DSS: Stamping on the Rule of Law

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Coup d’État

The coup d’état, that is, the forceful takeover of power by the military, which took place in Republic of Niger last week, I think the sixth in Africa in less than three years –  occurring in the contiguous States of Burkina Faso, Chad, Guinea, Mali and Sudan – should be something that any smart African leader should be concerned about, most especially a country like Nigeria, since not only are these countries close by, Niger borders Nigeria in seven States in the North West and North East, particularly Borno and Zamfara, which are already besieged by insurgency and  banditry. For one, coups are unconstitutional, at least in Nigeria – Section 1(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), and outdated, or so we thought, believing that the coup era/military rule was no longer in vogue in Africa. 

Some of the reasons for coups, are deficient or bad governance; unhealthy economy and poor use of opportunities; corruption; questioning the legitimacy of a government or refusal to accept defeat in an election; poor management of diversity in multi-ethnic, multi-religious societies; poverty; insurgency; insecurity; oppression and repression of the people, to mention but a few. 

And so, when people like my humble self, shout repeatedly from the rooftops, for all who care to listen, that in our country, there is an urgent need for good governance, equity, fairness, observance of the rule of law and the like, it is because the existence of many of the elements that cause these unconstitutional change of governments are apparent all over Africa, Nigeria included. Government must be more sensitive to the needs of Nigerians, they themselves must embrace the ‘Low Profile/Austerity’ Government Lifestyle of the 1970s, eschewing the ostentation  that currently subsists. Coup d’états can be contagious, and a winning combination that fuels same is success of other coups, especially if they occur in nearby countries, coupled with a dissatisfied populace. 

In fairness to the Tinubu administration, it is only two months old, and while it cannot be held responsible for the mess that successive governments have put us in, most especially the immediate past Buhari administration which seemed to have left us worse off than it met us, going forward, if President Bola Tinubu doesn’t make the right choices as to who will serve in his cabinet and implement good policies to turn our fortunes around, our future may be bleak.

Ministerial Nominees & Gender Disparity

Granted, this administration didn’t exactly hit the ground running by waiting for almost 60 days to nominate 28 Ministers, not even the complete number. But, for those saying that President Tinubu is in breach of the Constitution in not appointing all the Ministers within 60 days, they obviously haven’t read the proviso in Section 147(7)(a) of the Constitution which allows the President to appoint a Minister anytime during his tenure, subject of course to confirmation by the Senate.

For President Bola Tinubu who started the trend of appointing Female Deputy Governors, and Vice President Kashim Shettima who I once heard refer to himself as a “Committed Feminist” in his Keynote Address at the 2017 Murtala Muhammed Foundation Memorial Lecture, so far, their administration has fallen short of expectations in terms of the number of Female nominees for Ministerial appointments. It would also have been ideal to attach portfolios to all the Ministerial nominees, so that the Senate screening would have been a proper test of knowledge for the roles that all the nominees are being assigned to, and we would be sure that round pegs are being placed into round holes.

So far, the Tinubu administration has not reached the expected minimum of 35% in terms of Female participation in governance (affirmative action), with only seven women Ministerial-nominees out of 28 (25%), instead of a minimum of 9.98 which must be rounded up to 10. We understand that, in total, 43 Ministers are to be appointed, and we expect that at least, 15 or 16 of them should be Female; though the National Gender Policy 2006 which actually set its aim at 30% female participation in governance, has not yet succeeded in achieving most of its goals. 

It would also be extremely offensive, if the Female appointees are all made Junior Ministers, like in the male chauvinistic Buhari administration, where apart from Ministry of Finance, Women Affairs (obviously) & Humanitarian Affairs (which may also be considered to be a somewhat Motherly-type Ministry, hence a Female Minister), all the other Female Ministers were Ministers of State. This was indeed, extremely shameful and insulting, and a repeat of same by the Tinubu administration, would show that Nigeria is regressing. See Section 42(1)(a) of the Constitution which prohibits discrimination inter alia, on the basis of sex. The three Female Senior Ministers in the Buhari administration, were all from the Northern part of the country. This time, we want to see a better distribution of positions. See Section 14(3) of the Constitution. 

