As Yahaya Bello Makes Mockery of the Law

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

All Men are Equal Under the Law: Myth or Reality?

It is patently clear that even if God created all human beings equal, and every Constitution in the world reiterates the fact of this equality in one way or the other, the reality is that,  societal practice makes it untrue. Take for example, the American Declaration of Independence of 1776 which states that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”. The 14th Amendment to the US Constitution enacted after the American Civil War of 1861-1865, to combat discrimination and ensure the rule of law, guarantees equal protection under the law. Similar provisions are echoed in the Preamble of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) and other sections thereof, like Sections 15(2), 17(3)(a),(e) & 42, which altogether promote equality, equity and fairness and prohibit discrimination on any basis. Unfortunately, in reality, the opposite seems to obtain, not just in Nigeria, but in many parts of the world, as there appears to be two sets of laws, one for the majority and another for the privileged and/or highly placed minority. 

USA

There was the case of Leonard Mack, an African American who spent 47 years in prison, having been wrongly convicted inter alia of rape. With the advent of DNA testing, he was finally exonerated, as the test proved that the biological samples that were found on the scene belonged to another person, and not him. The person who was identified by the DNA test, also confessed to his crime. Juxtapose this with world famous, wealthy film Producer, Harvey Weinstein, whose New York rape conviction appears to have been overturned based on technicalities, and not substance/merits of the case, unlike that of Leonard Mack. If not that he is serving a 16 year sentence on other rape and sexual assault charges as a result of his conviction in Los Angeles, Mr Weinstein may have already been home sipping ‘pina coladas’, a free man.

As we were watching the proceedings in Donald Trump’s immunity suit, I couldn’t help but wonder whether if an ordinary American citizen had orchestrated what Mr Trump had on Capitol Hill after he lost the 2020 election, whether that person wouldn’t already be serving imprisonment for “Advocating the Overthrow of Government” contrary to U.S.Code Title 18 Part 1 Chapter 115 § 2385, and upon conviction punishable with a fine or not more than 20 years imprisonment or both. Even if a President has immunity for official acts done while still in the White House, surely, inciting people to violence or insurrection, or paying hush money, cannot be classified as part of the President’s official duties, and the only reason that I can see for Donald Trump not being in jail, and this back and forth in the US Courts, is because President Trump is one of the privileged and most highly placed minority who seem to enjoy a different set of laws from the ordinary man, even when they are no longer in office. 

Prevalence of Double Standards in Nigeria and Procedure for Prosecution 

These double standards are also prevalent here in Nigeria – one law for the majority, another for politicians and militants/insurgents (who confess repentance, and can be forgiven). As a result of the emphasis by Yahaya Bello’s supporters that he was not ‘Invited’ by the EFCC, as if the EFCC is holding a birthday party that is strictly by invitation, I decided to run through the laid down procedure of arrest. 

Reasonable Suspicion, Investigation & Arrest 

Section 35(1) of the Constitution guarantees every individual’s right to liberty except in certain circumstances, one of which is provided in Section 35(1)(c) thereof, that is, when there’s reasonable suspicion that the individual has committed a criminal offence; such a person can be arrested by the Police or Security agency, in accordance with a procedure permitted by law. Section 3 of the Administration of Criminal Justice Act 2015 (ACJA) provides that a suspect or a Defendant charged with committing an offence established by statute shall be arrested, investigated, inquired into, tried or dealt with in accordance with the provisions ACJA. Additionally, Section 6(b) of the Economic and Financial Crimes Commission (Establishment) Act 2004 (EFCC Act) empowers EFCC to investigate all financial crimes including money laundering, while Section 6(h) also empowers EFCC to examine and investigate all reported cases of economic and financial crimes, in order to identify those involved. 

