‘Under our extant laws, a person may not be arrested or declared wanted without a warrant’
In recent times, there have been public agitations and outcry against perceived disrespect of procedures and highhandedness by security agencies in Nigeria. Many are of the view that such a disposition infringes on the fundamental rights of citizens. In this interview with Assistant Judicial Editor, JOSEPH ONYEKWERE, ex-national secretary of Labour Party (LP) and Abuja-based lawyer, Kayode Ajulo says the notoriety of executive agencies in transgressing the very laws that create and empower them has become commonplace and regrettably the norm.
On the allegations of impunity against security agencies, Ajulo said: “The issues that arise from these exhibitions of impunity and gross ignorance of the law are a real threat to our budding democracy, and a mockery of laid down procedures and guidelines painstakingly enacted by our lawmakers.”
Could it be that these agencies and their agents are simply driven by a passion to get the job done, no matter the means? In response, Ajulo said: “No! That is hardly the case. Let’s examine that position against the recent misplaced zeal of the Nigeria Police Force and the Department of State Security in handling the non-issue involving Mr. Kassim Afegbua, spokesperson for the former military president, Ibrahim Babangida. Firstly, we must reiterate that the law seeks to establish laid down procedures for securing the attendance of accused persons in court. This is important because where no proper procedures are laid down for securing the attendance of accused persons in court, there is bound to be violation of the rights of such persons. Article 9 of the United Nations Declaration of Human Rights to which Nigeria is a signatory provides that no one shall be subjected to arbitrary arrest, detention or exile. This provision is domesticated in section 35 of the 1999 constitution of Nigeria, and guarantees that the dignity of all Nigerians must enjoy safeguards against arbitrariness whether official or non-official.”
On the implications of declaring a person wanted and the laid down procedure for such a declaration, the lawyer, who is the managing partner of Castle of Law, Abuja responded thus: “Usually, when any security outfit makes a declaration that a person is wanted, it is usually under the impression that a crime has indeed been committed and such offender has suddenly gone under the radar. Also such declarations usually pre-empt an arrest. Under our extant laws, a person may not be arrested or declared wanted without a warrant duly obtained from a competent court and endorsed by same authorising it. The exceptions to the above do not bear on the case in point, that is the Mr. Afegbua’s issue.
“The law demands that before making a Wanted Declaration on a public platform or any other for that matter, the police ought to obtain a warrant of arrest duly signed and endorsed by a competent court. The said warrant must also be presented at the point of arrest and in it, the particulars of the arrest ought to be spelt out. Where a person sought to be arrested makes a run for it or evades arrest, then a declaration informing the public of the accused person’s status may be made. By implication, where such an accused declared wanted is seen, the public is to assume that such a person is not just a wanted criminal, but also a potentially dangerous one. The serious implication of such presumptions makes any deviation from the above process an abrogation of lawful processes, a clear indicator that the said agency seeks to appropriate to itself powers vested singularly in the courts and also a gross disrespect of the accused person’s dignity of self, especially where he or she is neither on the run, in hiding nor knowing of the summon, invitation or intended arrest.”
According to him, to secure Mr. Afegbua’s appearance at the Police station, the declaration made against him by the police was absolutely unnecessary. His words: “What crime is he said to have committed? Why impute that he is on the run or evading the police when the police had extended no formal invitation to him? Even a constable newly in the employ of the police force can fault the action of the police in declaring a person wanted just to grab his attention and make him honour a previously non-existent invitation.”
There are popular conclusions that the DSS stepped in to finish up a carefully orchestrated strategy to intimidate Afegbua. Commenting on this belief, Ajulo said: “The DSS has long ceased to be the Department of State Security. It is now the Department of Aso Rock Security (DARS). By jumping into the foray, ‘DSS’ assumed the role of an arbiter in a civil issue, with no least connection to the scope of their powers or functions under the instrument creating them. At first glance, one could see into the real substance of that move but the question that begs the said invitation is: by what authority, real or imagined where the DSS operating under?
“The issue of the circumference of the DSS operative power has been severally delineated by statutory and case law authorities. Section 3 of the National Security Agencies Act, binding on the DSS and sister agencies materially restricts the function of the DSS to dealing with 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.
“As reaffirmed by the courts in Director of State Security Service & Anor. v Olisa Agbakoba (1999) 3 NWLR (Pt 595) 314, the above statutory functions remain the scope of the DSS’s operational power as anything done outside those provisional functions are ultra vires and null ab initio.
“While security agencies continue to gamble with statutory powers and functions, the real crimes and criminals operate freely. The summon of Mr. Afegbua by the DSS is a total waste of time that could have been better put to the strengthening of the nation’s internal security. It is befuddling to common sense what threat to internal security is occasioned by one’s exercise of his right to freedom of speech. It is equally sobering to note that those entrusted with securing the nation’s internal security cannot tell a real threat from a non-existent one.
“The sheer zeal exercised by the DSS in its invitation of Mr. Afegbua reveals an ambitious undertone that may not border well for Nigeria and Nigerians. There have been previous outcries denouncing the personalisation of security agencies, particularly the DSS by the executive who deploy them into intimidating and muscling perceived opposition into submission. While it is not my brief to outline the demerits of such a situation, I nonetheless denounce it strongly as it limits and weakens the DSS, while exposing them to ridicule. The absurdities at play in this political theatre of interests, ambitions and ultra vires appropriation of functions and powers must end. No institution can be bigger than the people it was created to serve, nor assume a role not within the character of its enabling laws.”
Responding to a question on his clients disposition to the issue, he said: “Mr. Afegbua remains a patriotic Nigerian caught in the whirlwind of power politics, and his rights under the constitution and other similar legislation cannot and should not be trivialised by ignorant or overzealous agencies and agents quick to scurry a favour or two from their political handlers. We have laws and laid down procedures for a reason; to create order and set boundaries.
“He has maintained his commitment to doing the right thing as he has always done, until the unfortunate circumstances surrounding him are dispelled by truth and fairness. Mr. President must be duly advised as to how the continuous haranguing of Mr. Afegbua by agencies under his direct control reflects badly and poorly on his democratic score sheet. At a time when this government is hard-pressed to prove it’s respect for the law and due process, the negative publicity stirred up by the antics of the Force and DSS cannot be reckoned as good for its image.
“In fact, I would recommend that all security agencies in the country begin an immediate re-orientation of its agents as a matter of national emergency. We cannot continue to harbour obtuse elements within such sensitive agencies at a time when real security issues confront the country and other nations of the world make progress in their respect of the inalienable rights of their citizens.”
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