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| Richarmond O. Natha-Alade |
Following recent outcries and sentiments
whipped by Omoyele Sowore, his supporters and the key players in his defence,
occasioned by his arrest and detention ordeal, everyone suddenly turned to
blame the President of the Federal Republic of Nigeria as a tyrant upon whose
authority Omoyele Sowore had been detained and undergoing trial for treasonable
felony and terrorism, among other charges. Unfortunately, most Nigerians and
persons in this shoe do not know as of fact that President Buhari may not be
aware that anybody called Omoyele Sowore is being held, detained and undergoing
trial for such offence. Isn’t that interesting? It would be justified in due
course.
For my readers to appreciate the purport and
essence of this piece vis-à-vis the legal framework of the State Security Service
(SSS) and its functions and extents, I hereby give its brief background as
follows:
The State Security
Service (SSS), self-styled as the Department of State Services (DSS), is
the primary domestic intelligence agency of Nigeria. It is primarily responsible for intelligence
gathering within the country and for the protection of senior government
officials, particularly the President and State Governors. It is one of three
successor organisations to the defunct National Security Organization (NSO), dissolved in 1986. The SSS is under the
control of the National Security Adviser.
Ex-President, Ibrahim Babangida in June 1986 issued Decree Number 19, dissolving
the National Security Organization (NSO) and re-structuring Nigeria's security
services into three separate entities under the Office of the Coordinator of
National Security. The State Security Service (SSS) was made responsible for
domestic intelligence. The National Intelligence Agency. (NIA) handled external intelligence and counter-intelligence.
The Defence Intelligence Agency (DIA) was responsible for military-related intelligence outside
and inside Nigeria.
The mission of the SSS is to
protect and defend the Federal Republic of Nigeria against domestic threats, to
uphold and enforce the criminal laws of Nigeria, and to provide leadership and
criminal justice services to both federal and state law-enforcement organs. The
SSS is also charged with the protection of the President, Vice President,Senate President, Speaker of House of Representatives, State Governors and Deputy Governors, spouses, certain candidates for the offices of President
and Vice President, and visiting foreign heads of state and government. The SSS
has constantly adapted to various roles necessitated by evolving security
threats in Nigeria including counter-terrorism and counter-insurgent.
The Enabling
Law under which DSS Operates
Sequel to the disbandment of National Security
Organization by Ex-president Babangida regime in 1986 and the issuance of
Decree 19, same lasted and became part of the consolidated Laws of the
Federation of Nigeria (LFN) now known as the National Security Agencies Act, CAP 278 of the Laws of the Federation
of Nigeria, 1990. Section 2 (3) and (4)
of the enabling law specifies the powers and functions to the State Security
Service as earlier mentioned and same includes liaising with relevant agencies
in the arrest and prosecution of any person found wanting of the provisions of
the Act as it relates to security of Nigeria and its elected chief executives
and/or Officials. The roles and functions of SSS has been given Judicial
Imprimatur in the case of DIRECTOR OF SSS & ORS V AGBAKOBA (1999) LPERLR-
954(SC), at page 22 Paragraphs A-E Me Lord Uwais J.S.C. in a unanimous decision
held as follows:
“The duties of the SSS are spelt out under
Section 2 subsections (3) and (4) of the National Security Agencies Act, Cap.
278 of the Laws of the Federation of Nigeria, 1990. It provides: "2(3) The
State Security Service shall be charged with responsibility for- (a) the
prevention and detention within Nigeria of any crime against the internal
security of Nigeria; (b) the protection and preservation of all non-military
classified matters concerning the internal security of Nigeria; and (c) such
other responsibilities affecting internal security within Nigeria as the
National Assembly or the President, Commander-in-Chief of the Armed Forces, as
the case may be, may deem necessary. (4) The foregoing provisions of this
section shall have effect notwithstanding the provisions of any other law to
the contrary, or any matter therein mentioned."
