The DSS Conundrum

Two related events this week have served to convince me that the Department of State Services is a victim of its own mandate, and no matter what it does, critics will always find a reason to accuse it of lawlessness.

Before the DSS slammed the suspended governor of the Central Bank of Nigeria, Godwin Emefile, with a N6.9bn procurement fraud charges at a Federal Capital Territory High Court in Abuja, some of its critics had said it had no case against the man and should let him go. Some even said the DSS had no legal reason to still keep him in its custody without any court order.

But a few days later, the DSS came out to confirm it actually secured another arrest warrant from a magistrate court which allowed its operatives to re-arrest Emefiele after a court granted him bail. The DSS had revealed in a statement by its spokesman, Peter Afunanya, that Emefiele was being investigated for suspected acts of sabotage against the country as CBN governor.

Last Tuesday, it was reported that a Federal Capital Territory High Court had dismissed a fundamental human rights suit filed by a staff of the CBN and Emefiele’s co-defendant, Sa’adatu Yaro, against the DSS. In the suit, Yaro had sought for bail from DSS detention and an order of the court to release her cars seized by the secret police on July 12.

Yaro is the second defendant in the N6.9bn procurement fraud case by the Federal Government against the suspended CBN governor. The reason for the dismissal of Yaro’s suit later emerged on Wednesday.

Papers reported that Emefiele is seeking a plea bargain in the criminal suit filed against him, a 20-count charge over an alleged conspiracy to carry out procurement fraud, among others. He was charged alongside Yaro, who is an employee of the CBN, and a firm known as April 1616 Investment Ltd.

Emefiele’s arraignment, initially scheduled for August 17, was stalled due to the absence of Yaro, his co-accused, and the case was then adjourned to August 23. However, at the court session on Wednesday, neither Emefiele nor Yaro was present and the case was not listed on the court’s cause list. Papers quoting court sources reported that Emefiele is proposing a plea bargain agreement to get off the hook.

If he reaches an agreement with the federal government, he will resign as CBN governor and pay back some money. What all of these say is that Emefiele has accepted his guilt and he’s prepared to move on with his life and spare himself the agony of litigation which could end up with him going to jail.

This is a telling vindication of the DSS and a confirmation that it had been diligent and painstaking in its investigation and prosecution of the suspended CBN governor and his accomplices. This is worth highlighting for the reason that critics of the organization have portrayed it as arbitrary, unprofessional and an official organ to hack down the government’s adversaries.

One of the loudest critics of the DSS is Lagos human rights lawyer, Femi Falana, who has also followed events surrounding the prosecution of Emefiele and the suspended Chairman of the

Economic and Financial Crimes Commission, Abdulrasheed Bawa. Falana on Sunday demanded the immediate release of Bawa while insinuating that the DSS had no legal right to hold him because his remand order had allegedly expired.

He claimed that since Bawa had not been charged with any criminal offence since his arrest and detention over 67 days ago, the DSS should release him from its custody. He further claimed that he was aware that Bawa was being detained on the basis of a remand order issued by a Magistrate Court in the Federal Capital Territory.

“It ought to be pointed out that the remand order has become spent, invalid and illegal as no magistrate has the power under Section 493 of the Administration of Criminal Justice Act, 2015 or Section 35 of the Constitution of Nigeria to authorize the detention of a criminal suspect for 67 days without trial.,” he had stated.

He said since Bawa had spent more than 56 days in detention, which is the maximum prescribed under the Administration of Criminal Justice Act and the Constitution of Nigeria, the DSS should be directed to release him.

As a human rights lawyer, Falana’s advocacy cannot be faulted. He has a duty to ensure that no Nigerian is denied his/her fundamental rights. But does that make DSS wrong or holding Bawa illegal? I don’t think so. Did Falana bother to find out from the court or the DSS if the agency had secured another remand order? Or why it is still holding Bawa? Again, this is not the job of Falana or any human rights lawyer; it’s the DSS that must explain why it’s holding the accused, and whether it’s doing so legally.

By the very nature of its mandate, the DSS is vulnerable to unfair accusations of lacking respect for the law and its operatives being unprofessional in their conduct. One of its major functions is the “Prevention, Detection and Investigation of threats of Espionage, Subversion, Sabotage, Terrorism, Separatist agitations, Inter-group conflicts, Economic crimes of National security dimension and threats to law and order” besides other crimes.

While carrying out this function and others, it is not unreasonable to expect that some of its operatives could become overzealous and step beyond legal boundaries. It happens even in more democratically advanced countries. But once such infractions are brought to official attention, they must be quickly and judiciously redressed. That is the hallmark of a decent and professional security organization.

It is good for critics of the agency to demand explanation for actions that seem to go contrary to the law. But the agency must not be condemned on mere assumptions that it is violating the law. The Emefiele case is a good example of why the DSS, in the now common saying, should be allowed to breathe. It’s ample evidence that the DSS knows its onions and just needs our trust and sense of patriotism.

Investigation details on security issues are not topics for open discourse, and it’s likely a reason why the secret police in democratic societies usually face backlash from the civil society. This is the conundrum in which the DSS too has found itself!