Incessant Flouting of Court Orders and Its Implication for Democracy
Institutions like the judiciary are meant to be the bastion of society and the flagrant disregard of its judgements lead to chaos as is being witnessed across board in Nigeria now with the Supreme Court and federal government’s face off on the naira policy. Recently, one of the agencies of government, the Economic and Financial Crimes Commission, EFCC, was accused of towing that path by a coalition of civil society organisations. Sunday Ehigiator reports that this trend portends grave danger to democracy
For any democracy to thrive, respect for the law and human rights, as well as adherence to institutions established to shape the country are key. Flagrant disregard for any of these often weakens the rule of law and also threatens human rights.
One of the agencies of government that should understand the need for the rule of law is the Economic and Financial Crimes Commission (EFCC), a Nigerian law enforcement agency that investigates financial crimes such as advance fee fraud (419 fraud) and money laundering.
Over the years, the EFCC has been instrumental in charging and prosecuting senior political leaders and businessmen with political links, as well as in recovering and repatriating significant stolen resources for the Nigerian state, yet it is also subject to frequent political interference, which reduces its effectiveness and means that it is often seen as an arm of the incumbent government, without an independent mandate.
Established in 2003, partially in response to pressure from the Financial Action Task Force on Money Laundering (FATF) which named Nigeria as one of the 23 countries non-cooperative in the international community’s efforts to fight money laundering, the EFCC in recent times seem to disregard court orders not in its favour.
Flouted Court Orders
On February 6, 2023, the Kogi State High Court in Lokoja ordered the Chairman of the Economic and Financial Crimes Commission (EFCC), Abdulrasheed Bawa, to be imprisoned for disobeying its order.
It also directed the Inspector General of Police to arrest Bawa and remand him in Kuje prison, Abuja, for the next 14 days.
The judge, Rukayat Ayoola, ordered that Bawa be detained in prison “until he purges himself of the contempt”, meaning until he clears himself of the contempt for which he was jailed.
Ms Ayoola issued the committal order based on an application filed by Ali Bello accusing Bawa of disobeying a court ruling by going ahead to arraign him on December 15, 2022 against an earlier court order made on December 12, 2022.
In the said December 12, 2022 ruling, the court had ruled that the arrest and detention of Mr Bello on November 29, 2022, by EFCC and its chair in the face of an earlier subsisting court order without a warrant of arrest or being informed of the offence for which he was arrested is unlawful and unconstitutional.
The court also held that the arrest and detention of the applicant contravened his right to personal liberty and dignity of the human person guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 5 and 6 of the African Charter on Human and Peoples’ Rights.
The court had also ordered the respondents to tender an apology to the applicant in a national newspaper and awarded N10 million compensation for him. But all these orders were not obeyed by the EFCC and its boss, thereby leading to the order of arrest of the EFCC boss.
But prior to this, on November 9, 2022, Justice Chizoba Oji of an Abuja High Court sitting in Maitama had ordered the remand of the EFCC Chairman at the Kuje Correctional Centre, for allegedly disobeying an earlier order of the court against the commission.
But EFCC, which immediately appealed the judgement, said the ruling was surprising and created a wrong impression of Bawa as one who encouraged impunity.
Delivering a ruling in an application brought by Air Vice Marshal (AVM) Rufus Ojuawo, Oji held that the “Chairman, Economic and Financial Crimes Commission is in contempt of the orders of this court made on November 21, 2018, directing the Economic and Financial Crimes Commission, Abuja, to return to the applicant his Range Rover (Supercharge) and the sum of N40 million.”
In the ruling delivered on October 28, 2022, the court stated that the EFCC boss “should be committed to prison at Kuje Correctional Centre for his disobedience, and continued disobedience of the said order of court made on November 21st, 2018, until he purges himself of the contempt.”
A Certified True Copy (CTC) of the judgement, dated November 3, 2022, sighted by THISDAY, noted that the Inspector General of Police had been directed to “ensure that the order of this honourable court is executed forthwith”.
