Igbinosa SSS power of arrest
December 28, 2006 | posted by Nigerian Muse (Archives)



SSS has power of arrest
Nosakhare Igbinosa


Posted to the Web: Friday, February 18, 2005

Vanguard

In response to Chidi Odinkalu’s article that the SSS does not have the power of arrest, a legal practitioner, Nosakhare Igbinosa has said that the agency has the power of arrest. He also sent the statute establishing the organisation.

Permit me to respond adequately to Chidi Odinkalu's legal viewpoint bearing the above caption, a two part article published by your newspaper on Friday January 21, 2005 on page 24 and Friday, February 4, 2005 also on page 24 respectively. My initial reaction on reading the caption under reference was to dismiss it as one of those articles by persons whose stock-in-trade is to enlist the vilification of the State Security Service (SSS) to climb the stage of public opinion. However, as I read the article, I became alarmed for two reasons.

Firstly, there was no truth embodied in the entire article. The author twisted verifiable facts, and by embellishing these facts with clearly irrelevant case law and statutory authorities, created the false impression of a well researched article. If Chidi Odinkalu thought to educate the public on the SSS, he failed woefully. Secondly, since Odinkalu's article is supposedly a "legal" viewpoint written by a lawyer, it achieved the singular purpose of misleading the undiscerning readers into reasoning from the apriori that it must contain facts and facts alone.

I have in the true spirit of the legal profession and by the duty imposed upon me by the law and society decided to set out the facts, for in the memorable words of Alexander Stephens "the lawyers province is to aid in the administration of justice to assist the oppressed,.. .to defend the right, to expose the wrong, to find out deceit and run down vice and crimes of all grades, shades and character. What a field is his for calming passions, allaying strife, composing disputes, settling quarrels and quieting contentions

HISTORICAL ANTECEDENTS

The SSS as a security service traces its origin to 1948 when a specialized department saddled with the responsibility for procuring and disseminating intelligence on security matters was established as the "E" department of the Nigeria Police Force (NPF). As a department in the office of the Inspector-General of Police, the ‘E* Dept also known as the special branch, was in the formative years of an independent Nigeria, including the civil war years, called to procure timely and proactive intelligence. It performed this role creditably.

However, following the abortive coup of 1975 which resulted in the assassination of Gen. Murtala Mohammed — the then Head of State, it was a widely held view that the pre-emptive and proactive capability of the Special Branch had been impaired by its lack of independence. In 1976, the Military Administration of General Olusegun Obasanjo promulgated Degree 16 of 1976 which effectively excised the Special Branch from the NPF to form the Nigeria Security Organization (NSO).

The creation of NSO was informed by the need to confront the exigencies of the time represented by the intelligence challenges of the civil war aftermath, the pursuit of several foreign policy commitments and the challenge to national security posed by the abortive coup of 1976. The NSO was not only autonomous and distinct from the NPF, it possessed the composite capabilities of three organizations in one. It was responsible through its three directorates for procurement of external, military and internal Intelligence. The Decree saddled the NSO with:

i. The prevention and detection of any crime against the security of Nigeria

ii. Protection and Preservation of all classified matters relating to the Security of Nigeria.

iii. Such other purpose whether within or without Nigeria as the Head of State of Nigeria may deem necessary with a view to.

In 1986, the administration of General Ibrahim Babangida reorganized the NSO by virtue of the National Security Agencies Act of 1986. The preamble to the Act clearly encapsulate the desire of that administration to create small, unwieldy but efficient security agencies responsible for distinct aspects of national security. Thus the preamble states "An act to disband the Nigeria Security Organization and to create in its place three security agencies, charging each with the conduct of the relevant aspect of National Security and other related matters". Accordingly, the NSA Act of 1986 created three National Security Agencies:

i. The Defence Intelligence Agency (DIA);

ii. The National Intelligence Agency (NIA); and

iii. The State Security Services (SSS).

These three agencies constitute the Intelligence Community under the coordinating umbrella of the Joint Intelligence Board. It is pertinent to note that the roles set out for these three agencies are similar in every material particular to that performed by the now defunct Special Branch which metamorphosed into the NSO. The statutory roles of the SSS are set out in Section 2 (3) of the NSA Act. These

a. The prevention and detection within Nigeria of any crime against the internal Security of Nigeria.

b. The Protection and Preservation of all non-military classified matters affecting the internal security of Nigeria and

c. Such other responsibilities affecting internal security within Nigeria as the President and C-in-C of the Armed Forces as they deem necessary.

