THE ILLEGALITY OF THE METHOD OF ARREST OF SENATOR ROCHAS OKOROCHA BY THE EFCC

It is recalled that the EFCC had on January 24, 2022, filed a 17-Count criminal charge bordering on diversion of public funds and properties to the tune of 2.9 billion Naira against Senator Okorocha. The case was assigned to justice Inyang-Ekwo of the FHC Abuja, but reportedly, attempts to arraign Sen. Okorocha was twice stalled owing to the absence of the ex-Governor and APC Presidential aspirant, who “evaded service of Process”.[1]

On Tuesday 24th May 2022, the EFCC went with the Police to the Abuja Residence of Senator Rochas Okorocha, to arrest him and in the process, they shot sporadically at the air to scare the protesters and bystanders. Teargas was also used and they eventually forcefully gained ingress into the private home of Senator Rochas Okorocha.[2] There are also video clips that show that they destroyed the doors and the ceilings of the house in the process.

The ex-Minister of Aviation, Osita Chidoka in his article “Okorocha’s Arrest, a display of weakness of Nigerian state” stated emphatically, while frowning at the flagrant disobedience of Rochas Okorocha in evading arrest and refusing to appear before EFCC upon demand. He went further to state that

“imagine for one minute a US Senator refusing to honor an invitation from the FBI. Also imagine the Sao Paulo Police, that arrested former President Lula, standing in front of a Brazilian Senators house for hours and refused entry. A very unlikely scenario”.

The former FRSC boss blamed the failure of public institutions in Nigeria on what he called “elite arrogance and disrespect of rules”.

However, he chided the officers of the EFCC should hold itself to higher standards of behavior by showing examples. Breaking through the roof to arrest a non-violent defendant is not necessary and proportionate.

“EFCC operatives staying out for days in front of his house would have been a more civil approach that shows respect for human rights and life. Anything could have gone wrong in the course of that forceful entry leading to loss of lives-a violation of the fundamental right to life. Our Descent to Anarchy has permeated all levels of our Society.”

The Argument of EFCC was that they invaded his house and arrested him because he jumped Administrative Bail.[3]

It is worthy to note that administrative bail should not be an excuse for the actions of the EFCC on the manner of Arrest used on the said day, since the case in question is currently in court; and not in the hands of EFCC. It is the Court/Judge that now has the Jurisdiction to order for his appearance before the court or order for his arrest (through the means of a bench warrant) if in the instance he jumps bail or refuses to appear before court.

Addressing these issues, we would make recourse to the Administration of the Criminal Justice Act 2015, christened ACJA which is the extant law in this regard.

According to s.149(2) of the ACJA; a law enforcement agent is permitted to resort to the use of force where and when necessary to effect an arrest on a suspect or conduct a search on a suspect or a suspect’s property or home. This section of the law simply implies that a law enforcement agent is at liberty or lawfully permitted to make use of whatever force necessary like breaking into the house of a suspect to conduct a search on the premises or the property or to effect an arrest on any person when the person is resisting ingress or egress of the law enforcement agent(s) has been denied or restricted.

Secondly, addressing the succeeding issue, “whether the EFCC or any on other law enforcement agency can carry out an arrest or search without a warrant”?

It is trite that a warrant must properly be issued, duly signed by a judge or magistrate of a court of competent jurisdiction or a justice of peace bearing[4] the right details of the suspect before any law enforcement agent can accost any person for the purpose of arrest or conducting a search on the property of that person. But there are exceptions to this law. There are instances when a law enforcement agent does not need a warrant to arrest or conduct a search on a suspect. These instances include when a crime is committed in the presence of a law enforcement agent or the officer of the law caught a suspect red handed committing a crime. The law enforcement agent is at liberty to immediately arrest the suspect without a warrant when the suspect has been evasive or has jumped bail but absconded or refused to show up when he was needed. A judge may also order a law enforcement agent to arrest a suspect who is supposed to appear before the court but has been unnecessarily absent from the court for no valid reasons.

From the above scenario, no crime was committed in the presence of a law enforcement agent and thus there was need for a warrant of arrest to be presented before the arrest of Senator Rochas Okorocha, this was not done as the EFCC took laws into their own hands.

 

The EFCC boss during a press conference a few days ago, said that the EFCC continue to lose cases in court due to technicalities. It is understandable why as they continue to violate processes and procedures in their day-to-day activities like the incident with Rochas Okorocha.

With the recent act of breaking and entering the house of Senator Rochas Okorocha could be called to question in court and be contested upon as there is no warrant of arrest by the court was presented to him before the arrest

Despite the above laws the courts have in several instances frowned at the use of force by security agencies, these have been observed in a plethora of Judicial decisions:

DASUKI V FRN [5] the applicant averred that at about 6.40pm on the 16th July, 2015, while he was about breaking his Ramadan fast, his house was unlawfully invaded and several items and properties including cars and monies were taken away by the agents of the Defendant, that during this invasion the Applicant and Members of his family who were in Abuja home, were subjected to severe psychological and emotional torture and were restrained from receiving any visitor during or allowed to leave the house. That this was done without any lawful order or warrant. The court having looked at the above and the fact that the defendant brought a fake Warrant not signed by a judge together with the method of arrest and invasion of the Applicants house Held: that the arrest was illegal and unlawful an infringement of his fundamental rights and ordered the defendant to pay the sum of 15million naira only as damages to the applicant for violation of his rights guaranteed under Articles 4,5 and 14 of the African Charter on Human and Peoples Rights and Article 17 of the International Covenant on Human and Peoples Rights as well as the Universal declaration of Human Rights.

