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Lagos-based human rights lawyer, Mr. Femi Falana (SAN), who is representing the detained Sahara Reporters publisher, Omoyele Sowore has told a Federal High Court, Abuja, that the Department of State Services (DSS) lacks the power to arrest, investigate and prosecute his client or any person whatsoever under the Terrorism Prevention Act as amended.
Sowore who is presently in detention had, on August 9, approached the Federal High Court seeking to vacate the ex parte order that gave the SSS the legal backing to detain him for 45 days.
The DSS had said Sowore was arrested on account of the #RevolutionNow protest, which he had spearheaded.
However, Falana in his written submission on point of law before the court argued that the state agency is not one of the law enforcement agencies recognised and listed in Section 40 of the Terrorism Prevention Act as amended to carry out such arrest and detention.
The senior lawyer said although he was not unaware that the DSS is listed in Section 40 of the Terrorism Prevention Act but that the DSS is not a juristic person having not been created by any Act of the National Assembly.
According to him, the fact that the SSS and DSS are used interchangeably in Nigeria has not conferred a legal status on the DSS, adding that as far as the law is concerned, the SSS has no power to substitute itself for the DSS.
He urged the court to determined three issues; whether the SSS was right to approach the Court under the Terrorism Amendment Prevention Act, 2013; whether it was right to approach the court through an ex parte application for the detention of Sowore and whether or not the grant of the order for the detention of the SSS is an infringement upon the fundamental human rights of Sowore.
He argued furthermore that unlike the Nigeria Police Force, the Independent Corrupt Practices and Other Related Offences Commission (ICPC), and the Economic and Financial Crimes Commission (EFCC), which are clothed with powers to arrest, detain and prosecute suspects, the SSS, which was established pursuant to Section 2 of the National Security Agencies Act, has not been so empowered to arrest, investigate and prosecute any person.
“Assuming without conceding that the applicant /respondent has the power to operate as a law enforcement agency under the law, we submit that Section 27 (3) of the Terrorism Prevention Amendment Act, 2013 clearly provides that the ex parte order by a Judge under subsection 1 thereof shall authorise an officer to arrest a suspect. In other words, the ex parte order is like a warrant of arrest. But in this case, the applicant/respondent arrested the respondent/applicant without a warrant of arrest, detain him for six days before obtaining an order ex parte on August 8, 2019.
“In the reply to counter-affidavit the respondent/applicant has said that the officers of the applicant/respondent did not obtain any order of this Honourable Court before searching his abode and before subjecting him to investigation and seizing his telephones. We submit that the said search and investigation are illegal as they violate Section 24 of the Act”, Falana submitted.
In a affidavit deposed to by one Abubakar Marshal, he stated that Sowore has never been involved in any terrorist activity and there is no evidence whatsoever linking him to any terrorist activity.
He averred that the mass protest tagged “Revolution Now’’ took place in many cities across the country on the August 5, 2019 in his absence but there was no reported attempt to violently topple the government in Nigeria.
He also averred that the armed operatives of the applicant/aespondent who arrested him on August 2, 2019 searched his house, seized his telephones and detain him and subjected him to investigation without any court order.
“That on Tuesday, July 2, 2019 he met with Mazi Nnamdi Kanu, a British national in New York City, United States of America and at the end of the said meeting, they both issued a joint press statement. A copy of the said statement is hereto attached and marked EXHIBIT A. The applicant/ respondent did not know about the meeting until it was reported in Sahara Reporters, an online medium published by him.
“That contrary to the deposition in Paragraph (vii-xi) of the counter-affidavit, there was nowhere in EXHIBIT SSS1 where he expressed a desire to launch any violent attack or topple any government in Nigeria.
“That in further response to paragraphs 4 (vii-xii) he did not plan a coup with anyone but he mobilised the Nigerian people including students and youths, workers, market women and other oppressed people to influence the federal government, the 36 state governments and 774 local governments to address the crises of corruption, maladministration, mismanagement of the economy and insecurity.
“On August 5, 2019 the applicant / respondent claimed that it had the respondent/applicant in custody and boasted that it had foiled the revolution. In the evening of the same date, the federal government issued a statement wherein it thanked the Nigerian people for not joining the Revolution Now protests.
“The present administration had promised to create one million jobs per annum, build one million houses per annum, end epileptic supply of electricity, end corruption and impunity and restructure the country, end insecurity and manage the economy in the interest of the Nigerian people. Apart from failing to address these problems, the Muhammadu Buhari administration has compounded them in a manner that majority of Nigerians are frustrated.
“That contrary to the deposition in Paragraph (vii-xi) of the counter-affidavit, there was nowhere in EXHIBIT SSS1 where he expressed a desire to launch any violent attack or topple any government in Nigeria.
“That in further response to paragraphs 4 (vii-xii) he did not plan a coup with anyone but he mobilised the Nigerian people including students and youths, workers, market women and other oppressed people to influence the federal government, the 36 state governments and 774 local governments to address the crises of corruption, maladministration, mismanagement of the economy and insecurity.
[ThisDay]