Furthermore, section 6 of the Act empowers the President to make an Instrument with respect to specific matters outlined under that section. Consequently, Gen Abubakar as Head of State invoked his powers under section 6 of the NSA Act in Promulgating the SSS Instrument I of 1999. Section I of the Instrument provides that the objective of the SSS is the Protection and preservation of Nigeria's Internal Security and economy against acts of subversion, sabotage and other threats to the stability of Nigeria.

Section 2 of the Instrument provides that the SSS shall in pursuance of the above objective perform certain functions some of which include the prevention, detection and investigation of economic crimes of National security dimension, terrorist activities, inter-group conflicts, threats to law and order, provision of protective security, vetting etc. It is note worthy that the SSS, as do the MA and the DIA (DIS) exists constitutionally by virtue of the saving clause in S.315 of the 1999 constitution which enshrined the NSA Act as an Act that exist and can only be amended in the Same manner the constitution itself could be amended.

CHIDI ODINKALU'S CONTENTIONS

From the entire article, I find four (4) manifests contentions: a. That the SSS has no power whatsoever to apprehend offenders;

b. That the SSS must rely on the NPF for "prosecutional intervention";

c. That the scope of investigation undertaken by the SSS is narrower than the Police;

d. That the cover name of the SSS (that is, Department of State Services) is illegal.

I will presently proceed to show that the above assertions are false, misplaced, unfounded and unsupported in any material particular.

I want to state without equivocation that the SSS is statutorily empowered to arrest suspected criminal offenders. This power is founded upon law and fact. Wait a moment. The legal power of arrest is not vested exclusively on the Police. Even a layman knows that a private citizen can effect arrest without warrant within parameters approved by law; and a warrant of arrest is not sine qua non to the apprehension of an offender.

Even where the law provides that a warrant of arrest must be issued in specific cases before an offender can be arrested, the warrant can be dispensed with where the crime in question is committed in the presence of a peace officer or private person, or where timely preventive measures are required. Odinkalu should dust up his books on criminal law and procedure. The issue of arrest is elementary in criminal law and criminal justice system.

The powers of the SSS to arrest with or without warrant are both statutory and derivative. For the avoidance of doubt, section 3 (1) of the SSS instrument I of 1999 provides: "For the purpose of facilitating the discharge of its functions under these instrument, personnel of the State Security Services are hereby conferred with the powers of Superior Police officer in respect of searches and arrest". In simple terms, the law vests on the personnel of the SSS the same powers of arrest vested on officers of the NPF.

As already explained, the Instrument itself is a subsidiary legislation made in accordance with powers vested on the president of the Federal Republic of Nigeria, by section 6 of the NSA Act which itself is saved by section 315 (5) of the 1999 constitution. No question arises as to the validity of this statutory instrument.

If there is a modification of the NSA Act by way of a subsidiary legislation (The SSS Instrument), the modification is valid not only because it does. not contradict or infringe the main law (the NSA Act) and by extension the constitution, but also because it gives effect to the roles of the SSS outlined in section 3 of the NSA Act. See A.G. Abia State & 35 ors v A.G.

Federation (2003) 1 S.C.M. 1 Further, the SSS is imbued with derivative powers of arrests. In other words, the powers to arrest offenders are derived from the law prescribing the offence. A clear example of this is the public Order Act, CAP 382, LFN 1990. The purpose of the Act is to "maintain public order and to prohibit the formation of quasi-military organizations, regulate the use of uniforms and other matters ancillary thereto".

Section 3 thereof provides that any Police officer of the rank of inspector or above may stop any assembly, meeting or procession for which no licence has been issued or which violates any conditions of the licence issued under section I of this Act, and may order any such assembly, meeting or procession which has been prohibited or which violates any such conditions as aforesaid to disperse immediately". The licence itself is to be obtained upon application to the Governor of the State. Other sections of the Act make elaborate provisions for apprehension, and prosecution of offenders by Police officers.

Interestingly, section 12 of the Act defines a Police officer" to include an officer of an equivalent rank in other security agencies". If the SSS does not qualify as to be described as a security agency, I wonder which law enforcement agency in Nigeria appropriately fits that definition. That is how it should be. The law evinces an intention to enable an agency entrusted with the responsibility for ensuring the internal security and economic stability of a nation to apprehend, contain or neutralize those bent on destabilizing the State.

