DSS midnight arrest of judges: Afe Babalola (SAN) Expose (2)


In these three series, Legal luminary Aare Afe Babalola SAN  extensively addressed the legal issues on the controversial arrest of  judges and judicial officers by the DSS. He traced the history and establishment as well as the powers of the DSS, the NJC and National Security generally.



(PART 2)

Aare Afe Babalola OFR (SAN) -16/11/16

DECREE No. 1 of 1999 Also in 1999, in order to give the service more bite and reposition it for greater efficiency, Abdulsalami ABUBAKAR (Gen./retd) in exercise of his powers as President, Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, by virtue of Instrument No. 1 of 1999 relating to the general duties of the SSS as set out in Section 2-(3) of the decree’s objectives, the SSS at this point, was mandated to carry out the following functions amongst others :

(i) Prevention, detection and investigation of:

1.Threat of Espionage;

1.Threat of Subversion;

2.Threat of Sabotage;

3.Economic crimes of national security dimension;

4.Terrorist activities;

5.Separatist agitations and inter-group conflicts;

6.Threat to law and order

(ii) Vetting of:

1.Prospective appointees to public offices;

2.Vital and sensitive corporate organizations before their incorporation in Nigeria and continuous covert monitoring of their activities to ensure that they are in line with national security interest;

3.Applicants for Nigerian nationalization and naturalization in Nigeria;

(iii) Provision of timely advice to Government on all matters of National security interest; and

(iv) Profiling etc.

It is important to note that it was not until Decree 1 of 1999 that the DSS had any power to prevent, detect and investigate economic crimes. Be that as it may, a perusal of the powers conferred on the DSS by Decree No. 1 of 1999 would reveal that the economic crime to be investigated, detected or prevented MUST be of national security dimension. This is in line with the ejusdem generis rule of interpretation of law. Please see Section 2(3) of the said decree.

National security  dimension

A contrary view, which some favour, is to argue that the powers conferred on the SSS in relation to “economic crimes of national security dimension and threat to law and order sufficiently cover the action of the DSS. However such an argument is flawed for the following reasons:

1.Decree 1 of 1999 is within the provisions of Section 315 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), an existing law. By the provisions of that section, an existing law has effect subject to the provisions of the Constitution. The Section reads as follows:

“315. –(1) Subject to the provisions of this Constitution, a existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be – (a)An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and

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(b)a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

4 Some of the provisions to which an existing law is subject are contained in Sections 214 and 215 relating to the establishment, operational use and competence of the Nigeria Police Force. Relevant portions of the above provisions read as follows:

“214.-(1) There shall be a police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.

215.-(1)…(2)… (3) The President or such other Minister of the Government of the Federation as he may authorize in that behalf may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary, and the Inspector-General of Police shall comply with those directions or cause them to be complied with.”

5.Following from the above is the inescapable conclusion that an attempt to hinge or legitimise the conduct of the SSS on the provisions of Decree 1 of 1999 would run foul of the provisions of sections 214 and 215 on two grounds to wit:

1.It would elevate the SSS to the position of another Police Force of the Federation contrary to the provisions of the Constitution.

2.It would require reading the SSS into the provisions of Section 215(3) which mentions only the Nigeria Police Force contrary to even the most basic norms of interpretation of statutes.

Having regard to the provisions above, it is obvious that the claim of the DSS in its statement that its actions in arresting judges for corruption and professional misconduct were “in line with its core mandate” is utterly misconceived. The establishment law of the DSS limits its powers to matters of internal national security.

Treasonable  felony

It has no business with investigating or prosecuting economic or financial crimes by judges especially when such crimes have nothing to with terrorism, treasonable felony and other similar offences which may threaten national security. For the above reasons, even if one were to argue that the powers of the NJC cannot curtail the powers of the law enforcement agencies to investigate the judiciary for corruption, the DSS is not the appropriate body to carry out such investigations since its powers are limited to matters of internal security. The other bodies who may be regarded as having the powers to investigate corruption in the judiciary would be the ICPC, EFCC and the Nigerian Police. Definitely NOT the DSS!!!