In the light of the above, could it be said
that the Department of State Security acted ultra vires its power as donated to
it by the enabling laws in the arrest and prosecution of Omoyele Sowore
accordingly? The answer is not far-fetched, as same is obviously found within
the line of law and reasoning.
On the
propriety of badging every crime on the President Chest and seeking his
intervention in every judicial process that seems of National concerns:
It is not only sad but disgusting, the shared
ignorance borne out of irrational temperance and cerebral laxity of many
members of the Nigerian populace attributing and heaping all sought of
abnormalities, disobedience of court order, mal-administration, societal
decadence and general failure of any public institution on the office of the
President of the Federation.
The responsibilities attached to the office of
the president of a country is so enormous that if he faces foreign policy alone
by attending to correspondences, meetings and engagements from the 192
countries of the world, he could never finish, not to talk of being fully involved
in activities of 45 ministries, about 380 Boards (above number of days in a
year), 210 agencies, Tasking Security reports from all security agencies from
all round the Federation, State Governors and Government activities e.t.c; all
these outside the duties imposed by the constitution and other enabling laws of
Nigeria couple with activities and briefings from other arms of government,
which are also at all time critical.
Criticism is cheap, it takes whoever wears a
shoe to know where it pinches. It is not only laughable but ridiculous that
many men who cannot rule one wife and three children successfully and/or, who
cannot attempt to rule two or more wives of same tribe under same roof and who
cannot successfully lead a group of 20 men without serious problems are always
in the fore front of those who easily criticize and condemn a president who
leads above 200 million men and women of different tribes and culture in an
African country with extensive land mass and so much complexities as Nigeria.
The above picture is painted to lets
appreciate the enormous tasks and importance attached to the office of a
president of Nigeria; in the circumstance, could anyone not imagine and satisfy
his soul that someone as busy as Nigeria president may not be aware Sowore is
being detained or prosecuted? If the SSS are performing their lawful duties and
President Buhari never made a comment of awareness, Why fighting the wind?
Sowore is like every normal Nigerian, he has been accused of terrorism, treasonable felony and conduct likely to breach public peace among other offences. I earlier suggested in my earlier article that sowore ought to seek political solution before it is too late. see: REVOLUTION: Sowore was not properly advised, He may be sentenced to death
https://lordricharmond.blogspot.com/2019/08/revolution-sowore-was-not-properly.html
Unfortunately,
None of Sowore and/or his supporters would help matter. Sowore in his penultimate
day in court was seen chanting Revolution in open court, behaving unruly and
addressing press men in an inappropriate manner, despite the pendency of his
case in court. That in itself is enough to deny him bail; because he has high
tendencies to continue in the offence for which he is been charged when
released on bail; granting him bail in the circumstance is against the guiding
principles of law on bail. The fact of his case is simple, clear and
distinguishable from the constitutionally guaranteed right to peaceful and
lawful protest. I refer to my last article where I begged to differ from the position
of revered learned Silk Femi Falana, SAN. Read up: #RevolutionNow: Femi Falana, SAN Slipped! He Compared
Two Parallel Dead Ends
Anyone who expects President Buhari to be in over 5, 000 police
stations across Nigeria, 500 army and naval bases across the country and about
over a thousand EFCC, ICPC, DSS, Customs, NAFDAC, SON, Civil Defence and other security, regulatory and
enforcement agencies offices/stations spread across the country so that he
could intervene in respect of all crimes of anyone arrested and accused of
commiting an offense must be subject to mental examination.
Sowore is only one person of the over Two Hundred Million Nigerians
who is subject to laws and regulations. The SSS has obligations to perform their
duties under the law. Our president is far busy than to being dragged to
intervene in the affairs of all criminally inclined persons who are arrested
and charged accordingly. There are over a thousand things to be done by office
of the President than silly intervention in crimes and prosecution of arrested
persons which is just 1% fragment of issues of the entire national concerns.
