LAGOS — Lawyers, yesterday, faulted the claim by the immediate past National Security Adviser, Col Sambo Dasuki (retd) that the operatives of the Department of State Services, DSS, carried out illegal raid of his residences in Abuja and Sokoto where some alleged incriminating items were recovered, saying the search was lawful as the operatives were armed with a search warrant.
DSS, last Thursday, stormed Dasuki’s residences with a search warrant which the former NSA described as a violation of his fundamental rights.
The lawyers, however, argued that having obtained a search warrant from a court of law, it is criminal to frustrate the execution of the warrant.
Search authorized by law — Falana
In his reaction, Lagos lawyer, Mr. Femi Falana, SAN, said the officials of the Department of Security Services, DSS, did nothing wrong on the search conducted on the residence of the former National Security Adviser, NSA, Col. Sambo Dasuki (rtd) last Thursday.
In a statement in Lagos, Falana said rather than blaming the DSS officials for carrying out their official duty, Col. Dasuki breached the law when he refused to allow the SSS officials “free and unhindered access” to his residence for hours.
According to him, contrary to “the misleading information circulated in the media by the former NSA,” his house was not illegally raided but lawfully searched pursuant to a warrant issued by a magistrate.
Falana said: “The fundamental rights to personal liberty and privacy of the home of every Nigerian citizen are constitutionally guaranteed. As fundamental rights are not absolute they may be breached in accordance with a procedure permitted by law.
“Hence, by virtue of section 146 of the Administration of Criminal Justice Act, 2015, the residence of any citizen can be searched with a warrant duly signed by a judge, magistrate or Justice of the Peace. Section 149 thereof imposes a duty on any person residing in any building which is liable to be searched to allow ‘free and unhindered access to it and afford all reasonable facilities for its search’.”
The lawyer noted that a team of DSS officials, armed with a search warrant, had attempted to execute the warrant on the private residence of Dasuki in Abuja in the Federal Capital Territory, but the former NSA refused to allow the officials access to his house for hours until the armed troops guiding the house were withdrawn by the Army authorities.
He also submitted that to prove that the search was not a witch-hunt, the DSS listed the items recovered from the premises to include seven high calibre rifles, (high assault weapons), several magazines and military related gears, 12 new vehicles, out of which five were bullet proofs. Since Dasuki is presumed innocent until the contrary is proved it is not fair to comment on the “incriminating items” found and recovered from his house.
He maintained that the law requires the owner or occupier of any house or apartment to allow a search once a search warrant signed by the appropriate authority is produced by law enforcement personnel.
Falana remarked that “since the country operates a neo-colonial legal system which confers special privileges on people of influence, Dasuki was treated with dignity in the circumstance. In other words, the DSS personnel would have executed the warrant, rather forcefully, if the search involves the home of an ‘ordinary’ citizen.
He said: “Indeed, the special status extended to members of the ruling class has also been demonstrated in the decision of the DSS to place the retired Colonel under ‘house arrest’ in a country where the flotsam and the jetsam are regularly railroaded to jail even when they are not associated with any ‘incriminating evidence’.”
Falana, however, advised the DSS to return the passport of Col. Dasuki to him forthwith since it was not authorized by a court of law.
“The DSS ought to be reminded of the case of the Director-General, State Security Service v Olisa Agbakoba (1995) 3 N.W.L.R. (Pt 595) 314, wherein the Supreme Court held that the passport of a Nigerian citizen could not be seized without due process,” he said.
He further reminded the DSS of the seizure of the passport of Alhaji Sanusi Lamido Sanusi, now the Emir of Kano, by the DSS under the Goodluck Jonathan Administration which was declared illegal and unconstitutional by a Federal High Court pointing out that in addition to the order for the immediate release of the passport, the court awarded N50 million reparation to the then embattled Governor of the Central Bank of Nigeria.
DSS acted within confines of the law —Agi
In his reaction, Chief Joe Agi, SAN, said: “Everybody in this country is subject to the rule of law and the law is above all of us, except perhaps on some issues involving the president, vice president, governors and their deputies, who are covered by immunity within the period they are in office.
“On the case of the former NSA, I think the DSS has done well and acted within the confines of the law. I believe the action they took was legal. The NSA cannot complain of breach of his right when there was a valid warrant that was issued by a competent court for his house to be searched on reasonable ground of suspicion.
“More so, they were said to have found incriminating items during the search, a pointer to the fact that the intelligence report that led to the issuance of the warrant was not wrong after all.
“My candid advice to the former NSA is that he should not bother going to court over the matter. Rather, he should concentrate on justifying how he acquired the items that were taken from his house. If he has justifications for the property then he will come out clean.”
Another SAN that pleaded anonymity said: “What the DSS did was lawful. No law stops them from taking a warrant or searching anyone without immunity. The security agency acted within the bounds of the law. The former NSA is not above the law.”
He is entitled to approach the court —Fashanu
On his part, Mr. Babatunde Fashanu, SAN, said: “Any warrant of arrest issued by a court of law, be it at the high court or magistrate court is deemed to be dully issued and bounded. So, no matter what the situation is, the warrant is presumed to be an order of a court which must be executed. In most cases, the police secure such warrant without due diligence, nonetheless, if it is from the court it has to be executed.
“However, at the end of the day, you can still approach the court to challenge such warrant in whatever form. Now it is the duty of the court to examine the situation and lift the warrant and at the same time examine whether it was properly procured
“So, to me the NSA can challenge the warrant through his lawyer if he feels it ought not be given at the first instance.”
It’s criminal to frustrate court’s warrant —Ogunye
According to Jiti Ogunye, a Lagos lawyer, “it is wrong for the NSA not to allow the DSS to execute the warrant issued by the court of law. No matter how and whoever you are, the law is taller than everybody. Nobody is above the law. So, frustrating the execution of the warrant is also a criminal offence.
“Examining the criminal code, the DSS ought to prosecute him for that. Not doing that now is another issue entirely. The magistrate court under the law has the power and authority to grant the warrant and whenever it is issued, it is a duly granted court order.”