The DSS and the Burden of Impunity – By Douglas Ogbankwa

“When you protect the Rule of Law While in Office, the Rule of Law will protect you when you are out of Office.”

– Paul Usoro SAN, – President, Nigerian Bar Association.

The Department of State Services is the Body saddled with Internal Security and local espionage for Government in Nigeria.

Its activities as expected are shrouded in secrecy, under President Buhari however the body has assumed an ignominious appellation, to with: “Above the Law”.

When you hear that President Buhari’s Government do not obey Court Orders, the DSS is the major culprit.

Citizens are inundated with flurry of cases where the DSS detain Freeborns of this Country with out recourse to the Courts or the Rule of Law. The Bayelsa Born Journalist, James Abiri, who was detained for 2 years without trial, is a case in point. He was eventually charged to court after two years, released on bail, after which he was re-abducted by the DSS and then released after spending many days in detention.

Retired Colonel Sambo Dasuki, the National Security Adviser, under former President Good luck Ebele Jonathan has had several Court Orders granting him bail since his detention shortly after President Buhari came into Office, the DSS has flagrantly disobeyed all.

The Islamic Movement of Nigeria (IMN) Leader, Ibrahim El Zakzaky and his wife have been in detention for years in DSS Custody, despite several Court Orders for their release.

The recent strain by the DSS in their Bale of Impunity is their failure and refusal to release Omoloye Sowore, after a Court Order for them to do so, even in the face of Contempt Proceedings currently on going against their Director General, before Justice Taiwo Taiwo of the Federal High Court, Abuja Even then, the courageous Judge who granted Sowore Bail is now being intimidated with a threat of a Petition to the National Judicial Council (NJC ), an act of desperation laced with Impunity, to kill the Rule of Law and threaten the Independence of the Judiciary.

The Courts however have the Key to stem the Impunity of this Administration. The Courts, mostly at the Federal Level have not asserted their independence They have been feeble and weak in the face of disobedience of their Orders by the DSS and other State Actors, which has given the goons in the Buhari Government a free ride trampling on the rights of Citizens and even on the Court in blantant Impunity, some times defending same before the Court while the Court listens to their reasons for disobeying the Law or being in Contempt of Court. The Courts are however very hard on Citizens that disobey Court Orders. What a travesty of Justice?

In the height of Military Rule in Nigeria,during the Regime of General Sani Abacha, the Judiciary stood with the truth and Justice when for example the Supreme Court Per Justice Sampson Odewingie Uwaifo, JSC, (as he then was) rejected the ouster clause put in a Decree clamping down on press freedom in the Country in the case of The Attorney General of the Federation v Guardian Newspapers Limited
(1999) 9 NWLR (pt. 618) 187.

In the Golden Days of Nigerian Judiciary,the Supreme Court Per Justice John Otutu Obaseki posited in the Celebrated case of Governor of Lagos State v. Ojukwu (1986) 2 NWLR (PT. 18)621, thus:

“The Nigerian Constitution is founded on the rule of law the primary meaning of which is that every thing must be done according to law. It means also that government should be conducted within the framework of recognised rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight metwane of law as opposed to the uncertain and crooked cord of discretion’ (see 4 Inst 41). More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by Judges who are wholly independent of the executive. . .

The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria ”

Further accentuating the issue, Justice Kayode Eso, then also of the Supreme Court, with judicial finality indicated thus:

“I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the court further by seeking a remedy in a higher court while still in contempt of the lower court. It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive under the Constitution of the Federal Republic of Nigeria 1979, the Executive, the Legislature (while it lasts) and Judiciary are equal partners in the running of a successful government… The organs wield powers and one must never exist in sabotage of the other or else there is chaos.”

2. While the contempt of the Court of Appeal by the applicants is still subsisting, it would be inequitable to give consideration to the application of the applicants.

3. It is trite law that a party has no right to take matters into his own hands once the court is seized of it.”

To embolden the DSS and other State apparati that disobey Court Orders, President Mohammedu Buhari at the 58th Annual General Conference of the Nigerian Bar Association, which held at the International Conference Centre, Abuja, in August 2018, posited to the consternation of Lawyers Present, inter alia that:

“The Rule of Law is subject to National Security”.
The NBA however ,in a Communique after the Conference rejected the above assertion of the President of Nigeria and told him point blank that National Security is subject to the Rule of Law.

Government derives its Legitimacy from the Constitution and Section 1(1) of the Constitution of the Federal Republic of Nigerian, 1999 (As Amended ), states that: “This Constitution is Supreme and its provisions are binding on all persons, Authorities and Institution through out the Federal Republic of Nigeria”. I dare say including the DSS

The incessant disobedience of Court Orders by the DSS and other Agents of Government is an invitation to anarchy.How will the Government feel just as they disobey Court Orders Citizens disobey constituted Authorities ?

As Justice Chukwudifu Oputa, JSC (as he then was ),put it many years ago on this score: “Fishes conform to water in obedience to aquatic laws, Society must conform to laws in obedience to natural laws ,a Society that does not conform to Laws ,is akin to fishes out of water, just like the fishes, it will surely die .”

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