The shocker
is; President Buhari may not even
know Omoyele Sowore exists. If there is disobedience of court order, why not
ask the relevant agencies concerned and drag their respective heads or coordinating
leadership to court for contempt and let them be decisively dealt with, instead
of blaming all societal ills across Nigeria on President Buhari. Some would
even argue, President Buhari is the reason Bobrisky is cross-dressed, President
Buhari is the reason Nigerian police men who arrested Wadume were killed by
corrupt army officers, President Buhari is the reason some pastors / Imams are duping
and harassing their female members, President Buhari is the reason why
lecturers are corrupt and exchanging sex for marks; as a matter of fact,
President Buhari is the reason they cannot satisfy their wives in bed. What blame
would Buhari not take for being Nigerian President? Many lazy Nigerian Youths
with low intelligence quotient and almost no knowledge in anything, who rates
BB Naija Show above leadership and matters of importance and national concerns
that should ordinarily influence their lives and future would rather blame the
president for their misery. Where is the hope for this generation?
The law
prohibits President Buhari or any person whatsoever to intervene and influence
criminal investigation and prosecution
The position of Law is clear that no one is
allowed to obstruct the course of justice, influence same or allow same to be
influenced. The law only allows anyone convicted of a crime to be pardoned by
the President or Governor if the offence is that of Federal or State
respectively; if such president or Governor so wishes under prerogative of
mercy arrangement. But that comes only after conviction, not in the process of investigation
and prosecution. In the United States and most part of the advanced world, it
is an impeachable offence considered to be against the constitution and the
oath of office for the president or anyone in authority to influence investigation,
not to talk of prosecution.
For there to be a claim of
obstruction of justice, a legal
proceeding has to be underway. The legal proceeding can be an
investigation, a trial, or an inquiry in the pursuit of justice. To obstruct
justice, a person must knowingly and/or willfully interfere with the pursuit of
justice. This interference could be in the form of a threat to a witness, judge,
or other legal officials. Interference could also be in the form of physical
harm, undue influence or even hindering in the discovery or apprehension of a
suspect for a crime. A person who provides information that they know to be
false in the course of an investigation or legal process may also be accused of
obstruction of justice.
It is gross corruption and abuse of office
which any offender can be arrested and charged under relevant laws to call and
ask for the intervention or influence of the president or authorities in
criminal process with the sole aim or intention of obstructing the course of justice.
It is more damning when same issue is already placed before the court for adjudication.
It is not enough to heap blames on the
president of the nation for any misgivings occasioned by any institution of
government, which is expansive and complex beyond any iota of imagination. Our laws
and the system must be made strong enough to punish culprits without trading
words targeted at blaming the president for all.
Interest of
Nigeria as a Nation is Paramount than that of any individual
In all, the National interest remains paramount
above individual interests. In recent past, many persons who constitutes National
threat and who are ordinarily not entitled to bail were granted bail. I recommend
that expert advice in deserving cases on security and intelligence issues be
duly considered by our courts prior to making orders. Although, the grant or
refusal bail is discretionary, yet, the law is trite that every discretionary
power should not be arbitrarily used and/or based on the whims and caprices of
the user, but must be exercised judicially and judiciously. The rights of
parties before the court must at all time be duly considered. The legal principles
for grant or refusal of bail should be at all time duly considered as expatiated
by Me Lords of the Apex Court in the case of Dokubo-Asari v. FRN (2007)
LPELR-958 SC ( Pp. 9-11, paras. B-E)
"When it comes to the issue of whether to
grant or refuse bail pending trial of an accused by the trial Court, the law
has set some criteria which the trial court shall consider in the exercise of
its judicial discretion to arrive at a decision. These criteria have been well
articulated in several decisions of this court. Such criteria include, among
others, the following: (i) the nature of the charge; (ii) the strength of the
