Igbinosa SSS power of arrest
December 28, 2006 | posted by Nigerian Muse (Archives)
SSS has power of arrest
Posted to the Web: Friday, February 18, 2005
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
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
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
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
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
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
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
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
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
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
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.
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.
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
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
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
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.
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
Finally, it is my hope that the above response would be
given equal prominence in your widely read and highly reputable newspaper,
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