Lessons From Emefiele’s Case

By Femi Falana SAN

The State Security Service filed an application ex parte on December 7, 2022 praying for the arrest and detention of Mr. Godwin Emefiele for the purpose of investigating him in respect of allegation of terrorism financing. Within two days, the Chief Justice of the Court, the Honourable Justice John Tsoho assigned the case to himself and heard it.

As no sufficient evidence was adduced by the SSS the Chief Judge struck out the motion. However, his Lordship rightly pointed out that an order of court is not required to arrest and detain Mr. Emefiele if there is reasonable suspicion that he has committed the grave offence alleged against him.

Having regard to the facts and circumstances of the case the position of the Chief Judge is unassailable. His Lordship deserves commendation for assigning and determining the case so swiftly. That is how it should be in matters of civil liberties for the law says so. But Mr. Emefiele’s personal liberty was not tampered with because of his special status. It is common knowledge that on a daily basis, several ex parte applications are granted in favour of the sss, police and other law enforcement agencies to authorise the detention of the flotsam and jetsam of the society.

For instance, on August 5, 2019, the sss arrested Mr. Omoyele Sowore in Lagos and took him to Abuja where he was detained incommunicado . Three days later, the sss applied to the Federal High Court for an order ex parte to detain and investigate him for terrorism. The case was assigned to Justice Taiwo Taiwo (now retd). In granting the application his Lordship ordered that Sowore be detained for 45 days to enable the sss to carry out the investigation.

Less than 24 hours later, we filed a motion on notice on behalf of detainee seeking to set aside the order ex parte together with an affidavit of urgency. The main ground was that the sss was not one of the agencies authorised at the material time, to arrest, detain, investigate and prosecute any terror suspect under the Terrorism Prevention Act 2011 as amended in 2013. Sowore’s motion on notice was not heard throughout the 45-day detention period. It is pertinent to point out that based on the case the sss has since been made one of the enforcement agencies by virtue of section 99 of the Terrorism Prevention Act, 2022.

However, while congratulating Mr. Emefiele for his temporary legal victory, I am compelled to call on the Chief Judge of the Federal High Court and Chief Judges of the High Courts of the States and the Federal Capital Territory to always assign fundamental rights cases with dispatch. Such cases ought to take precedence over political cases in line with the letter and spirit of the Fundamental Rights (Enforcement Procedure) Rules 2009.

As a matter of policy, Nigerian Judges and Magistrates should end the practice of authorising the anti-graft bodies, security agencies and other law enforcement organisations to arrest and detain citizens on the basis of ex parte applications. Like Mr. Emefiele, other citizens whose liberty is liable to be abridged should be put on notice, regardless of their status. After all, all citizens are entitled to equality of rights, obligations and opportunities before the law.