal document allows them to enter and search specific locations for evidence related to criminal investigations or other lawful purposes. The warrant typically specifies the scope and purpose of the search, to ensure that the bearer conducts same within legal boundaries.
Part 18 of the Administration of Criminal Justice Act (ACJA) 2015 specifies the procedures for executing search warrants by law enforcement agents. The requirement for a search warrant is based on citizens’ rights to privacy and to prevent unauthorized interference with their property or persons.
In Hassan & Others v. The Economic and Financial Crimes Commission (2013) LPELR-22595, the court declared that:
Where the premises of a person who is alleged to have committed an offence is to be searched, such an exercise can only be conducted upon the said premises sequel to obtaining a valid search warrant. For any search conducted on a premises without a warrant is unlawful and unconstitutional because the said act would amount to an infraction of the constitutional rights to privacy as provided by Section 37 of the Constitution…
When to execute Search Warrants
According to Section 146 of the ACJA 2015, a search warrant remains in force until executed or cancelled by the court that issued it. Section 148 permits the execution of search warrants “anytime” of the day, including Sundays and public holidays.
Use of Force during Execution of Search Warrants
While the law allows the use of force when executing search warrants, these powers are given with adherence to strict legal guidelines. According to Section 149 (1) of the ACJA, there is an obligation on individuals in a building to grant law enforcement officers unrestricted access for a search. This provision implies that officers should seek permission to enter upon arriving at the location under scrutiny. Additionally, Section 149 (2) of the Act permits the use of reasonable force if access is denied despite a prior request. In cases where a building is locked, authorities are allowed to forcibly open doors or windows to carry out the search warrant.
Arrests.
Sections 3 and 4 of the ACJA outline the authority to arrest an offender. The Act specifies the procedures, from arrest to conviction, guiding law enforcement agents. Sections 5 to 8 detail the rights of suspects that law enforcement agents must respect at all times. These provisions aim to prevent abuse of power by law enforcement agents, safeguarding citizens’ liberty as guaranteed by the Constitution. Additionally, the Act promotes dignified treatment of suspects pre-trial and during trial.
In Fawehinmi v. Inspector-General of Police (2002) 7 NWLR (PT. 767) Page 606 at Page 670 Paragraphs F-H, the Supreme Court made it clear that:
… in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone caution a suspect before the police look for evidence implicating him.
The implication here is that while law enforcement agents have the authority to arrest suspected offenders, these powers have limits and the law sets appropriate boundaries.
Valid procedure for arrests:
In Ishenge v. C.O.P. and another (2019) LPELR-48390(CA), the Court held that:
The trend amongst the security agencies in Nigeria of arrest before investigation is condemnable as unconstitutional. While the power of the Police to investigate an allegation of crime against a suspect is unfettered, the police which is established by Section 214 of the Constitution must carry out their duty in accordance with the dictates of the Constitution as without the Constitution there will be no Police Force…”
Also, in the Economic and Financial Crimes Commission v. Mr. Ejenavi Jonah Oyubu & others (2019) LPELR-47555(CA) 2019, made it clear that:
…the proper procedure is to do a proper investigation and if it shows that a person has a hand in crime then he can be arrested and brought to court within 24 hours or maximum of 48 hours. It is inappropriate for law enforcement agents to arrest a person and while in their detention, they now fish around for evidence to prosecute him…
Further, in Nigerian Copyright Commission and others v. Musical Copyright Society of Nigeria and others (2017) LPELR -50743 (CA), the court made it clear that:
In law, an arrest and detention will be illegal and or unlawful if done against the requirements of the rule of law and in breach of procedural guarantees in the relevant and applicable laws.
It is clear from the above that while law enforcement agents have the authority to arrest offenders, the need to gather adequate evidence to build a case before they carry out arrests. Law enforcement agents, such as the Economic and Financial Crimes Commission, do not have the statutory powers to arrest individuals and keep them in custody indefinitely and as they please while they fish for evidence. Arrests follow investigations, not the other way round.
Breaking into premises to arrest suspects
Section 43 of the Constitution of the Federal Republic of Nigeria protects the right to own private property. Section 37 further guarantees citizens’ right to privacy of their homes, correspondence, telephone conversations, and telegraphic communications. These provisions collectively ensure that citizens are generally safe from harassment within their premises.
By law, law enforcement officers have the authority to enter premises where they reasonably suspect an offender may be hiding while pursuing their duties or apprehending suspects. However, such authority, along with others, is subject to specific boundaries to uphold the rights of citizens.
Section 12 of the Administration of Criminal Justice Act empowers an arresting authority to break into premises for the purpose of effecting arrest. This power, however, only becomes available as a last resort when the law enforcement agent makes and the occupant of the building denies a request for entry.
Section 12(1) and (2) of the ACJA provide that:
(1) Where a person or police officer acting under a warrant of arrest or otherwise having authority to arrest, has reason to believe that the suspect to be arrested has entered into or is within any house or place, the person residing in or being in charge of the house or place shall, on demand by the police officer or person acting for the police officer, allow him free access to the house or place and afford all reasonable facilities to search the house or place for the suspect sought to be arrested.
(2) Where access to a house or place cannot be obtained under subsection (1) of this section, the person or police officer may enter the house or place and search it for the suspect to be arrested, and in order to effect an entrance into the house or place, may break open any outer or inner door or window of any house or place, whether that of the suspect to be arrested or of any other person or otherwise effect entry into such house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot obtain admittance.
The above implies that law enforcement agents must, upon arrival at the location of the arrest, inform the occupant of their presence and request entry. Only if the request for entry is denied do they have the authority to forcibly enter the premises for the arrest. It is clear thus that the aggressive operations recently conducted by operatives of the Economic and Financial Crimes Commission, indiscriminately breaking into private premises while pretending to arrest suspected internet fraudsters, are illegal and violate the laws of the Federal Republic of Nigeria.
Destruction and Confiscation of Property during arrest
Multiple reports indicate that operatives of the Economic and Financial Crimes Commission (EFCC) actively confiscate and destroy evidence of rights violations during suspect arrests. The claims are that these operatives take away or destroy Closed Circuit Television recorders and cameras at the scene of arrests. Under Nigerian law, these actions constitute forceful acquisition and malicious damage to property.
In Chidolue v The Economic and Financial Crimes Commission [2012] 5 NWLR (PT 1292), the court clarified that the Economic and Financial Crimes Commission (EFCC) does not possess statutory powers to confiscate the property of a person suspected of committing a crime unless a court of competent jurisdiction declares the person guilty of the crime. This same view was reiterated by the Court in Senator Peter Nwaoboshi & ors v. Federal Republic of Nigeria (2018) LPELR-45107(CA) and Kazeem Olwadamilare Shitta v. The Economic and Financial Crimes Commission (unreported), delivered 14th June 2024.
Conclusion
It is evident from the above that Law enforcement agents derive their authority from the law and must exercise it within legal limits.
The Administration of Criminal Justice Act (ACJA) 2015 plays a crucial role in shaping Nigeria’s criminal justice system. By prioritizing fairness, efficiency, and the presumption of innocence, it aims to balance the rights of suspects and defendants with societal needs.
Comprehending the legal framework concerning search, arrests and the use of force is vital in protecting citizens’ rights and safeguarding them from law enforcement agents’ abuse of power. It is essential for law enforcement agencies to abide by the law while ensuring public safety.
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- Oluwaseun Adedayo Omotoso is a Legal Practitioner, scholar and social commentator based in Lagos Nigeria.