The EFCC vs DSS Saga – A Mockery of the Rule of Law and a Slippery Slope into Historical Tyranny of Security Agencies -By Barrister Kehinde Osunyikanmi

On Tuesday, the 21^st of November, 2017, the year felt like 1980s once again, when information was gathered reliably that the officers of the DSS obstructed the arrest, under warrant of the former Director General of the Department of State Services, Mr Ita Ekpeyong as well as Mr. Ayo Oke, the former Director General of National Intelligence Agency (NIA). Just when we had began celebrations that democracy and the rule of law must have permeated our security outfits such that the gory tales of draconian powers and impunity is gradually eliminating, we encountered another level of reckless abuse of power and artificial impunity. Various issues, both legal and political have been addressed on several fronts, while rejoinders to support or defend the Department of State services have also been advanced. It is however imperative to pay attention to relevant historical antecedents that gives us a lead to the point where the hostile relations began.

Records inform us that inter-agency relations between the EFCC and the DSS had been quite cordial. Recall that in 2015, the very issue that generated controversy was professionally handled by both agencies operating within the ambit of the Criminal Justice System. Colonel Sambo Dansuki was arrested sometimes in November 2015, after the interim report of the defunct Presidential Committee set-up to investigate the disbursement of about N624billion naira ammunition deal. The report directed the attention of the presidency to the unaccounted sum of N2billion naira which was a non-budgetary allocation that primarily indicted the office of the former National Security Adviser, Colonel Sambo Dasuki. The security agency set-up to defend the country against domestic and insurgent threats, (DSS) must have arguably exercised its prerogative right in arresting Colonel Dasuki at that time. To give the questionable arrest a color of validity, they immediately transferred him to the EFCC for prosecution.

Here lies the all important question? Did the DSS simply transfer the suspect on whom they conducted an illegal search to the EFCC or did they engage in some other activities other than all the money and items recovered in the process? Well, I’m convinced that the law will judge us accurate and the DSS under its prerogative powers, which was arguably exercised within the parameters of due process of law, should have handed over all materials, recoveries, items, and evidence gathered to the EFCC, upon the conduct of premises search and arrest of the suspect. Hence, this will enable the EFCC to afford itself of all necessary evidence to properly prosecute the offence. It is absolutely an aberration and antithetical to our adjectival laws that a department within the presidency having exercised a right it doesn’t have can still withhold the money recovered during its illegal search.

The mandate of the DSS is simple and precise – The protection and defense of the Country against domestic violence and terrorism and to provide leadership in the Criminal Justice sector. Issues pertaining to corruption and embezzlement of public funds by ex public or serving public officers are not within the contemplation of the relevant laws establishing the DSS. The EFCC has that as the paramount area of interest, pursuant to its enabling Act and must as a matter of law be availed of all information in connection to corruption issues and suspects, including those whose  arrest have been sponsored by supporting agencies like the DSS.

The issue of the NIA ex-boss who was let go sometimes in August is also worrisome. Mr. Ayo Oke was severally invited for questioning by the EFCC in connection to the money recovered from the Ikoyi building which investigation revealed belonged to his wife. He had on various occasions refused appearance or actually evaded same, citing various excuses until he was dismissed. It then came as a last straw which broke the camels back when officers of the DSS also came to the scene to obstruct his arrest by members of the EFCC. This, I make bold to state is an absolute affront to the rule of law and constitutionalism. I hereby pray that the provisions of section 38 of the EFCC Act 2004 be invoked by the agency against the said officers for obstructing the due process of the law, and ignoring with impunity the properly executed warrant of arrest by a court of law.

On a second flip, we recall that the rout between the agencies began sometimes in October 2016. The Senate was the initial battle-ground, and the confirmation of Mr. Ibrahim Magu as the substantive Chairman of the EFCC was the controversy. The Senate made an official statement of refusal to confirm the appointment of Magu as the Chairman of EFCC based on the letter written by the DSS that the nominee was guilty of actions related to “double-lifestyle, corruption and sabotage of the anticorruption crusade of the presidency”. As shocking as the revelations contained in the said letter was, what amazed members of the public most was the fact that the presidency wrote a letter to disparage the nomination submitted by the same presidency – A typical show of governmental disorganization and disorientation.

Issues raised by the DSS in the letter include the close association of the Mr Magu with Commodore Umar Mohammed, a retired Air Force officer who had been indicted by the EFCC for fraud and embezzlement of over N40billion; his close ties with Mr Nnamdi Okonkwo, the CEO/MD of Fidelity bank, who had been complacent in the indictment of Madam Diezani Madueke, (the embattled former Minister for Petroleum); as well as his antecedence of corruption and professional abuse of office by intercepting sensitive national security documents. He was penalized and suspended by the Police Service Commission in 2010, before the regime of Mr. Ibrahim Lamorde later reinstated him (Mr Magu) as the Director of Operations in the EFCC. The events had been cited as rendering   Mr Magu not to deserve the revered anti-corruption czar position.

The above had exposed the unchecked private feud between Mr Ita Ekpeyong and Mr Magu which the latter intended to profiteer from upon the retirement of Mr Ekpenyong. However, legal perspectives over these issues will be analyzed shortly. The above, constitutes silent questions that beg for immediate answers. When did the Law grant immunity to Director Generals of governmental Agencies. In fact, it is an aberration and an infraction of the law for officers of DSS to be acting for and on behalf an officer who is no longer is in active service of the Agency. It is strange to our laws and the obstruction of arrest berates the letters and spirit of the law, no argument can be proffered to avail the DSS former boss from facing jail term.

Indeed, some can refer to the sabotage of Mr Magu’s ambition by Mr Ekpenyong as revenge, but same can never negate the fact that the law had been violated by the former DSS boss. The moment he concluded his service with the DSS, his position is not different from that of an ordinary citizen, who can be invited to answer for interrogation or be arrested and prosecuted by the EFCC on allegation of crimes. The DSS only took us back to the era of NSA in the late 1980s, where the parent agency unleashed different dimension of terror on individuals and persons who dared to oppose any of its actions. May we remind the DSS that this is democracy and the Rule of Law reigns supreme? No body or Agency can prevent the application of the law upon a non-existent law, or a governmental policy, simply because of its affiliation with the Presidency.

The current D-G of DSS Mr Lawan Daura deserves to take an immediate action against the former D-G to save the face of the Agency and raise its head above shame and reproach. The President needs to act now and fast to check impunity of his current or former appointees, and the office of the National Security Adviser needs to hurry to save what is left of the Department before time runs out. The doors of tyranny and impunity must be shut now; otherwise, we will prove to the world that we learnt nothing from our past woes.

Barrister Kehinde Osunyikanmi is human right activist and a legal practitioner at Corona Legal Practitioners who writes from Lagos.