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In two cases, the Court have made it clear that the SSS and its predecessor, the NSO lack the power to act outside of the statutory purview.

1.In Tawakalitu v. FRN (2011) All FWLR (Pt. 561) 1413 at 1489 to 1490, par E-F, the Court of Appeal stated as follows:

“From the foregoing provisions of the Police Act and CPC, it is clear that the powers conferred on the police are wider than those of the State Security Service which are confined to detection of crimes against internal security of Nigeria; preservation of all non-military classified matters concerning the internal responsibilities affecting internal security of the Nigerian State as the National Assembly or President may deem necessary to assign to the service.

With the greatest respect, examination malpractices and/or certificate forgery is not one of those crimes relating to or contemplated by the National Security Act on internal security of Nigeria so as to confer the State Security Service with the powers to arrest, detain, investigate and arraign the accused persons in that respect. Ordinarily, as State Security operatives or citizens of this country, they have powers to apprehend any criminal caught committing an offence but in line with section 9 and 39 of the Criminal Procedure Act and Code respectively, the accused persons/appellants ought to have been taken before a police station and handed over to the police officers who are statutorily charged with the responsibility of investigation crimes of the nature with which the appellants were charged which State Security Service officers in this case failed to do. In essence, they usurped the powers of the police as provided under the Police Act as earlier cited.”

2.In Mufutau Balogun & Ors v. Attorney-General of the Federation (1994) 5 NWLR (Pt. 345) 442 at 456 the Court stated as follows:

“…It must be observed first and foremost that the offences with which the defendants were charged had nothing to do remotely with State security matters while it is true that every citizen, as the said operatives, has a duty to assist in the arrest of offenders, it is the function of the police to investigate alleged offences (other than security matters) in accordance with the law before prosecution takes place if need be.

The police Act, in particular sections 3-11 are relevant. I find it necessary to refer to section 9 of the Criminal Procedure Act… in the present case, the said N.S.O. operative had no basis upon which they deprived the police of their constitutional right to immediately take over the case and take necessary statement from the defendants in their own office…”


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It has been argued that the Administration of Criminal Justice Act (ACJA) empowers the DSS to arrest judges since it is a law enforcement agency. This argument is based on the fact that although Sections 35, 36 and 143 of the ACJA which deal with issuance of warrants of arrest and search mention only Police officers, Section 494 of the Act defines Police officers to include any member of the Nigeria Police Force and where the context admits any officer of any law enforcement agency. It is contended by some therefore that as the SSS is a Law enforcement agency, its officers acted within the law on the 8th October, 2016. This argument can be approached from two perspective that is,

1.Whether the SSS is truly a law enforcement agency and

2.If the SSS is truly a law enforcement agency, whether the provisions of the ACJA are by themselves sufficient to legitimise the conduct of its officials on the 8th October, 2016.


That the DSS, given its narrow statutory purview, is even a Law Enforcement Agency within the contemplation of the ACJA is debatable. In other countries its counterparts who are restricted to intelligence gathering and sharing duties are not described as Law Enforcement Agencies.

Law enforcement  agencies

For this reason the South African State Security Agency (SSA) which consists of several branches declares on its website that it does not conduct arrests, searches or seizures but only operates with law enforcement agencies in this respect when the need arises. The Central Intelligence Agency (CIA) of the United States of America also states the same thing on its website. It declares that it is not a Law Enforcement Agency although it collaborates with the Federal Bureau of Investigations (FBI) in some aspects of its investigations.

The FBI is the equivalent of the EFCC in Nigeria. The reason for this may not require a rocket scientist to decipher. By its nature, the gathering of intelligence relating to national security is one that mostly requires covert operations. Security operatives saddled with such high risk work are thus often required to work without giving away their true identities or nature of their work to friends and even members of their families. But owing to the blurring of the lines in Nigeria between such specialised duties and ordinary day to day law enforcement it is common to see officers of the DSS in full gear and fully armed proclaiming to the whole world their very identity! How this will not affect the ability of the body to fully implement its “core mandate” remains to be seen.

Culled from The Vanguard

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