Adventures of the Unruly & Recalcitrant DSS: The Movie – Act 1, Scene 1

It is obvious that, in Nigeria, contrary to Baron de Montesquieu’s doctrine of Separation of Powers, the third arm of government, the Judiciary, is not seen as a co-equal arm of government. It is seen as a distant third in rank in the hierarchy of government, or maybe not even ranking at all, with the Executive being first, and the Legislature, second. If this isn’t the case, the Department of State Services (DSS) would not have unleashed such an attack within a sitting court’s premises, complete with gun-toting Operatives, while flagrantly flouting the order of a court of competent jurisdiction. To strengthen a country and keep the occurrence of coup d’états away, the Judiciary and Legislature must be strengthened. Ensuring that the Judiciary is independent and the rule of law reigns supreme, are two ways to strengthen the Judiciary. If anything, the DSS’s mission statement seems to be to weaken and rubbish the Judiciary, and I call upon the incoming Attorney-General of the Federation, to resist this. 

During the Buhari administration, Act 1 Scene 1 of the DSS Movie started with the unprecedented raid by DSS Operatives on the houses of judicial officers in the dead of night in October, 2016, as if there was a BOLO (Be on the Look Out) or APB (All-Points Bulletin) out on them, to look for criminals suspected to be armed and dangerous, and had to be apprehended by hook or by crook! The touch of sarcasm in that previous sentence, is meant to underscore the fact that the kind of treatment that was meted out to those judicial officers in that unfortunate incident, is what is done to aggressive suspects or criminals who are on the run from the law.

At the time, even though it was a week or two into my Editorship of this esteemed publication, I thoroughly condemned the DSS’s actions. Section 1 of the National Security Agencies Act 1986 (NSA Act), establishes the DIA (Defence Intelligence Agency), NIA (National Intelligence Agency) & SSS (State Security Service) and sets out the functions of these agencies in Section 2, particularly that of the SSS provided in Section 2(3) of the NSA Act (what is the DSS? On their website, the DSS seems to pass itself off as the alter ego or doppelgänger of the SSS); the functions do not include bullying, oppressing, intimidating and harassing people in a democratic society. Their kind of behaviour is characteristic of a military/autocratic/totalitarian system in which fundamental rights are not guaranteed, and the ruler makes use of Secret Police to intimidate and keep the people in line. See Chapter IV of the Constitution. Also see the case of Director of SSS & Anor v Agbakoba (1999) LPELR-954(SC). The position of the DSS should be properly regularised in the law; if the SSS is now the DSS, or the agency has two names, and it’s functions clearly stated, as some of it’s activities don’t seem to be in line with Section 2(3) of the NSA Act. Certainly, unlawful possession of a shotgun is a Police matter, and not one for the SSS. Anyway, no agency without a comprehensible and lawful mandate, has any place in a democratic society. In fact, a senior Lawyer told me that he once sued the DSS, and the first thing their Counsel did was to bring a preliminary objection that the agency is not known to law! What kind of mischief is that?!

Policing in a democratic society, is subject to the rule of law, and, whether secret or open law enforcement agencies, they cannot be a law unto themselves, or exist simply  to satisfy the whims and caprices of leaders. Law enforcement in a democratic system, is there to ensure that there is a proper balance between societal order and liberty, so as to avoid anarchy and repression. If anything, the DSS seems to be spearheading oppression and repression.

Act 1 Scene 2 & 3

Act 1 Scene 2 & 3 were played out with the Legislature in July and August, 2018, when the Senate President of the 8th National Assembly, Dr Bukola Saraki was first prevented by the DSS from leaving his house, and subsequently, members of the National Assembly were locked out of their premises by the DSS.

