Friday, 14 October 2016

Article: Justify The Action Of The DSS If You Want To, But Not Under Its Establishing Law



By Solomon Okedara

In the last 72 hours or so, I have read with total dismay the very disappointing words of many legal practitioners including some senior members of the bar claiming that Section 3 (c) of the National Security Agencies Act (NSAA) covers the arrest of some judges as done by the DSS on Friday 7th and Saturday 8th, October, 2016. The relevant part of the establishing law reads ‘such other responsibilities affecting internal security within Nigeria as the National Assembly or President may deem fit This is the part of that law that many “learned” counsel and other self-appointed ‘draftsmen’ have stretched to a sheer ridiculous extent to cover the ultra vires action of the DSS.

Whenever interpretation of any law comes up, one basic thing to look for is the intendment of the draftsmen. In navigating his route to the mind of the draftsmen, there are some guides that aid such statutory navigation of a lawyer or judicial officer. Amongst these guides are rules or canons and maxims. For the purpose of this piece, the relevant guide for interpreting this kind of provision by the nature of its wording is a maxim called ‘EJUSDEM GENERIS RULE’ A careful look at the instant provision shows that the provision of Section 3 (c) of NSAA is extensive from the earlier provisions of Section 3 as contained in Section 3 (a) and (b). For clarity and emphasis, section 3 (a) and (b) provide that:

‘(3) The State Security Service shall be charged with responsibility for-
(a) theprevention and detection within Nigeria of any crime against the internal security of Nigeria;
(b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and….”
The c part of that section which is under scrutiny and analysis reads:
(c) suchother responsibilities affecting internal security within Nigeria as the National Assembly or President may deem fit.

It is no rocket science; neither does it require a supernatural mind to know that Section 3 (a) and (b) are the major provisions of the instant section. It is also clear that the introducing phrase for Section 3 (c) which is ‘such othermeans ‘similar” or “related”. Oxford Advanced Learner’s Dictionary 8th Edition shows that the word “such” is used in relation to “the type already mentioned” For an instance, if a statutory provision says “(b) persons like surgeons, dentists, nurse, physiotherapists…..’ and (c) “such other persons that may be considered” it will therefore be within context to hold that “such other persons” as used can cover “matron and anesthetist” but it will be totally out of place to  include “gardener, teacher or pilot” Therefore, the phrase “such other” can be replaced with “related” and is distinguishable from “ANY OTHERpersons” which can then include even a “Cobbler”. So, the opening phrase “such other” as used in Section 3(c) of the NSAA therefore means “related” or “similar”

The next question should be what amounts to threats to internal security in the context used? Generally speaking, ALL acts of threats to internal security including Terrorism, Kidnapping, Ethnic Clashes,Religious intolerance, Sabotage, Espionage, Subversion have one thing in common and that that is terror. In all cases, threats to internal security achieve direct causalities, displace people temporarily or permanently and sometimes take away lives literally. Can we now say bribe-taking is in this class or RELATED to Terrorism, Religious intolerance or Kidnapping? NO!

It is therefore apposite to hold that “such other responsibilities affecting internal security within Nigeria as the National Assembly or President may deem fit” cannot by any dint of judicial or otherwise stretch accommodate a case of bribe-taking or any other unlawful gratificationEXCEPT the bribe was taken to perpetrate an act of threat to internal security which is NOT the circumstance any of the arrests made by DSS was premised upon, at least as disclosed.

Finally and most significantly, EJUSDEM GENERIS rule portends that the later mentioned word or phrase takes its meaning from the earlier mentioned. For an instance, if a law that establishes a public examining body like JAMB makes use of phrases like “conducting written or oral tests, aptitude tests and such other exercises as may be determined by the Minister of Education” after it has mentioned “Conducting entrance examinations to Colleges, Monotechnics, Polytechnics, Universities,….” It will be totally out of place for anyone to justify conduct of a Semester examination of a Federal University by such examining body just because a later phrase reads “conducting written or oral tests, aptitude tests and such other exercises as may be determined by the Minister of Education”.

For those who still insist that the arrest by DSS was covered by Section 3 (c) of NSAA, the same reasoning and a more permissible one should then have seen us argue that Nigerian Security and Civil Defence Corps should be arresting and prosecuting people who misappropriated Federal Government’sfunds. That sounds strange right? Most people, including self-appointed draftsmen on the social media, would be shocked to discover that NIGERIA SECURITY AND CIVILDEFENCE CORPS ACT 2007 (as amended)provides that the Corps shall

“Have power to arrest with or without a warrant, detain, investigate and institute legal proceedings by or in the name of the Attorney General of the Federation in accordance with the provisions of the Constitution of the Federal Republic of Nigeria against any person who is reasonably suspected to have committed an offence under this Act or is involved in any:

iii. Industry espionage or fraud

(c)Syndicate activity aimed at defrauding the Federal, State or Local Government

Do we then now say because of the underlined provisions quoted above NSDC can also effect arrest and prosecute just like ICPC and EFCC? The answer is definitely in the negative! Power to arrest and prosecute by NSDC on fraud to the Federal, State or Local Government or on industry espionage or fraud is given to the Corps INRELATION to the earlier mentioned areas in its establishing law, which bothers on protection of public property, amenities and peace.Therefore to argue that the arrest of the said judges by DSS was covered by Section 3 (c) of NSAA or any other section of that law is not only erroneous, misleading but a misrepresentation of the law.

Do I support judicial corruption? God forbid! My clients at some points had been victims of broad daylight judicial corruption and I know how traumatizing it could be, both on the client and the counsel and the impact on the society. That said, my position in this piece is that you do not build a sustainable system on a shaky foundation. For those who do not see anything wrong in using an unlawful approach to achieve a positive goal, after all, they are “corrupt judges”, you need to be reminded that there were citizens like you and I who were wrongly arrested by our law enforcement agencies but lost their lives in detention without being arraigned while the lucky ones were only released months after unlawful arrest and incarceration.

As the arrested judges face their allegations and accept their convictions or acquittal as the case may be in days ahead, I reiterate my belief in a Nigeria where rule of law, justice and collective prosperity will reign.

(Okedara is a Lagos-based legal practitioner and can be reached on solomonokedar@gmail.com)

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