To take this point further, it is note worthy that all the functions formerly performed by the ‘E* Branch or Special Branch of the Police Force fell to the NSO and subsequently the SSS. Presently, the regular Police are divested of these functions, which is why there is no section of the Police Force involved in the prevention, detection and investigation of State Crimes. Prevention, detection and investigation of offences such as treason, treasonable felony, espionage, sabotage, economic crimes of a national security dimension, inter-group conflicts, terrorism, separatist agitations, insurgency etc are now the exclusive preserve of the SSS.

The Official Secret Act of 1962 is a law enacted at the time when the NPF was the only law enforcement agency existing in the nascent Nigerian State. The relevant sections of the Acts (section 1,2,4,6, and 8) are espionage based and the only counter espionage agency in Nigeria at the time was the ‘E* Dept an appendage of the NPF. The ‘E* Department is now dead but the functions are now borne by the SSS. Evidence section 3(b) of the (NSA Act), which charges the SSS with the protection and preservation of all nonmilitary classified matters concerning the internal security of Nigeria. Evidence also section 2 (1) of SSS Instrument I of 1999 which charges the SSS with the protection, detection and investigation of, inter alia, threats of espionage and espionage related offences.

Evidence further the Special Tribunal (Miscellaneous Offences) Act, CAP 410, and LFN 1990 which criminalizes and penalizes willful destruction of public property (sabotage), tampering with oil pipelines, electric plants, cables, works etc, dealing in petroleum products without valid licence etc. Section 7 thereof empowers a police officer, customs officer or any member of the Armed Forces and security agencies to arrests without warrant, any person committing an offence under the Act.

That is how it should be. The tools of enforcement, of investigation and of the application of preventive or containment measures are necessarily the powers to apprehend suspected offenders with or without warrant and the power to conduct the search of properties suspected to harbour incriminating evidence as the circumstances warrant. The business of internal security is a serious one.

 

No nation with an eye for stability can create an organization, charge it with ensuring internal security and yet deliberately divest it of the very tools required to carry out its functions. Since its creation in 1986, the SSS, I dare say, has distinguished itself in the performance of its statutory functions. This is evidenced by the fact that since 1986, there has been no successful subversion of governmental process. This is the truth.

CONTENTION 2

Here, Chidi ODINKALU contends that the SSS has no powers to prosecute: therefore, it must rely on the regular Police to prosecute cases investigated by it. I beg to differ. Presently, there are three categories of persons or agencies empowered to initiate or undertake prosecution of criminal offenders. These are:

a. Persons or agencies who or which are empowered by the Act creating the agency or creating the offence to prosecute. A case in point is the Official Secrets Act, the Public Order Act, the NDLEA Act, EFCC Act etc;.

b. Where, by Sections 174 and 211 of the 1999 constitution, the Attorney General of the Federation or of a State respectively is empowered to institute and undertake criminal proceedings against any person with respect to offences created under the law; Any person or agency may prosecute provided he had applied and received Fiat, from the attorney-general of the Federation or of the State as the case may be, to prosecute. If ODINKALU had done his research well, he would have discovered that the SSS have prosecuted and continue to prosecute offenders at the magistrates, State and Federal High Courts, once requisite fiat has been received from the respective attorney-general.

As the law stands presently, the SSS does not need the regular Police to prosecute cases investigated by it. Any staff of an agency that has been called to the bar and is enrolled at the Supreme Court can prosecute on behalf of that agency provided he had:

a. Earlier obtained a fiat from the Attorney General of the Federation, if the offence is a Federal offence or Attorney General of the State if otherwise or;

b. The Attorney General does not enter a nolle prosequi against the case at any point during trial, in pursuance of his powers under section 174 (1) (c) or 211 (1) as the case may be, of the constitution.

See section 2 (1-3) of the Legal Practitioners Act, Cap 207,LFN 1990. Also see the Court of Appeal*s decision in Commissioner of Police v ALl (2003) FWLR (pt 157) at pg 1064. The court held, inter alia, that by virtue of section 79 (1) of the High Court Law cap 60, laws of Eastern Nigeria, 1963, prosecution by or on behalf of the State may be undertaken by:

i a lawyer

ii. a Police officer or

iii. A legal practitioner duly authorized in that behalf by the Attorney General or in revenue cases, authorized by the head of Department concerned.

In fact, only the Attorney General (not the court, no other body or person) can inquire as to the validity or otherwise of a prosecution undertaken on behalf of the State by an agency not being the Attorney-general*s office. See the proviso to section 5 (2) of the Special Tribunal (Miscellaneous Offences) Act (supra).

