Daniel Bwala, a popular Abuja based lawyer has given his opinion on the recent raid on Chief Sunday Adeyemo, aka Sunday Igboho’s home by DSS.
The Department of State Services (DSS) raided the residence of the Yoruba activist in Soka Ibadan, Oyo State, in the early hours (about 0134 hours) of 1st July 2021, accusing him and his associates of planning a violent insurrection against the state.
Reacting to the incident, Bwala, who’s also the Special Adviser to Deputy Senate President on Legal and Constitutional Matters at the National Assembly of Nigeria describes the DSS operatives’ action as lawful.
“Well from the perspective of law, a search warrant can be issued and can be executed at any time of the day even on weekends or public holidays. So you can execute a search warrant in the morning, in the afternoon, in the evening even at night, at any time including Sunday and public holidays. That’s section 148 of the Administration of Criminal Justice Act. And the person who issues the search warrant is the judge or magistrate.” He said.
He continued: “Now the issues that have cropped up or arising from the attempted arrest of Igboho were one that the governor should have been notified. There is nowhere in the law that it is stated that whenever the law enforcement is enforcing an arrest or a search warrant they need to notify or take permission from the governor.
Probably the rationale behind that is law enforcement can even investigate a governor. When a governor has to be contacted when you are politicizing it, then there’s the likelihood that the operation can be botched. That’s number one.
Then number two, this has to do with whether the law enforcement obtains a search or arrest warrant. It’s always difficult to know, until after the arrest is effected. So the person who is arrested, when you come to arrest him, the law says, he has every right to demand that you show him the arrest warrant or search warrant.
But if u look at section 148 sub 2, it says, when you go to execute the search warrant and the building on which you intend to execute the search is closed, you are to act within the prescription in sections 9, 12 and 13 of the same Administration of Criminal Justice Act.
“And these sections that I have cited state in clear terms that you can use reasonable force to enter the place. So the law enforcement can come to execute arrest or search warrant orders at any time.
And if there is resistance, the law says they can execute reasonable force in executing that. Now, this is the position of the law and I choose to stay around it without having to look at the sentiment or the politics around it.
Because once you bring that to the fore, then the question is whether they can even go there or not which is not going to be premised on law but on sentiment. Now one of the grounds that law enforcement agents or agencies can exercise the power to search or arrest you is when there is a test of reasonability, that is when there is a reasonable doubt that you have committed an offence, you about to commit an offence or you are in a position of a firearm.
These are conditions on which they can execute the search warrant for the purpose of discovering what is going to form part of their investigations or for the purpose of arresting you to stop you from committing the act.”
Femi Falana, a Senior Advocate of Nigeria and human rights activist, is one of the people who have publicly condemned the DSS operatives’ action labelling it a criminal act. He revealed that there’s no single phase in the constitution was it approved a midnight attack or even abduction by the government.
Speaking on Mr Falana’s claim, Barrister Daniel Bwala said:
“The claim by my ‘Egbon’ SAN Femi Falana, with the greatest respect it’s not tenable and not guided by the law. The administration of the Criminal Justice Act came into force in 2015. Even if you go to Criminal Procedure Law. For example, section 111 of the Criminal Procedure Law also supports section 148 in terms of executing search warrants any time of the day.
What I have learnt from my practice because a search warrant can be executed anytime, which means you can go to the judge’s house and have him sign a search warrant. Most time what EFFC does and I think it should be the same for DSS, you can go and get that order. And to get that order is not difficult. And when you go, all that the Magistrate or the judge needs from you is the face value.
Whether there is a reasonable ground from the fact that you are suggesting that what you want to go and do in the eyes of the law can be seen as something worthwhile because when you have effected the search or arrest, it’s going to form part of the investigation. And by the time you are through with your investigation, you must definitely charge.
So anytime you eventually come to the court and if there is no prima facie allegation established against the accused person, the law requires that the magistrate can decide to discharge the accused person. This is the premise. It can be executed against anybody in Nigeria, expect any person covered by immunity as prescribed by our law.”
“Let me tell you from experience. I rarely find a situation where DSS or EFCC effect an arrest or search without an order, it’s almost impossible. The reason is this, any product of operation that is founded on illegality will affect the charges in court.
If you arrest someone without an arrest warrant or you search somebody with a search warrant, it will be faulted in the face of the law. So the law enforcement oftentimes, may not announce that they have it, but if the for example the person is arrested, the person will be able to testify because the law requires you to show it to him.
“And there is a part of the law which says as at the time you are coming to execute the search warrant and the person in question is resisting with a lethal weapon, the law says you can exercise force that is proportionally reasonable. If the law enforcement come to exercise arrest and you try to resist by slapping them, they cannot use a gun on you because that is not in compliance with proportionality. But if you use a gun, they can use a gun.
In this case, there was a gun dwell. In a scenario where you have gun dwell it is very possible that destruction will occur. Assuming when they came, Igbogbo’s men opened the door politely and these people decided to destroy things then they have exercise force that is not reasonable, the test of reasonability will go against the law enforcement.”
On why the DSS usually carries out operations at night, the lawyer has this to say:
“The reason why DSS, in particular, execute operation at night is to minimize casualty. Igboho is a well-known personality loved by his People. You remember a time when EFCC went to Epe, Lagos to effect a search on the house of the former governor, they were chased out by the community.
These are the type of things that could have been avoided if they went at night. In the case of DSS from my little understanding of why they operate at night is because of their logo; Owl. Owl sees at night. You will rarely see DSS operate during the day and that is because they want to minimize casualty.
If they had gone to Igboho’s house during the day, there’s every likelihood that those who even went to perform the operation would have been killed. And secondly in a bid to resist the resistance of the people. Because they would be surrounded by a mammoth crowd and you are likely going to fight a pandemonium that if care is not taken will lead to the national crisis.”