By Austin Ogwuda
ASABAâ€”THE Federal Government, through its Attorney-General, Monday clarified that the nationâ€™s anti-graft agency, Economic and Financial Crimes Commission, EFCC, has the constitutional right to arrest the former Delta State governor, Chief James Ibori, currently on the run.
Counsel to the Federal Government, Mr. Abubakar Balarabi Mahmud (SAN), stated this position while urging the Federal High Court in Asaba to turn down the application from Iboriâ€™s lawyers seeking the court to stop EFCC from arresting the fleeing ex-governor.
Ibori had, a fortnight ago, approached a Federal High Court, sitting in Asaba and presided over by Justice Ibrahim Buba, seeking the protection of the courtÂ to stop the EFCC from arresting him pending the determination of the matter before the court.
But objecting to the motion from Ibori, Mahmud said:Â â€œMy learned friendâ€™s application hunches on an invitation on your court to perform this duty. He is asking you (judge) to exercise this discretion yourself on ‘donâ€™t arrest, donâ€™t invite’.
“It is an invitation to you to exercise those powers. That is not your duty, my lord, and the Constitution is very clear on this.”
In Section 35, the Constitution does not state that you have a right not to be arrested. It states that you may be arrested if there is reasonable suspicion, which is not the function of the court. It is the function of those investigating crime. If they decide to arrest you, then you are entitled to all the safe guards in the Constitution.â€
â€œThere is no such legal requirements that stated thatÂ before you are invited by EFCC you must be giving a reasonâ€, addingÂ that the letter inviting Ibori to EFCC stated that â€œthe Commission is investigation a caseÂ in which your name (Ibori)Â featured prominentlyâ€.
â€œAny person who is arrested or detainedâ€, he further argued, â€œshall be informed in written within twenty-four hours in the language he understands on the fact on the grounds of his arrest for detention. The provision of the law does not say before your arrest, any person to be arrested , it says any person who is arrestedâ€.
On the argument by Iboriâ€™s lawyers that the Federal Attorney General was a nominal party in the matter, Mahmud said â€œlet me clear the issue of the fact the Attorney General is a nominal party in this matter, as argued myÂ friend. We areÂ indeedÂ the really defendants.Â There is one fundamental point I will want to clear, that our criminal justice system is founded on the separation of powers, those vested with the powers to investigate crime with those with the powers of adjudicationâ€.
â€œThat is why we said the court has no jurisdiction, no course of action disclosed in this application , because this application which hunches on section 38(9) can only be raised in a criminalÂ court under Section 36 of the Constitutionâ€.
Counsel to theÂ EFCC, Mr. Chile Okoroma alignedÂ himself with the arguments of Mr. Mahmud.
Iboriâ€™s lead counsel, Josepoh Daudu (SAN) had while moving the motion for the enforcement of the fundamental right of the applicant argued that EFCC has no legal right to arrest the applicant (Ibori), adding that the applicant has sought to know from the respondents the reasonsÂ as to why he wasÂ declared wanted.
â€œThe basis of our approaching this court was based on the numerous newspapers publications showing that the applicant is still been wanted by EFCC in connection with his tenure as the governor of Delta Stateâ€, pointing out that the invitation from EFCC did not contain any reason for the interview.
He further submitted that â€œEFCC has no power to arrest any individual in this country, if any Section of the EFCC Act such as 13(1) and 41 purports to grant them similar powers such as in the police act are void to the extent of its inconsistency, just as the Section 214 of the Constitution confirms the powers to the police to arrestâ€.
Meanwhile, Justice Ibrahim Bubu has adjourned the matter to 31st May 2010 for ruling.