In any case, the SSS in certain cases has cause to prefer that prosecution be handled by the Attorney-General for two reasons. Firstly, most of the cases investigated by the SSS are State crimes simplicita for which the law requires the consent of the Attorney-General to prosecute. In the course of applying for consent, the Attorney general*s office takes over the case in pursuance of its power under section 174 of the constitution. Secondly, the organization did not sufficiently possess personnel skilled in the learned art of public prosecution. Happily, that is of the past. The present leadership has created a legal department endowed with some of the best legal minds the nation can boast of.

CONTENT 3

Odinkalu contends that the scope of investigation under taken by the SSS is narrower than the Police. In his view the SSS is a specialized investigative agency for crimes or acts related to the preservation of national security while the police are the general or primary investigative agency. Whatever that means! Apart from the inherent ambiguity and contradiction in the above statement, it portrays the writer as either self-serving or acting out a prepared script: the voice of Isaac but the hands of Esau.

If the writer's intention is to pit the NPF against SSS, he has failed woefully for the two sister agencies have separate, identifiable but complementary functions.

In order to avoid the trap set by the perceived sponsors of Odinkalu's supposedly legal view point, I will refrain from joining issue with him on eerie this contention. Suffice it to say that the concept of National Security is wider than general crimes, criminality, criminal justice system and law enforcement capabilities and empowerments. The scope of prevention, detection and investigation of threats against national security, which is the province of the 555, must a fortiori be wider.

CONTENTION 4

Chidi Odinkaku also contended that the cover name of Department of State Services (DSS) adopted by the SSS is illegal. Odinkalu postulates thus "within its own precincts and on its stationery (to the extent that they exist) including the identity cards and of its operatives, the SSS describes itself as the ‘Department of State Services'. This description captures the very essence of agencies like the SSS in its very subtle omission of any reference to ‘security'. SSS operations and operatives are supposed to be deniable. But to be deniable they must be legal.' Odinkalu then cited an irrelevant case law authority in order to validate his obviously misleading assertions.

With due respect, the quoted postulation is borne out of crass ignorance. I will proceed to educate Odinkalu and his likes on this matter. Firstly, the SSS has no identity card stricto sensu. Its operatives each carry a Warrant Card bearing their photographs, name, rank and signature. The front of the warrant card carries the name "Department of State Services. The logo is also embossed there on. On the back of the warrant card, at the top corner is the bold inscription "State Security Service Warrant Card".

Adjacent is the flag symbol and the acronym ‘SSS* in bold red letters directly underneath the flag symbol. Right at the centre is a certification, inter alia, that the officer bearing the warrant card is vested with all the powers, privileges and immunities of a superior police officer in accordance with the provisions of the NSA Act 1986. There is therefore nothing hidden or spooky about this warrant card. I am sure Mr. Adams Oshomole would attest to the veracity of the facts outlined above.

These powers of a superior police officer including the powers of arrests vested in an officer bearing the warrant card of the SSS, is derived as earlier stated from both the NSA Act and section 3 (1) of the SSS Instrument of 1999. Consequently, any operative of the SSS bearing the warrant card is empowered to effect arrest without reference to a warrant of arrest in the same manner as would a superior police officer.

The use of the name "Department of State Services, is both legal and administratively proper. After all, SSS is a department in the presidency under the coordination of the National Security Adviser (NSA). In fact, the concluding section of the SSS Instrument provides that the cover name of the SSS shall be ‘Department of State Services'. This is in view of the counter intelligence procurement functions of the SSS. The cover name is required to provide anonymity and protection for its operatives who are involved with the highly sensitive and dangerous business of counter-intelligence, counter subversion and counter terrorism.

This is how it is the world over. The equivalent of the SSS in the United Kingdom is the Security Service which is code named M16. Section 3 of the Security Service Act 1989, cap 5 Laws of England (United Kingdom) which refers to the British Security Service as merely "the service" provides that the function of the service "shall be the protection of National Security and in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means".

These are the very functions vested by law on the Nigerian SSS. It is pertinent to point out that the 1989 Act empowers the Security Service to enter any place or interfere with any property without recourse to a warrant issued by the courts. This has not caused any outcry in the great democracy that is U.K. This is the situation in the United States where shortly after the September 11 terrorists attack on the United States, Congress empowered the President to issue regulations enabling the FBI to take extreme measures to contain or neutralize any threat to the United States. No patriotic citizen would raise his voice against measures aimed at neutralizing threats to national security.