The first point to note, is that the Constitution and ACJA do not require EFCC to extend a formal invitation to Yahaya Bello (YB) or any other suspect, nor does a suspect have to be formally charged before they can be arrested. The caveat is that, there must be sufficient evidence before an arrest is made. In Fawehinmi v IGP & Ors (2002) LPELR-1258 (SC) per Samson Odemwingie Uwaifo, JSC, the Apex Court held inter alia that “….it is unlawful to arrest, until there is sufficient evidence upon which to charge and caution a suspect”. We all know that in Nigeria, many a time, quite the opposite occurs, that is, arrest first, then evidence gathering subsequently. 

Ideally, a person should be charged to court 24-48 hours after arrest (see Section 35(5) of the Constitution); but, in the case of YB, the fact that a charge had been filed against him before February 5, 2024 shows that the EFCC had taken their investigation to an advanced level before then. According to the EFCC Chairman, Mr Ola Olukoyede, he inherited the case file from his predecessor-in-office, meaning that investigations had been ongoing for a while. In fact, in a related case, sometime about December, 2022, YB’s nephew, Ali Bello, one Dauda Sulaiman and a Kogi State Government House cashier had been arraigned in a case involving the withdrawal of N10 billion from the Kogi State Treasury for personal use. These three other Defendants, are also part and parcel of the 19 counts filed against YB, concerning the alleged purchase of over 11 properties including one in Dubai, UAE. In YB’s case, it appears that there is enough evidence to reasonably suspect him of committing crimes contrary to the Money Laundering (Prohibition) Act 2011 (as amended) (MLA). 

Rights of a Suspect 

If a suspect is not arrested in the act of committing a crime, then the arresting officer must immediately inform the suspect of what they are being arrested for, and inform him/her of their rights – the right to remain silent, the right to a legal practitioner etc – see Section 35(2) of the Constitution and Sections 6 of ACJA. Section 35(3) of the Constitution stipulates that an arrested person must be informed of the grounds of arrest within 24 hours. See the case of Ankwa v State (1969) LPELR-25460(SC) per George Baptist Ayodola Coker, JSC. The arresting agency can then interrogate the suspect. Apart from Section 8(1)(a) & (b) of ACJA which provides that suspects must be treated humanely, they must not suffer torture, cruel or inhuman treatment, Section 2 of the Anti-Torture Act 2017 (ATA) defines acts of torture like obtaining a suspect’s confession by inflicting pain on them – whether physical or mental; while Section 9 (1) & (2) thereof prescribes punishment of up to 25 years imprisonment and trial for murder in the case of the death of a suspect during torture, respectively. 

Bail

The arresting agency can grant a suspect administrative bail before the charges are filed, particularly if the investigation hasn’t been completed. Section 35(4) of the Constitution also sets out timelines for charging a person to court, failing which such individual is either released unconditionally or with conditions to ensure they attend trial at a later date – Section 35(4)(a) provides within two months of the date of arrest or detention if the person is in custody or is not entitled to bail (for instance, the person may not be entitled to bail, if the person is a flight risk, or is likely to interfere with the investigation or witnesses, or commit another crime – see the case of Suleman & Anor v COP Plateau State (2008) LPELR-3126(SC)) and it would be foolhardy to grant them bail; or Section 35(4)(b), charged to court within three months, if the suspect is released on bail.

From the above-mentioned constitutional  provisions, it appears that the EFCC can arrest, detain a person without bail, and may have up to two months to bring them before a court of competent jurisdiction. It could be during this time that the detainee could apply to court to enforce their fundamental rights, if they believe that their arrest is unlawful or they have been wrongfully denied their right to liberty – see Sections 46(1) and 251(1)(r) of the Constitution. A Defendant who has been charged to court, can also apply to the court to be granted bail. 

Justice Sector Summit: Independence of the Judiciary 

I attended the 2024 National Summit on the Justice which held in Abuja last week, and not having exclusive knowledge of all the law, I asked a few legal luminaries present there about seeking and obtaining an injunction to prevent the arrest of an individual, when such individual is reasonably suspected to have committed a crime. They all separately responded, that they are not aware of such a process in that context. As far as I’m concerned, such a process is unconstitutional as it is inconsistent with, and defies the purpose of Section 35(1)(c) of the Constitution. 

