By Jibrin Samuel Okutepa, SAN
The rate at which the Department of State Security Service DSS is all over in the news performing what should be the duties of the Nigeria Police under the police Act in criminal cases worries me and gives me concern as law. And I think it should worry any right thinking Nigerian who has the interest of Nigeria at heart.
DSS seems to be on the lose lately. It is assuming roles not intended for it. From my limited understanding of the law setting up DSS, it seems that the primary responsibility of DSS includes the collection of intelligence for good governance and national safety. It ensures the protection of the State and its officials, citizens, critical resources and infrastructure from domestic threat.
I never understood the DSS as having the same power as the police. It cannot because the Nigerian Constitution does not allow it. I will return to this anon.
Today DSS is all over performing the role of the police and even the duties of EFCC and ICPC. Yet the agency saw nothing wrong with this. Is DSS indeed an independent institution or it is allowing itself to be used to settle political scores.
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Is DSS a constitutionally created institution. Nigerian Constitution is Supreme and all other laws must derive their validity and legality from the Constitution. It appears with respect that DSS as an agency is derailing in its statutory duties and responsibilities. It unconstitutional for it to engage in performing the duties and responsibilities of the Nigeria police. I feel so. I do not see where the DSS derive it’s legitimacy to perform police duties from. The Nigerian Constitution is clear on this point.
For clearer understanding of the points it is necessary to refer to Nigerian Constitution. Section 214 of the 1999 constitution is in point here. It reads thus: 214. (1) There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.
(2) Subject to the provisions of this Constitution –
(a) the Nigeria Police Force shall be organised and administered in accordance with such provisions as may be prescribed by an act of the National Assembly;
(b) the members of the Nigeria Police shall have such powers and duties as maybe conferred upon them by law;
(c) the National Assembly may make provisions for branches of the Nigeria Police Force forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways and air fields.
As can be seen from the Constitution itself, the Constitution prohibits establishment of other security organizations performing the duties of the Nigeria Police. The constitutionality of DSS is in issue here. Can DSS perform the duties and responsibilities of the Nigeria police. I do not think so.
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The Constitution mandates the National Assembly to make laws that enables the members of the Nigeria Police to have such powers and duties as maybe conferred upon them by law. To this end the National Assembly enacted the Nigeria Police Act 2020.
Under that law it the duties of the police to investigate and dictect crimes amongst other duties and not DSS. The DSS as currently is all over performing duties that have been assigned to the Police by the police Act which derived it’s constitutional legitimacy from the Constitution.
Where did the DSS derive it’s powers to perform the duties and responsibilities of the police from.
In the words of the Constitution “There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof”
I ask where did the DSS derive it’s legitimacy to perform police duties and responsibilities from in the face of section 214(1) of the Constitution. I want to know. I think we need to interrogate the performance of the police duties and responsibilities by DSS. It may be unlawful and unconstitutional. I think so.
