WHY IS DSS REFUSING TO CHARGE EMEFELIE WITH THE OFFENCES HE IS RUMOURED TO HAVE COMMITTED?
For certain people, by the position they held, when they commit the offence, it usually involves other people that the government is not ready to expose or prosecute. A Governor of the Central Bank cannot commit the type of offences Emefiele is rumoured to have committed without involving so many people, including people the government would want to protect. When such people commit the offence, instead of charging them to court, the government will set up a special panel to try their case. That is what happened in the case of Magu, former Chairman of EFCC. He was accused of the worst crimes ever. Then he was arrested and detained and investigated by a panel but was never charged to court. That is happening now in the case of Bawa, the most recent Chairman of EFCC. And certainly, that is what is happening with Emefiele. The only difference is that Emefiele wants to enforce his rights instead of keeping quiet like Magu and Bawa. If you try these men people in an open court, they might reveal things that would embarrass the government. So, before you take them to the open court, you will try to control what they would say. In other words, you will make a deal with them and give them a soft landing so that they won’t expose certain people.
Let us imagine several scenarios. What offences do you think the Governor of the Central Bank could commit? Whatever offence, it must involve concerted efforts or a team of people acting in concert. It would involve some Bank MDs. It would involve several billionaires. The government is not ready to prosecute all those people because some of them are still government insiders. I can imagine that through the foreign exchange rate differential between the official rates of forex and the parallel market rates, Emefiele was stealing an average of twenty Million dollars every day.
This is how he could have done it easily: He would use a proxy to buy 10 Million Dollars at the official rate of N250 per $1. Then he will sell the $10 Million to the Bureau de Change at N500 per $1. That means that Emefiele makes 10 million dollars out of every 10 Million dollars he trades that way. This is just one of the many ways the CBN Governor could corruptly enrich himself. But this sort of transaction will involve a lot of people even within the CBN being involved.
Also, there must have been many powerful people who got rich through such corrupt operations. How did DSS get foreign exchange to buy their equipment? It would have involved some corner-cutting in CBN. How did Dangote get his foreign exchange? CBN has been allocating foreign currency to all these big men who would resell them at the parallel market. So, many, many people will go down if Emefiele speaks in an open court. So, DSS is careful not to open a can of worms that would implicate the DSS top brass, including many IG of police, many Senators, many Ministers, EFCC Chairmen, DSS heads, some senior judges, etc. And all such transactions are illegal and corrupt.
Also, you need to know how the legal system works. Once a case is charged to court, the DSS or the police or EFCC loses significant control over the court. The control over a controversy/case passes from the Executive arm of government (DSS) to the Judicial arm of government (the courts). In a developing country like Nigeria with a high level of corruption, there is some rivalry or jealousy between the two arms of government over who should control the cases and disputes between individuals and groups. By the Constitution design, it I meant that both the Executive arm (DSS) and the Judicial arm (the court) will have control over cases at different stages.
At the initial stage, called the investigation stage, the Executive (DSS, police, EFCC, etc.) controls the case, and at a later stage in the case called the adjudication stage, the court takes over. So, the question is to identify the appropriate transition point when a case is to move from the investigative stage to the adjudicatory stage. DSS wants the investigative state prolonged, while the courts want the adjudicatory stage started sooner.
Normally, there is no timeline for the investigative stage to end. So, the DSS can investigate a case for as long as it likes. It can take 20 years to investigate a case. However, once the investigation activities result in an arrest, the DSS would have only 24 hours to submit the case to court for adjudication. Arrest tries adjudication, no further investigation. So, as long as the DSS has not arrested anybody, it can continue to investigate without transitioning to the adjudicatory stage.
This is why the law expects an investigation to be completed before a person is arrested. Once you arrest a person, you are forced to charge him in court. That is how it is supposed to work and that is how it works in developed countries. The police, EFCC, DSS etc. cannot arrest a person and fail to transition from investigation to adjudication. In other words, DSS can control an investigation, but it cannot control the liberty of a person. Only the court can control the liberty of the citizens. So, once your investigation leads to an arrest or deprivation of liberty, the judiciary ought to step in.
What is happening in Nigeria is an abnormality in the way cases move from investigation to adjudication. The DSS arrests a person and somehow fails to transition the case from investigation to adjudication. That is why you have this incredible tensions when a person is detained without charging him in court. In a bizarre and macabre sort of way, the DSS and the other law enforcement agencies try to delay the moment when they should hand the case over to the court.
They have done this in many strange ways. First, they have in the Terrorism laws a provision that allows DSS to get a court order ex parte to detain a person for 90 days without charging the person to court. All they need to do is to claim that the person was suspected of involvement in terrorism. Also, over the years, the police and the EFCC have been able to go to court and obtain an order to detain a person in what they call a holding charge.
