Scope And Limits Of Investigative, Procedural Agencies

In this analysis on the ongoing discourse on the raid on the homes of some jurists across the hand by security operatives, WAHAB SHITTU, a law teacher at the University of Lagos (UNILAG), says the Department of State Services (DSS) has not stepped out of bounds once it acted in accordance with the extant laws.

My reluctance to comment on the propriety or otherwise of recent arrests of judges is strategic. Being a private public prosecutor for EFCC (Economic and Financial Crimes Commission), I have a duty not to prejudice the process. Secondly, I am aware that investigations are ongoing and I do not want to preempt the process. Thirdly, I am conscious of the fundamental rights of parties involved in the process including suspects and so careful not to make prejudicial comments. Fourthly, the judiciary, the constituency to which I belong, appears to be on trial reflecting a period of sober reflections.

Notwithstanding the above, the diversity of reactions that have greeted recent mass arrests of judges is understandable. This is the first time such an unprecedented development will take place, at least, in Nigeria. Secondly, while many are agreed on the need to fight corruption there is still a controversy on the means and methods of actualising that objective. Thirdly, while there appears to be a general consensus on the need to move against corruption, the elephant in the room, there is still the incontrovertible fact that such crusade must be carried out within the ambit of the rule of law. Fourthly, what constitute infraction of the rule of law is far from being settled. There are those who contend that infractions of legal rules and processes are against the rule of law and this is eminently the popular view. There are also others who subscribe to the theory that corruption manifested in the deprivation and appropriation of public resources, constituting common wealth by anyone is also an invasion of the rule of law and a breach of the fundamental rights of those whose assets are so misappropriated.

These reactions stem from either a commendation or condemnation of the actions of the security agencies depending on where the commentator stands in the equation. Those who condemn the DSS (Department of State Services) alluded to alleged non-compliance with due process and rule of law prescriptions in carrying out the operations. The opposing views disagree. The Attorney-General of the Federation, Mallam Abubakar Malami SAN, is quoted to have said: “Corruption is a crime and nobody, regardless of how highly placed, is exempted”, Prof. Sagay said: “what has happened…is a rapid descent into the world of mammon, where cash dictates justice”, Prof. Akin Oyebode also said: “Judges that are caught, let them be burnt at the stake or fall at the guillotine. No tears should be shed…” Senate President, Dr. Bukola Saraki, however, said: “Any act of anti-corruption action that goes against the rule of law does not help the corruption fight”. These eminently expressed views are correct depending on the perspectives and the circumstances.

The essence of this intervention is not to join issues on the merits or otherwise of this conflicting positions because views expressed will differ, depending on perspectives and the divide upon which you stand in respect of the controversy. More importantly, it may be premature at this stage to take positions since investigations are ongoing, the rights of persons and organisations are involved and details are yet to fully emerge. It is however useful to deepen popular consciousness by examining the scope, powers, and limits of investigative and prosecutorial agencies, so that members of the larger public could be guided with a view to contributing to the debate.

Powers of the attorney-general
We begin our analysis by examining the powers of the Attorney-General of the Federation. Section 174(1) of the Constitution of the Federal Republic of Nigeria (as amended) state as follows:

“(1) The Attorney-General of the Federation shall have power –
• To institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;
• To take over and continue any such criminal proceedings that may have been instituted by any other authority or persons; and
• To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
• The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.
• In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”

Clearly from the above, the attorney-general is the chief law officer of the federation, the legal adviser to the federal government and the custodian of the observance of the rule of law as far as Federal Government agencies are concerned. Importantly, agencies of the Federal Government and statutory bodies of all categories must defer to his office in terms of quality legal advisory services, guidance and directives. This is however without prejudice to recognition by the office of the powers conferred on other agencies and statutory bodies by statute.

The police
The functions of the police are regulated by Section 4 of the Police Act which provides as follows:
“The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property, and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”

It seems from the above that investigation of all crimes without exception is within the purview of the Nigerian Police Force.

The DSS
This body is established pursuant to National Security Agency Act No. 19 of 1986 as “An Act to disband the Nigerian Security Organisation (NSO) and to create three security agencies, charging each with the conduct of the relevant aspect of the national security, and other related matters.”

The scope of what constitutes national security and other related matter is a matter of interpretation. However, Section 2 (3) of the National Security Agencies Act, specifying the duties of the DSS states as follows:
“The State Security Service shall be charged with responsibility for –
• The prevention and detection within Nigeria of any crime against the internal security of Nigeria;
• The protection and preservation of 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.”

Comments
What constitutes internal security and what crimes can be said to endanger internal security of any country including Nigeria?
The Black Law Dictionary 8th Edition defines internal security as “the field of law dealing with measures taken to protect a country from subversive activities”.

Eminent professor of law, Queens Counsel and Senior Advocate of Nigeria (SAN) is reported to have said:
“The DSS has the mandate to maintain internal security. There are many things that impact on national security, and I don’t think it is necessarily and narrowly focused on insurrection or civil disobedience and the like.

Anything that affects the institutions of the nation and which strikes at the heart of the institutions of the nation, must be a matter which affects national security. On that analysis, I will say that they (DSS) have the power, provided they follow due process, and the due process that I mean is that if an offence was not committed in your presence and you want to see whether you will find any evidence of the commission of the offence, the most appropriate thing is to obtain a search warrant and then execute it in a responsible and respectful manner.”