Act 2, Scene 1

Last week, Act 2 Scene 1, played out in a scene in which the world saw the atrocious behaviour of DSS Operatives in the premises of the Federal High Court, Lagos Division; in fact, initially, I thought I was watching a Nollywood movie. The disgraceful  incident went beyond  ‘contempt ex facie curiae’ (contempt not in the face of the court) – see the case of Atake v AGF & Anor (1982) LPELR-586(SC) per Chukwunweike Idigbe, JSC; not just because the court order that Mr Godwin Emefiele be remanded at Ikoyi Correctional Facility pending the fulfilment of his bail conditions, was obviously disobeyed by forcibly returning him to DSS custody, but because the display by the DSS was an affront on the Judiciary; it showed a total lack of respect for the Judiciary and the rule of law. What if those armed DSS Operatives had discharged their weapons, and injured or killed any of the Judges, Lawyers, Staff or members of the public present in the court premises that day? That would have been disastrous.

My position has nothing to do with sympathy for Mr Emefiele and his current travails, as I have also suffered like millions of other Nigerians from some of CBN’s nonsensical policies under his watch; what I feel pity for, is the desecration of the temple of justice, the constant attempts by the Executive to undermine the Judiciary and the trampling upon of the rule of law in Nigeria. I expected that, by now, the DG of DSS would have been facing disciplinary action, for his Department’s embarrassing gross abuse of office/power – a carry over from the military days, in which such behaviour was the norm. See Section 104 of the Criminal Code Act and Offoboche v Ogoja LG & Anor (2001) LPELR-2265(SC). Also see the  Fifth Schedule to the Constitution Part 1 Code of Conduct for Public Officers.  

I would have imagined that the Tinubu administration would want to distance itself from the high-handed Gestapo tactics, to convince the world that, indeed, it is no longer business as usual in Nigeria, but a new dawn. What transpired at the Federal High Court Lagos court premises, is a total repellent to Foreign Direct Investment (FDI). Why would foreigners want to invest in a country, where in broad day light, masked security agents can brazenly enter the sacred temple of justice and behave as if they are in the ‘Wild, Wild, West’? 

Establishing a Committee to investigate the DSS’s deplorable behaviour in the court premises, when the world already saw what transpired on international television, seems simply like the usual ruse deployed by Government to divert attention from embarrassing incidents; the usual way that the Nigerian Government has always treated matters which it intends to do nothing about. It is a tactic which we Yorubas refer to as “gba, jé kin simi” (take, and let me rest). Nothing tangible ever comes out of such futile Committees. What was the outcome of all the #EndSARS Committees? Almost  three years after, apart from some monetary compensation paid to victims here and there, was there even any true reform of the Police? No.

Conclusion 

It seems that it is decision-making time, not just on who to appoint as Ministers, but what Government wants Nigeria to look like, going forward. Presently, Nigerians are in a great deal of pain and suffering, and are in urgent need of succour, not drama. 

Apart from immediate palliatives, we obviously require economic investment. If we continue to regress in our democracy and incidents like the DSS Act 2 Scene 1 continue to be a regular occurrence in Nigeria, we may only be able to attract investments from developed countries who have no regard for the rule of law – Russia, China, North Korea and the like. And, while business with these countries is not a bad thing, as long as Nigeria derives the benefits that accrue to her, I believe that we should also strike the right balance and respect the rule of law in our country, not just so that the fundamental rights of Nigerians are assured, but so that Nigeria remains open to  other developed countries including but not limited to USA, UK, France, and Germany, for trade, and not just be at the mercy of a few. See Section 16 of the Constitution.  

By the way, I hear that the Chinese are not only manufacturing ‘adirè’ (Yoruba tie and dye fabric, which Abeokuta, Ogun State is famous for) in China, but they are also frying ‘kose’ (akara or bean cake) in Katsina! There’s a difference between investment and rendering us redundant, and this could very well happen if we have no other option but to accommodate a particular type of country that has absolutely no qualms in creeping into Nigeria under the guise of FDI, stealing our ideas and taking over as many of our sources of livelihood as possible, even at the lowest levels, when no one else is interested in coming to sink any serious investment in Nigeria, because of our total disregard for the rule of law. A word, they say, is enough for the wise!