You can see immediately how the Nigerians have been rolling back the hands of human civilization. It took humanity centuries to evolve this system of checks and balances to ensure that only the courts can decide to deprive a person of his liberty. That was how we came upon the constitutional provision that the police MUST charge you to court within 24 hours after arrest. It is an idea based on the high value we place on human liberty and freedom. One thing I know very well about Nigerian officials is that they are so adept at how to undermine their laws.
For nearly ten years, I was the lawyer representing the Nigerian Government in the United States. During that period, I worked with every Attorney-General. In less than two months after each of them was appointed, he would fly to meet me in the US for a briefing on the various cases we had for the Nigerian Government.
I got a good opportunity to work with Nigerian Attorneys-General – Olujimi, Bayo Ojo, and Michael Oandoaka. There is one thing all Nigerian officials have in common. They are always looking for ways to violate their constitution without being seen to do that. In other parts of the world, the Attorney-General must uphold the constitution of his country. But in Nigeria, an Attorney-General is considered good if he could find ingenious ways to violate and undermine the constitution of his country. The police and the DSS and EFCC all follow the same game – looking for ways to undermine their country’s laws.
Look at the way the Nigeria police, EFCC and DSS have all tried to violate the constitution of Nigeria. They know that the constitution demands that they complete an investigation before arrest and after arrest, they should charge the person to court within 24 hours.
Firstly, instead of obeying the constitution in this regard, the police prefer to arrest people on Fridays and days before public holidays so that they could hold them until Monday or after the holiday, and beyond the 24 hours the constitution demanded. The Friday arrests make it possible for the police to hold a person longer than 24 hours without being accused of violating the Constitution. In other words, they are undercutting the Constitution. Why have a constitution if all you do is look for ways to violate the constitution?
Secondly, instead of completing an investigation before arrest, they arrest people and then go to court to obtain an order to detain them without charging them. Again, even the court joined in undermining the constitution by granting them orders to detain people without charging them to court. And they consider themselves intelligent.
Thirdly, the DSS, through the Anti-Terrorism Law, has found ways to detain people for 90 days without charging them to court. And there are no standards for such a capricious exercise of power. In other words, DSS officers want to be considered intelligent for being able to undermine the constitution of their own country.
What you are seeing in the case of Emefiele are the twin problems that have bedevilled Nigerian law enforcement and the administration of criminal justice. There is a conscious effort to undercut and undermine their constitution. They deliberately sabotage their constitution and get promoted for doing that. The DSS refused to charge Emefiele. To justify their decision to keep him, they alleged some terrorist offences. Even if there were to be situations where detaining a person without charging him to court were to be allowed, there ought to be clear standards for determining when it should happen. How can a mere allegation of terrorism justify the indefinite detention of a citizen contrary to the Constitution? When they arrested Nnamdi Kanu for what would have amounted to mere irritation and violation of immigration rules, they had to throw terrorism into the allegation to justify detaining him indefinitely.
Likewise, when they arrested Omoyele Sowore for merely a silly and comical display by a person desperately seeking to be noticed, they threw in terrorism allegations to justify detaining him indefintely. In each of these cases, you can see that the terrorism law had become a tool for overriding the constitutional strictures against detaining a person beyond 24 hours without charging the person.
Because Emefiele is a big man, the courts were able to protect him by trying to force DSS to comply with the Constitution. If Emefiele were a small man, like the millions of other Nigerians whose rights are trampled upon daily by DSS, EFCC and the police, these courts would not show any interest even if begged to do so. The court’s interest in protecting Emefiele against the rapacious abuse by the DSS is welcome and yet very saddening. It is welcome to see Nigerian courts trying to stop DSS from violating the constitution. Yet, it is very sad to note that the same courts would not lift a finger to help a poor man in similar circumstances.
Adept in the practice of undermining the constitution and rule of law, the DSS has been undermining the courts as well, as they try to apply the constitution in favour of Emefiele. DSS was not going to charge Emefiele to court soon. And when the court ordered it to do so, the DSS chose to charge him with some nonsensical offence called possession of a firearm, which they probably dashed him when he was in their good book.
They charged him with that just to pretend to comply with the court. But they intended to hold him, to control the case. Like in Magu’s case, they want to have Emefiele tried by the Executive Arm of Government rather than by the judiciary. On the other hand, the judiciary is trying to bring the case to the courts. So, what we have here is the Executive arm of Government fighting with the Judicial arm of government over who should control a case. The two arms of government have their respective spheres of influence over the management of a case. DSS is refusing to comply with the constitution and the courts are helpless.
By Emeka Ugwuonye.