One focus of the Justice Summit was the issue of the independence of the Judiciary necessitating the strict implementation of Section 121 of the Constitution, so that Chief Judges don’t have to go to their Governors with a begging bowl to fund their courts, and the State Judiciaries are not subservient to the Governors. We see this situation of subservience clearly in the Kogi State/YB scenario, where it appears that the trial Judge was simply doing the bidding of YB, without regard for the Constitution or the law. The National Judicial Council (NJC) must deal with erring judicial officers decisively, to act as a deterrent to others who choose to indulge in all manner of abuse of court processes.

Conclusion 

In the past, I criticised the way that the EFCC carried out some of its activities. But, in YB’s case, I’m struggling to see where EFCC has gone wrong. It appears that the EFCC had filed charges against YB at the Federal High Court (FHC) even before he went to the Kogi State High Court (KHC) to obtain an ex-parte order to prevent his arrest. In fact, on February 5, 2024, the EFCC had sought to amend the charges it had already filed against YB and his co-Defendants, four days before YB secured his interim order to prevent his arrest. If that wasn’t forum shopping of the highest order from the favourable store manned by Jamil J. of the KHC, I wonder what is? A clear case of abuse of court process. Though the Apex Court in EFCC v Wolfgang Reinl (2020) LPELR-49387(SC) & Ihim v Maduagwu (2021) LPELR-53906(SC) held inter alia that both the State High Court and FHC have concurrent jurisdiction in a matter pertaining to the enforcement of rights, should YB not have made his application for the so-called enforcement of his rights at the FHC where his case was already pending, and where, by virtue of Section 251(1)(r) of the Constitution, the FHC has exclusive jurisdiction, since it is a matter involving a government agency, that is, the EFCC? And, what rights exactly, did YB seek to enforce or protect? To ignite enforcement of rights in this context for instance, there must be something – maybe unlawful arrest/detention; you can’t  build something on nothing. In Jaiyesimi & Anor v Darlington (2022) LPELR-57344(SC), the Apex Court held that an action to enforce fundamental rights, is almost invariably a complaint against a tortious act. YB hadn’t even been arrested! Or it is a breach of YB’s fundamental rights, to reasonably suspect him of committing a crime? See the case of Living Mitin v CP Bayelsa State Command Yenagoa & Ors (2022) LPELR-59029(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC.

Lawyers who participate in all these abuse of court processes, should also be sanctioned. And, for our learned colleagues, who for reasons best known to them, have a penchant for going to all forms of media to turn the law on its head and mislead the unknowing public, shame on them! We have complained about our institutions being weak, about Politicians dipping their hands into the treasury to the detriment of the people; now that the EFCC is trying to represent the interest of the people of Kogi State, some Lawyers have taken it upon themselves to harp on a useless point that the law doesn’t mandate – that YB wasn’t invited by EFCC! 

The allegations that have been levelled against YB are too weighty to be treated with such levity, or swept under the carpet or ignored; they require answers. YB has been charged under the MLA, for offences which carry a punishment of between 7 and 14 years imprisonment upon conviction (Section 15(3) of the MLA). N84 billion no be beans! One can imagine how many Primary School classrooms in Kogi State, could have been renovated with the $800,000+ that YB is alleged to have expended on his own children’s advance school fees at American International School, Abuja. 

YB is not protected by Section 308 of the Constitution’s immunity clause, as he’s no longer the Governor of Kogi State. And, like everyone else, he is subject to the law; he is not above it. One thing that ‘Kogites’ and Nigerians generally do not want to hear, is that YB has fled the country and is now at large, like one of his co-Defendants, the cashier. As things stand, YB appears to be nothing more than a coward, a namby-pamby trying to evade the law. Whether KHC institutes questionable contempt proceedings against the EFCC Chairman or not, it doesn’t change the fact that there are 19 criminal charges pending against YB. He should man up and face them. And, while what Governor Ahmed Ododo has done so far to assist YB evade the authorities is bad enough, should YB flee, Mr Ododo should face impeachment and removal proceedings, as his actions certainly qualify as gross misconduct.