A Senior Advocate of Nigeria (SAN), Aare Afe Babalola, has said the raid on Sunday Igboho’s residence by the operatives of the Department of State Services (DSS) is unconstitutional.
Babalola said the DSS carried out the raid on Sunday Igboho’s residence calls to question its legality.
Chief Babalola said he does not endorse agitation for the breakup of Nigeria, but the fact remains that Sunday Igboho is a citizen of Nigeria and therefore enjoys certain fundamental rights enshrined in our constitution.
It will be recalled that Thursday, 1st July 2021, a joint team of security operatives consisting of the DSS and the Nigerian Army raided the residence of Chief Sunday Adeyemo, popularly referred to as Sunday Igboho in Ibadan, purportedly based on the intelligence that he had stockpiled arms.
According to the DSS press report, two of Igboho’s armed men were gunned down in the course of the exchange of gunfire.
Undoubtedly, the manner with which the joint security operatives carried out the raid on Sunday Igboho’s residence calls to question its legality.
Without prejudice to the fact that I do not endorse agitation for the breakup of Nigeria, the fact remains that Sunday Igboho is a citizen of Nigeria and therefore enjoys certain fundamental rights enshrined in our constitution.
Therefore, in this edition, I will proceed to consider the constitutionality or otherwise of the raid of the joint security operatives on the residence of Sunday Igboho.
To begin, it is pertinent to recall, also that, in the early hours of 8th October 2016, Nigerians awoke to reports of the invasion of the houses of several judicial officers by officers of the State Security Service or Directorate of State Services (DSS).
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In the course of the said invasions, the homes of the judges were searched and some of them arrested.
It was also reported that the search led to the discovery of huge sums of money in local and foreign currency.
For a long time, arguments went back and forth from several quarters as to the propriety of what seemed a brazen attack on the Nigerian judiciary.
The question which agitated most minds then was that if judicial officers, including Justices of the Supreme Court, are not immune from invasion by the nation’s secret police, what then is the fate of the average Nigerian? In this column, I provided answers to this question.
The powers of the DSS under the Law
The Department of State Services (DSS) is a creation of the National Security Agencies Decree 19 of 5th June 1986.
Section 1 of this Decree empowered the DSS to prevent and detect any crime against the internal security of Nigeria, protect and preserve all non-military classified matters concerning the internal security of Nigeria, and such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be, may deem necessary.
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The scope of this power was expanded in 1999 by Decree No. 1 of 1999 under Abdulsalami ABUBAKAR (Gen./Rtd.) in the exercise of his powers as President, Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria.
The powers of DSS now includes: (i) Prevention, detection and investigation of: Threat of Espionage; Threat of Subversion; Threat of Sabotage; Economic crimes of national security dimension; Terrorist activities; Separatist agitations and inter-group conflicts; Threat to law and order (ii) Vetting of: Prospective appointees to public offices; Vital and sensitive corporate organisations before their incorporation in Nigeria and continuous covert monitoring of their activities to ensure that they are in line with national security interest; 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.
Clearly, the powers of DSS as stipulated by the extant laws do not encompass any power of investigating the stockpile of arms, as stated in its public report following the raid.
Indeed, it is the function of the police, under Section 4 of the Police Act, to prevent and detect crimes, and to maintain public safety, law and order, among others.
Given the narrow statutory functions of the DSS, it is highly debatable whether it is even a law enforcement agency within the contemplation of the Administration of Criminal Justice Act.
In other countries, its counterparts, who are restricted to intelligence gathering and sharing duties, are not described as 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 when the need arises.
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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.
Clearly, the invasion of Sunday Igboho’s residence was not in collaboration with the police or with the knowledge of the Oyo State governor, Mr Seyi Makinde, who, by the provision of Section 176(2) of the 1999 Constitution, is the Chief Executive of Oyo State, and by virtue of this constitutional provision, also doubles as the state’s Chief Security Officer.
Breach of the applicable fundamental rights provisions
Chapter IV of the 1999 Constitution generally makes provisions for the fundamental rights of Nigerians. While Section 39 establishes a citizen’s right to freedom of expression and to hold opinions, Section 40 guarantees the citizen’s right to peaceful assembly; and Section 41 creates the right to freedom of movement. Undoubtedly, Sunday Igboho was acting under these constitutional provisions to express his personal opinions, hold rallies, and to move about freely within Nigeria. However, following the invasion of his premises, these rights are being seriously infracted. Although Section 45 of the 1999 Constitution permits the derogation from these rights, it is however only in the interest of defence, public safety, public order, public morality or public health, and for the purpose of protecting the rights and freedom of other persons. It can scarcely be argued that the invasion of the premises of Sunday Igboho is on the ground of public interest as the stifling of the right to expression can never be said to be in the public interest. Even if it is, such operation ought to have been carried out by the police statutorily saddled with the power of prevention and detection crimes, and the maintenance of public safety, law and order.
The courts have, in the past, made it clear that the DSS lacks powers outside its statutory purview, state security matters. In Mufutau Balogun & Ors v. Attorney-General of the Federation (1994) 5 NWLR (Pt. 345) 442 at 456, the Court held thus: “…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 is it 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 a necessary statement from the defendants in their own office…”
No-knock warrant
The commando, no-holds-barred style with which the joint security operatives stormed the premises of Sunday Igboho is akin to the no-knock warrant system being operated in the United States of America. A no-knock warrant is a warrant issued by a judge in the United States that allows law enforcement officers to enter a property without the immediate prior notification of the residents, such as by knocking or ringing a doorbell. In most cases, law enforcement will identify themselves just before they forcefully enter the property. It is issued under the belief that any evidence they hope to find can be destroyed during the time that police identify themselves and the time they secure the area, or in the event where there is a large perceived threat to officer safety during the execution of the warrant. Though in principle, the no-knock warrant system is similar to the method adopted by the security operatives in the attempt to apprehend Sunday Igboho, it yet remains incomparable as the order of a judge is required to obtain the said warrant, and it was established primarily to effectively tackle the menace of drugs in their society.
Conclusion
Certainly, more has to be done concerning the effective administration of the Nigerian criminal justice system.
The DSS has no place meddling in the affairs of apprehending perceived offenders, particularly where state security is not being jeopardised. Doubtless, the menace of banditry and terrorism by the Boko Haram sect constitutes a greater threat to national security and is more deserving of the attention of the DSS and other security agencies.
Our security operatives ought to be held to a higher standard in derogating from the sacrosanct fundamental rights of Nigerians enshrined in the 1999 Constitution and the African Charter on Human and Peoples Rights.
AARE AFE BABALOLA, OFR, CON, SAN, FCIArb., FNIALS, LLD. D.Litt.