Ojuawo, a one-time Director of Operations at the Nigerian Air Force (NAF), had in a motion on notice marked: FCT/HC/M/52/2021, complained that the anti-graft agency was yet to comply with the November 21, 2018 judgement, which ordered the commission to release his seized property.
However on November 10, 2022, the judge ruling on an application filed by Mr Bawa, set aside her decision of 28 October, which ordered the Inspector-General of Police to arrest the EFCC boss with a view to incarcerating him at Kuje prison in Abuja.
The judge said she was satisfied that the EFCC Chairman did not disregard the court’s orders, asking him to release seized assets belonging to Rufus Ojuawo, a retired air vice marshal.
The judge held that evidence before her showed Mr Bawa had complied with the court’s order, directing the EFCC to return the Range Rover Sport vehicle and was in the process of returning his N40million.
CSOs Calls for Bawa Sack
But with the recent disregard on the court order on Bello’s case, over 40 anti-corruption Civil Society Organisations (CSOs) asked the President, Muhammadu Buhari to sack Bawa, alluding that the commission has derailed from its mission and was now politicised.
In a press conference held recently in Lagos in protest of Bawa’s attitude, the CSOs led by the Chairman of the Centre for Anti-corruption and Open Leadership (CACOL), Mr Debo Adeniran, said Bawa had made the EFCC an “institution known for brazenly disobeying court orders in such a manner that does not only undermine the institutions of Nigeria’s democracy but also indicates a contradiction to the anti-corruption agenda of Buhari.“EFCC’s Gestapo-style regime of disobeying court orders must stop. Nigeria is not a banana republic. All must resist attempts by institutions of state to ridicule the country and make it seem like a lawless fiefdom.
“The EFCC seems to be allowing itself to be used as an instrument of a political witch-hunt, as it targets some individuals more than many others. Some of our organisations have submitted several petitions to the commission, which it has refused to act on even when you sit with them to reason on the merits of those petitions. Once there is a political interest, the whole process of investigation and litigation becomes politicised.
“The commission seems only to act with gusto against perceived political enemies of some powerful political forces in the country rather than being neutral and professional.
“For instance, the Speaker of Ogun State House of Assembly was bundled in Gestapo-style to Abuja on corruption allegations, while the commission left several similar petitions elsewhere untouched. Where are justice, impartiality, and professionalism?
“This culture of impunity as consistently exhibited by the EFCC Chairman continues to ridicule Nigeria in the comity of nations and sabotage efforts at attracting foreign direct investment.
“Investors only go to jurisdictions where the rule of law and respect for human rights are guaranteed while shunning countries where ‘rule of men’ predominate,” they added. It is not for EFCC and its leadership to pick and choose which court orders to obey or disregard. That is an invitation to anarchy”.
Therefore, they concluded that Bawa must be sacked for the commission to “recover its past glory.”
Implication for Democracy
For many, the incessant disobedience of court orders by government and its agencies have continued to weaken the rule of law and also threatens human rights in the country, thus heightening the need for judicial activism for leadership of agencies that flout such court orders because if the law is continuously flouted, it means that the essence of the law has been lost.
Raising concerns on flagrant abuse of court orders, Executive Director, Rule of Law and Accountability Advocacy Center (RULAAC), Okechukwu Nwanguma, said “Any security agency set up by law to enforce laws must subject the conduct and actions of its operatives to the law. There are guidelines, code of conduct and safeguards put in place to regulate the exercise of powers by agencies with law enforcement mandates.
“Any deviations from the law in exercise of law enforcement powers can have consequences both for the individual operatives and the agency they represent. Non conformity with the law is lawlessness and lawlessness destroys the legitimacy of any law enforcement organisation.”
Reacting also, Barrister and Solicitor, Olukayode Faseyi, Esq, said the EFCC is clearly an intentional creation of the law of the land and not an abstract creation of itself as it is an organ of the executive arm of the Nigerian government which is constitutionally saddled with the administration/execution of the law.
“The Judiciary in Nigeria is a creation of the various constitutions and/or supreme enactments of the country. It is an independent arm of government different from the executive and the legislative Arms of government. The Judiciary is constitutionally saddled with the interpretation/adjudication of the law.
