What are the permissible boundaries for intelligence and policing actors in a democracy? And who defines the limit of freedom of expression in a democracy?
At around 1:25 a.m. on 3 August 2019, operatives of the State Security Service (SSS) arrested Mr Omoyele Sowore, a long-time human rights activist. Sowore had contested during the 2019 presidential election and came a distant tenth, gaining 0.12 per cent of all votes cast. His arrest was, purportedly, for organizing the #RevolutionNow national protests against perceived poor governance in Nigeria. Scheduled for 5 August 2019, the protest was disrupted by the police in Lagos and other parts of Nigeria, who tagged it ‘expressly outlawed and treasonable’.
The unsavoury chain of events that started in the early morning of 3 August 2019 came to a defining climax on 6 December 2019 with the invasion of the Federal High Court in Abuja, when operatives of the SSS forced Justice Ijeoma Ojukwu to abruptly stop the ongoing court session. The move was widely condemned within and outside Nigeria. The Nigerian Bar Association called the invasion ‘brutish and irresponsible’ and demanded the immediate suspension of the Director-General of the SSS. The Nigerian Union of Journalists described the event as the ‘violation of the sanctity of the court’ and The Nigerian National Assembly (both the House of Representatives and the Senate) called for an investigation into the invasion. The robustness and intensity of the condemnation that followed the illegality of the SSS has since forced the Attorney General of the Federation to take over the case.
The SSS in Recent Time
While the events of 6 December 2019 firmly placed the SSS in public view as an agency that operates outside the boundaries of statutory, constitutional, and institutional constraints, the notoriety of the agency predates 2019 and the Buhari government. However, under the current government, the impunity of the SSS has gotten worse. The SSS has refused to obey four successive orders of various courts, including an order by the ECOWAS court in October 2016, that granted bail and leave to former National Security Adviser, Sambo Dasuki, to travel out of Nigeria for medical care. The same pattern occurred in the case of Sheik El-Zak Zaky, the head of Nigeria’s Islamic Movement, who has been in SSS custody since 2015. The Punch has also accused the SSS of being responsible for the disappearance of many Nigerians and keeping them permanently in custody. In 2016, the newspaper reported, the agency arrested a former Niger Delta agitator, Felix Adika, and has since kept him in custody, without trial.
Despite its bad reputation, the SSS is a critical component of the Nigerian security architecture and the agency’s raison d’être is beyond questioning. Particularly in an age of well-organized, sufficiently resourced and unbelievably armed jihadist groups, ethnic militias and other disruptive non-state actors. However, the recent operations of the security service raise fundamental questions about democratization, democratic institutions, and state security in Nigeria. what are the permissible boundaries for intelligence and policing actors in a democracy? Who defines the limit of freedom of expression in a democracy?
Democratization, Democratic Institutions, and State Security in Nigeria
While democracy has become the essential mother’s milk in governance globally, democracy remains a very contested concept with more tang and varieties than you have in most yoghurt brands. One could almost ask another person: would you prefer the Marxist flavour of democracy? Liberal democracy? Electoral democracy? Consociational democracy or the unique African—Nigerian—brand of ‘the electorates don’t really matter’ flavour of democracy?
Essentially, states introduce structural and institutional modifications to localize the concept of democracy; and yet democratic states have some descriptive, universal attributes. Going by the Democracy Index of the Economist Intelligence Unit, democratic states are states that have as part of their governance architecture electoral processes and pluralism, civil liberties, functioning government, political participation, and political culture. The democratization process is equally complicated. In fact, there seems to be no consensus on what governmental events mark the beginning and the endpoints of democratization processes. Some would situate the process of democratization between the end of an autocratic regime and the conclusion of the first democratic elections, while others are of the opinion that the process of democratization continues even after elections, putting in perspective the fact that elections do not guarantee a functioning democratic government. The second perspective holds true for Nigeria. 20 years after the end of the military regime and after six general democratic elections, there are still fundamental doubts about the nature and characterization of democratic governance in Nigeria.
Democratization and consolidation are practically impossible without the pillars upon which democratic governance is erected—democratic institutions. These institutions include: a constitution and its critical provisions; rule of law; the civil service and the judiciary; the parliament; separation of powers; civil society, political parties; and policing actors, among others. The success of democratic governance depends on how democratic such governance can be. Among the criteria for assessing success is the level of citizen participation in defining and constructing governing institutions.
That said, a state like Nigeria, which has evolved from long years of military autocracy to participatory democracy, needs to holistically reform and remake some of its governmental institutions to serve democratic ends. Anything short of this would be ‘isomorphic mimicry’, a democratic state in name only. Two of the outstanding institutions in urgent need of reforms are the criminal justice and security institutions. These institutions determine broad policy outcomes and where they cannot directly impact policy outcomes, they influence national security priorities.
Nigeria’s criminal justice and security institutions were originally conceptualized to serve colonial interests, and, after independence, these institutions developed in that same organizational orientation and mould only replacing colonial flags, totems and personalities with local substitutes. These same institutions were co-opted to serve—often times very reprehensive military government dictatorial objectives—for more than three decades. How then can these institutions function well in an era that prioritizes personal liberty, freedom and the principles of separation of power?
The Foundations of the SSS
Nigeria’s primal policing agency is the Nigeria Police Force (NPF) and it is responsible for establishing a number of security agencies in Nigeria. For instance, the SSS began in 1948 as the now-defunct ‘E’ Department of the Nigeria Police Force. The ‘E’ Department was the department referred to as the ‘Special Branch’ and was tasked with the responsibility of procuring and disseminating security intelligence to relevant Nigerian authorities. In 1976, the Special Branch morphed into the Nigerian Security Organization (NSO). But in 1986, the Babangida administration re-organized the NSO. This led to the creation of the SSS alongside its other two sister agencies: the Defence Intelligence Service (DIS) and the National Intelligence Agency (NIA).
