The DSS Raid On Sunday Igboho’s Residence Is Unconstitutional

By Aare Afe Babalola, SAN

IN the early hours of 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).
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. The scope of this power was
expanded in 1999 by Decree No. 1 of 1999 under Abdulsalami ABUBAKAR
(Gen./Rtd.) in 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. 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 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 in the
African Charter on Human and Peoples Rights.

AARE AFE BABALOLA, OFR, CON, SAN, FCIArb., FNIALS, LLD.
D.Litt.

By Aare Afe Babalola, SAN

IN the early hours of 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).
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. The scope of this power was
expanded in 1999 by Decree No. 1 of 1999 under Abdulsalami ABUBAKAR
(Gen./Rtd.) in 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. 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 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 in the
African Charter on Human and Peoples Rights.

AARE AFE BABALOLA, OFR, CON, SAN, FCIArb., FNIALS, LLD.
D.Litt.