“It is however unfortunate to find that an institution as the EFCC falsely believes that it is vested with such totalitarian powers that it can carry out its responsibilities whimsically and capriciously without any regard for the rule of law.
“The frequent flagrant insubordination and disregard for court orders underlies the arrogant ignorance of the operatives of the EFCC to the effect that they do not not comprehend that the courts are not just courts of law but courts of justice. The courts do justice in accordance with laid down procedure. EFCC certainly believes that if the orders of court are not made in a way that pleases their inclination then they are not bound to obey.
“The consequence of the flagrant disregard for the orders of the court by the EFCC is a recipe and an invitation to anarchy. It is an act clearly capable of weakening the fabrics of the systems and structures of public governance. Such acts threaten the operation of the rule of law and the human rights of citizens.
“Such acts are tantamount to a violation of the doctrine of checks and balances which doctrine is predicated on the hallowed age-long democratic principle of separation of powers. The acts of infractions of court orders by the EFCC clearly takes us back into the outdated dark days of military rule where separation of powers principles are not just blurred but non existent because of the absence of an independent legislature and Judiciary which was bedeviled by undemocratic ouster clauses through military decrees which were made superior to the constitution (the grundnorm) of the land.
“Finally, the flagrant disobedience of court orders makes EFCC a laughing stock in the face of the citizens and the international community and underscores its hypocrisy in its claim to combating economic and financial crimes. If the EFCC continues to break the tenets and orders of the same law that created it, that same law will break the EFCC into pieces one day so that the anarchy and worthlessness which its act will potentially cause in the system can be averted as a matter of urgency.”
EFCC Reacts
But in reaction to the call by the CSOs, EFCC denied the allegation that its Chairman, Abdulrasheed Bawa, was fond of disobeying orders of courts.
Speaking at a briefing in Abuja, EFCC spokesperson, Wilson Uwujaren, said the groups calling for Bawa’s sack, have no interest in the fight against corruption.
He said the commission believed it was denied a fair hearing and that as a law-abiding institution; the EFCC had approached the appellate court, for a stay of execution in most of the cases cited.
Uwujaren, however, did not say whether the stay of execution had been granted to forestall the order for the arrest of Bawa by the Inspector-General of Police.
He alleged that the protests by over 100 anti-corruption Civil Society Organisations, which entered the third day on Monday, February 11, were sponsored against the EFCC chairman to discredit Bawa’s person.
According to him, the protesters’ allusion to disobedience of court orders by the EFCC chairman is an alibi to manipulate facts around judicial pronouncements and processes to pitch the public against the commission.
He maintained that those claiming that Bawa has a penchant for flouting court orders are simply up to mischief, which he (Uwujaren) said is the central theme of the plot by the “so-called” civil society group.
He said: “Information available to the Commission, indicates that the group is sponsored by persons under investigation by the Commission and have been mobilised and mandated by their paymaster to embarrass the person of the chairman through choreographed street protests across the country until he is removed from office.”
While revisiting the circumstances of the two orders of committal against the EFCC Chairman, Uwujaren stated:
“The first order by an FCT High Court on November 8, 2022, was issued over the failure to comply with a November 21, 2018 order of the court directing the Commission to return seized assets comprising a Range Rover SUV and the sum of N40, 000,000.00
“For the benefit of the public, the said order of the FCT High Court was given three years before Abdulrasheed Bawa became EFCC Chairman.
“Also, the contempt process is quasi-criminal and must be served on the person involved. In this case, Bawa, chairman of the EFCC, was neither served Form 48 nor Form 49.
“As a law abiding institution, EFCC has conducted all its activities within the ambit of the law. Where judicial decisions were made against it, it has never resorted to self-help but availed itself of remedies under the law as it did in the instant case of committal orders of court.”
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Any security agency set up by law to enforce laws must subject the conduct and actions of its operatives to the law. There are guidelines, code of conduct and safeguards put in place to regulate the exercise of powers by agencies with law enforcement mandates