Alade v FRN [6], Alade was arrested near the old Lagos toll gate area by a plain cloth police officer, who neither disclosed his identity nor gave any reasons for the arrest. The policeman then forcefully dragged in Alade to the Ketu Police Station in Lagos State, where he was detained. The Court Held; that the arrest was unlawful and ordered for his immediate release. Damages of 2,700,000 Naira was awarded to the plaintiff (Mr. Alade).[7]

From the foregoing cases it would be seen that the Courts frown against such crude system of arrest on a Person and even on most occasions grant/ award damages to the violated person. The first case is similar to the Facts of Rochas Okorocha and the way and manner in which the Arrest was done was unlawful, arbitrary and constitutes an egregious violation of the Applicant’s human rights as guaranteed by sections 34,35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (As amended) Articles 5,6 and 12 of the African Charter on Human and peoples’ Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990; Articles 9 and 12 of the International Covenant on civil and Political Rights and Articles 3,5,9 and 13 of the Universal Declaration of Human Rights and an egregious violation of the treaty obligations of which Nigeria is a signatory to the above legal instruments.

It is also worthy to state that during the raid the family of Rochas Okorocha was present at home during the raid and that must have led to both emotional and psychological damage to them, this can be witnessed in several videos on the internet and social sites as his children were feasibly shaking and praying for the fear of their lives.

From the layman’s perspective or the ordinary Nigerian, the perceived illegality of the arrest will be sensed as wrong and tainted with malice/ Mala fide.

“It is worthy to note that in the realm of criminal jurisdiction, motive, malice are important ingredients to secure the conviction of a person or prove a suspect is guilty of a crime.”

From the foregoing, the layman/average Nigerian sees the arrest as politically motivated since the day of the arrest was slated for the APC Presidential Screening which Rochas Okorocha was supposed to be a part of. Thus, it is being perceived that the Arrest was just to stop or prevent him Senator Rochas Okorocha from contesting the APC primary election. If the above is to be anything to go by, it won’t be wrong to state that the timing of the arrest was not normal. Did the EFCC rearrest Okorocha for political reasons?

The opinion also of the populace in Nigeria is that since he (Rochas) was going to be attending the screening of APC that day, why not the EFCC/Police wait for him or arrest him at the party secretariat or in front of his house. That would have been better than the brouhaha of going through the “ungodly medium of Breaking and Entering his house” and shooting indiscriminately for the mere purpose of arresting someone who allegedly jumped administrative Bail. The overwhelming video evidence also shows that the EFCC’s actions on the said day, impacted on people within the environs of Senator Okorocha’s home who were shot at, cordoned off from using public roads, shoved around, flogged and violently assaulted. EFCC might be expecting a barrage of law suits soon due to this unnecessary arrest of Senator Rochas Okorocha. Indeed, the activities of the EFCC on the said date should be thoroughly investigated by an independent body to ensure there was no political undertone or coloration to it.

In Conclusion, the activities of EFCC on Tuesday 24 May 2022, in breaking into the house of Senator Rochas Okorocha and his subsequent arrest without any warrant of arrest is unlawful and a breach of His fundamental rights, a suit for damages can be instituted against EFCC by the Senator’s Lawyers.

 

UGWUEZI WINNERMAN O. ESQ.

LLB, LLM (in view), BL.

Associate Partner, FRED OGUNDU & CO, LP.

 

 

 


[1] Wilson Uwujaren “why we stormed Okorochas Abuja home EFCC” Vanguard May 24 2022 accessed 26 May 2022.

[2] Nigerian Tribune “EFCC/Police shoots, uses teargas, breaks into the House of Okorocha” Dailies Wednesday News on 25 May 2022.

[3] Nigerian Tribune “EFCC/Police shoots, uses tear gas, breaks in to the house of Okorocha” as News for Wednesday 25 May 2022

[4] Ranken V. Islamic Republic of Iran (Award No. 326-0913.23rd November, 1957 Iran – United States Claims Report vol. 17 pg 141.

[5] (ECW/CCJ/JUD/23/16) 2016} ECOWASCJ 54; (4 OCTOBER 2016)

[6] 2016 Ecowas Court www.justiceinitiative.org/litigation/alade-v-FRN open Society Justice initiative accessed 26 May 2022

[7] In Mukong v Cameroun {CCPR/c/51/D/458/1991-1994} the Applicant alleged that he had been arbitrarily arrested and detained for several months, an allegation rejected by the state on the basis of arrest and detention has been carried out in accordance with the Domestic Law of Cameroun. The court held that it is clear from the evidence and annexures produced before the court, there is no legal basis for re-arrest of the Applicant after having been granted bail by three Domestic Courts of the Defendants. It appears that sole aim of the arrest is to circumvent the grant of bail and by keeping the Applicant in custody through executive fiat unsupported by any law or order of Court. Furthermore, the search warrants purportedly produced by the defendant as the basis of the search of the applicant’s house is neither certified nor authentic.