evidence which supports the charge; (iii) the gravity of the punishment in the
event of conviction; (iv) the previous criminal record of the accused if any;
(v) the probability that the accused may not surrender himself for trial; the
likelihood of the accused interfering with witnesses or may suppress any
evidence that may incriminate him; (vii) the likelihood of further charge being
brought against the accused; (viii) the probability of guilt; (ix) detention
for the protection of the accused; (x) the necessity to procure medical or
social report pending final disposal of the case. See: Bamaiyi v. State (2001)
8 NWLR (Pt. 715) 270; Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Ani v. State
(2002) 1 NWLR (Pt. 747) 217; Ekwenugo v. Federal Republic of Nigeria (2001) 6
NWLR (Pt. 708) 171; Eyu v. State (1988) 2 NWLR (Pt. 78) 602. The criteria are
not exhaustive. Other factors not mentioned may be relevant to the
determination of grant or refusal of bail to an accused. They provide the
required guideline to a trial court in the exercise of its discretion on
matters of bail pending trial. My learned brother, Uwaifo, JSC, has this to say
on these factors: "In that regard it is proper to consider the nature of
the offence, the nature of the evidence in support of it, and the severity of
the punishment which conviction will entail. The learned trial Judge took this
critical factor as to availability to stand trial into consideration ... These
are not matters that should be glossed over. Some of them may not be admissible
as evidence in the main trial but they are certainly worthy to be taken into
account in an application for bail pending trial." See the case of Bamaiyi
v. State (supra) at page 292. In his contribution in the above case at pg 294,
Ogbuegbu, JSC, stated: "The court has in most cases, discretion to admit
an accused person to bail pending trial, but in the exercise of the discretion,
the nature of the charge, the evidence by which it is supported, the sentence
which by law may be passed in the event of conviction, the probability that the
appellant will appear to take his trial, are the most important ingredients for
the guidance of the court and where these are weighty, an appellate court will
not interfere. See: In the matter of Etienne Barronent v. Edmond Allian I. E.
and B. I. (1852) Dears 51; 118 E. R. K.B. 337 and Re Robinson (1854) 23 L.J.Q.B
286." Per MUHAMMAD ,J.S.C
In same case of Asari- Dokubo which is a
reiteration of Bamaiyi case, the Supreme court has emphasized the rights of
Nigeria as a Nation as above that of every individuals, hence Per MUHAMMAD ,J.S.C at P. 38, paras. B-E
held viz;
"The
pronouncement by the court below is that where National Security is threatened
or there is the real likelihood of it being threatened, human rights or the
individual right of those responsible take second place. Human rights or
individual rights must be suspended until the National Security can be
protected or well taken care of. This is not anything new. The corporate
existence of Nigeria as a united, harmonious, indivisible and indissoluble
sovereign nation, is certainly greater than any citizen's liberty or right.
Once the security of this nation is in jeopardy and it survives in pieces rather
than in peace, the individual's liberty or right may not even exist."
By law, It should be Nigeria first before any
Nigerian or group of Nigerians. Court or any of its officials do not carry gun
to fight bandits, Lawyers do not enter Sambisa forests, bloody civilians do not
suppress riots or insurgency of huge weaponry, the Journalists do not fight war.
Where is Nnamdi Kanu today and what is he doing where he ran to? he jumped bail
and persists in his crime while building and encouraging other criminals. What were
the gimmicks of El-zazzaky with joint external forces; If not for the wisdom, exercised by the Kaduna State Judge who gave El-zazakky
bail condition and the compliance procedure wisdom exercised by the State? We should
at least be sure that if Abubakar Shekau
of boko haram is arrested today, he would not be unleashed on us and/or sent
back to us by being released on bail the moment he is caught. Experts’ advice
and/or opinions on security / intelligence issues should not be treated with
kid glove, but with great concerns and carefulness in giving qualified freedom
to individuals whose conduct constitutes threat to national security.
May God endow our Honurable Judges and
Justices with more wisdom to read between the lines and do just on matters that
affect national interest and security. May we never know the price of peace.
Richarmond O.
Natha-Alade is a legal
Practitioner and Principal Partner at
Sun Natha-Alade &
Partners (SNATHAP)
lordricharmond@gmail.com
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