And the question of deniability does not arise. The functions of the SSS are set out by law. Apart from the counter intelligence functions which the SSS must per force perform under cover, other functions are performed in public glare: For example, the SSS is the only agency vested by law with the protective security of specified dignitaries and installations. Like the secret service of the U.S, this protective capability is executed in public glare. Besides, the Director General and the State Directors of the SSS are public figures whether at the Federal or State level. The deniability contention of ODINKALU is thus fallacious. One more point before I conclude. Odinkalu, in the opening paragraphs of his "legal" view point, laboured on the issue of SSS invitation of persons.

I am certain that Adams OSHIOMOLE was misquoted; because the highly educated and knowledgeable President of the Nigeria Labour Congress knows that the SSS does not require a Warrant of Arrest to validly effect his arrest. And of course, as a law abiding citizen, OSHIOMOLE would be the last person to refuse to honour an invitation of the SSS or indeed any other law enforcement agency. But to the point! An arrest whether by warrant or otherwise is only imperative under the following circumstance prescribed by law:

i Where there is prima facie evidence that an offence has been committed.

ii. Where there is reasonable suspicion that an offence has been committed.

iii. Where there is clear and present danger that an offence is about to be committed, to prevent the commission of that offence.

iv.Where incriminating evidence has been found on a person or his property during body search or in the execution of a search warrant.

v. Where an offence is committed in the presence of a person who then effects the arrests.

Contrarily, an invitation is sent out when there

is a question requiring explanation. Venue is determined by the status and residential environment of the person invited. The conditions for an arrest have not materialized but the question is so important that to abandon the need for an explanation could result in a failure of security or an intelligence failure. To refuse to honour an invitation of any law enforcement agency is not only to deny the agency of necessary assistance required to enable it do its job, but it raises certain question of conscience. It also puts a question mark on the patriotic integrity of the person rejecting the invitation, for it is the duty of every citizen to assist the law enforcement agencies in the conduct of its functions.

Finally, Odinkalu stated that in 2003, the SSS "interdicted" the travel documents of several human rights proponents at the airport departure points. The word "interdict" has no bearing with the context. The proper and appropriate word is "impounded", which means to "take legal possession of some thing".

If the passports or travel document of any person is impounded by the SSS, then it did so under powers vested on it by the law. Specifically, section 3 (2) (b) of the SSS Instrument I of 1999 provides that in the execution of its functions set out in the Instrument the SSS shall have power to "impound and keep in its custody the passports or any other property of persons or organizations under investigation if considered appropriate by the Director-General. Returns of all such seizures shall be tendered to the National Security Adviser, while such passports shall be returned to the owners as soon as the investigation is concluded'.

The law does not impose on the SSS a duty to inform the person whose travel documents have been impounded of the reason for so doing. This power is enforced by the security services the world over, and this is as it should be for Shakespeare says that "there is no art to tell the minds construction on the face". There are very credible human rights proponents whose fights for the rights of the Nigerian people are fired by patriotic ideals. There are equally many human rights proponents who for selfish gains have allowed themselves to be used not only by foreign intelligence services, but also by internal subversive elements propped up by enemies of Nigeria for the purpose of destabilizing the nation state. Only by the use of legal but restrictive tools can the chaff be separated from the grain.

CONCLUSION

The right of the press to express its views on any matter is constitutional. But there is a corresponding duty imposed on it not to write in such a manner as to destabilize or truncate the state, for in the absence of a nation, the press finds no existence. But this duty is even stricter when the information is supplied by a lawyer or the article is written by one who is held to originate from a profession known for its integrity. It was Kanu AGABI (SAN), the erstwhile Minister of Justice who in a paper delivered at the 2001 NBA conference in Calabar stated: "We (Lawyers) must be worthy ambassadors wherever we are. We must uphold that tradition of excellence for which our profession has become famous. We will never be able to do so unless we strive to educate and improve ourselves.., custom demands that we be called learned once we are qualified to practice law. But duty demands that we go beyond the dictates of custom and ensure that we are truly learned.

A call to Bar is a call to sustained and relentless sacrifice. Everyone of us must be vigilant to acquire and to promote learning, discipline and culture, particularly at this time when our country is menaced by every known evil.., instead, our profession is fast becoming characterized by intolerance, a rigid and sometimes intemperate refusal to hear the other side, ...a baseless assumption that we are right and that all those who differ from us are wrong. And we carry our self-righteousness so far as to victimize and stigmatize or even kill those whose actions are opposed to ours". The above was apt then but it is even more apt now. Evidence the "learned" write-up of Chidi Odinkalu.

Finally, it is my hope that the above response would be given equal prominence in your widely read and highly reputable newspaper, please.


 

 

 

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