Prof Sagay also argued that corruption was threatening our internal security. According to him, the allegations of bribe-taking leveled against some judges, especially when they have to do with election cases, can cause of breach of security which falls within the mandate of the DSS. Speaking further, the eminent professor posits: “That is a very puerile interpretation of the mandate of the DSS. The DSS is established to maintain internal security through intelligence operations. I think it’s got to a stage where judicial corruption was beginning to threaten internal security in the sense that if you look at the case of elections, for example, taking bribes and declaring somebody, who lost an election or who did not win an election, as the winner, particularly, those who first bribed the Independent National Electoral Commission (INEC), then engaged in killing people and destroying properties in order to get there. If such people’s elections are upheld, that threatens internal security because the other party, knowing that the party that was declared winner did not win the election, or that there was no election, and that the party got there by a combination of bloody combat and bribery of the judiciary, will also tend to resort to force of arms and then you can have a disintegration of the society…”

Indeed, the categories of offences capable of threatening internal security are not closed. Terrorism, as manifested in the increasing wave of violations of criminal laws of a state to wit: massive destruction of lives and property, infractions of fundamental rights of the people, pollution of the environment and environmental degradation, cultural heritage and other violent acts has become a permanent feature in contemporary international system.

Corruption is another crime capable of threatening national security. According to Koffi Anan, a former Secretary-General of the United Nations (UN), “Corruption hurts the poor, disproportionately by diverting funds intended for development, undermining a government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investments, corruption is a key element in economic under performance and a major obstacle to poverty alleviation and development.”

Human rights violations may also violate internal security; so is political thuggery during elections. Clearly, national security is one of the greatest concerns of every nation of the world. In the words of a commentator ‘conceptually, national security appears ambiguous and bogus. It is a concept that emphasizes the overall and holistic security of a nation politically, economically, socially, environmentally and what have you.”

The scope of powers vested in the State Security Service (SSS) by the National Security Agencies Act is so wide as to “cover the prevention and detection of any crime against the internal security of Nigeria” including “such other responsibilities affecting internal security within Nigeria as the National Assembly or the President, as the case may be may deem necessary.”

The relevant question to ask is whether the present action of DSS was authorised by the President? The President has not come out to deny authorising the DSS to carry out the raids and so, authority may be deemed given by the President to DSS. Little wonder why DSS is claiming to have acted within its mandate. It is safe to assume this position as correct until the contrary is proved.

EFCC
Sections 6 and 7 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 provide as follows:
Functions of the Commission

The Commission shall be responsible for-
• The enforcement and the due administration of the provisions of this Act;
• The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc;
• The co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority;
• The adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime related offences or the properties the value of which corresponds to such proceeds;
• The adoption of measures to eradicate the commission of economic and financial crimes;
• The adoption of measures which include co-ordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
• The facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes;
• The examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved;
• The determination of the extent of financial loss and such other losses by government, private individuals or organisations;
• Collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning-
• The identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes;
• The movement of proceeds or properties derived from the commission of economic and financial and other related crimes;
• The exchange of personal or other experts;
• The establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;
• Maintaining data, statistics, records and reports on persons, organisations, proceeds, properties, documents or other items or assets involved in economic and financial crimes;
• Undertaking research and similar works with a view to determining the manifestation, extent, magnitude and effects of economic and financial crimes and advising government on appropriate intervention measures for combating same;
• Dealing with matters connected with extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes;
• The collection of all reports relating to suspicious financial transactions, analyse and disseminate to all relevant government agencies;
• Taking charge of, supervising, controlling, co-ordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes;
• The co-ordination of all existing, economic and financial crimes investigating units in Nigeria;
• Maintaining a liaison with the Office of the Attorney-General of the Federation, the Nigerian Customs Service, the Nigerian Immigration Service and Nigerians Prison Service Board, the Central Bank of Nigeria, the Nigerian Deposit Insurance Corporation (NDIC), the National Drug Law Enforcement Agency (NDLEA), all government security and law enforcement agencies and such other financial supervisory institutions involved in the eradication of economic and financial crimes;
• Carrying out and sustaining rigorous public enlightenment campaign against economic and financial crimes within and outside Nigeria; and
• Carrying out such other activities as are necessary or expedient for the full discharge of all or any of the functions conferred on it under this Act.

7(1) The Commission has power to –
• Cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under this Act or other law relating to economic and financial crimes;
• Cause investigations to be conducted into the properties of any person if it appears to the Commission that the person’s life style and extent of the properties are not justified by his source of income.
• In addition to the powers conferred on the Commission by this Act, it shall be the co-ordinating agency for the enforcement of the provisions of –
• The Money Laundering Act 2004; 2003 No. 7 1995 No. 13;
• The Advance Fee Fraud and Other Related Offences Act 1995;
• The failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, as amended;
• The Banks and Other Financial Institutions Act 1991, as amended;
• Miscellaneous Offences Act; and
• Any other law or regulation relating to economic and financial crimes; including the Criminal Code and Penal Code.”