The ideological, structural and functional foundations of the Nigeria Police Force were laid by the British colonial administration in 1861. Scholars and policy analysts have identified the colonial economy and its preferred political and cultural order—and not particularly crime control—as the ideological foundation of formal policing in Nigeria. This is obvious in how all security agencies in Nigeria have defined state security, particularly in the last 20 years of democratic governance in Nigeria.
Defining State Security in Nigeria
For a long time in Nigeria, security operatives have followed a narrow definition of state security, a definition developed from a state-centric perspective. Often times, state security agencies in Nigeria promote ‘regime or particular government survival’ at par and sometimes above that of the Nigerian state and this is evident in the response of security agencies to seeming act of dissent and protest. An instance of this was in 2004, when the SSS arrested journalists for embracing President Olusegun Obasanjo.
In a democracy, however, the most important stakeholders are the people. As such, the definition of state security in a democracy must include components such as: citizen rights and sustainable human development; people-centred development that expands the choices for all citizens while at the same time protecting the natural systems upon which all life depends. Norway ranked first in the 2018 global democracy index and the Norwegian Security Act of 2019 defines ‘national security interests’ to include services such as financial and payment services, electricity supply, health services, food supply, transport services, district heating systems, media platforms and electronic communications among others.
Historically, however, governance in Nigeria has meant policymakers prioritizing coercive government agencies in the belief that internal policing actors are all that is required to secure the Nigerian state. They’ve expressed a worldview that focuses exclusively on self-defence and public order; an outlook that immediately relegates the socio-economic components of security threat to state security. So that all forms of dissent and views are immediately criminalized.
Unfortunately, the reality is that Nigeria needs to overhaul its approach to governance. We need a holistic remake of laws and organizational credos (e.g. default and standardized responses to protests and public criticism of the government), and a reorientation of the overall doctrine of Nigeria’s criminal justice and security institutions (and by extension the policymakers who superintend over them). Unless these things happen, the inappropriate conceptualization of national security in militarizing and criminalizing terms will continue. The view that prejudices all forms of dissent or public disavowal as hostile is incompatible with constitutional guarantees and the very essence of democracy.
A Culture of Hostility
Historically, one of the thorniest areas of engagement between security operatives and citizens in Nigeria has been state-imposed limitations on freedom of expression. The fact that there have been bills in every legislative dispensation to regulate components of freedom of expression highlight this tension—the latest expression of such tension being around the 2019 Hate Speech Prohibition Bill. But the culture of hostility between the Nigerian State and its critics also has colonial roots. A notable precedent being the Seditious Offence Ordinance of November 6, 1909, which was intended to restrict the ability of the press to publish items that were deemed unfavourable to the British Government at that time.
It is fair to say that post-colonial Nigeria has shown very little tolerance for criticism, fair or otherwise, and the laws from the past (criminalizing every expression of dissent) validate this position. There are several laws that were promulgated by past military governments to address unfavourable reviews of the actions of different institutions. One of the most outstanding of these laws was Decree No. 4 of 29 March 1984 during the military regime of Major General Buhari. The law was drafted to punish authors of false statements and reports that exposed the Buhari administration and or its officials to ridicule or contempt. So stern was the law that offending journalists and publishers were tried by a military tribunal and the tribunal’s ruling could not be appealed in any court. The complicated process of making laws in a democratic regime has, arguably, been the only reason Nigeria has not witnessed a repeat of these laws in one form or the other.
The Stifling Continues
But even at that, almost all governments since 1999, democratic as they were, have continued the tradition of stifling the right to dissent or hold critical opinions. President Obasanjo’s administration (1999-2007) set the tone for the negative relationship between the media and security operatives in the current republic. Between 1999 and 2003, police raided editorial offices and arrested employees of press organizations including the Daily Independent, The News, and The Observer. On 4 September 2004, armed SSS operatives raided Insider Weekly in Lagos, detaining two of the magazine’s employees on the grounds of national security, accusing the magazine of ‘attacking, disparaging and humiliating the person and office of the President and Commander-in-Chief as well as some notable people in government’.
During the tenure of President Goodluck Jonathan (2010-2015), there were more than 30 attacks on the freedom of the press and most of these attacks occurred during election periods. For instance, in 2013, police raided the offices of the Nation, seeking information about how the newspaper had obtained a letter from former President Olusegun Obasanjo to President Jonathan outlining Obasanjo’s desire for Jonathan to replace the leaders of the Petroleum Technology Development Fund and four other agencies with his own candidates.
Indeed, even the present administration, the government of President Buhari (2015-date), has maintained the tradition of repressive engagement between the government and voices of dissent. The debacle around the arrest of Mr Omoyele Sowore is the highpoint of this abusive relationship between freedom of expression and state security. Sowore was charged for, among other allegations, calling for a revolution and organizing an illegal protest. Interestingly, in a statement by his publicist in 2011, President Buhari had applauded the Egyptian revolution, stating that: ‘the Egyptian pro-democracy campaigners defied all odds to achieve their set goal of terminating the 30-year old grip on power by Mubarak. Their tenacity has again confirmed the truism that no force on earth can stop a people determined‘. President Olusegun Obasanjo, too, in 2012, had openly called for a revolution in Nigeria as a result of the high rate of youth unemployment at a Youth Employment Forum held in Dakar, Senegal.
Obviously, neither of the two were arrested or harassed for making statements like the one Sowore was arrested for, which raises questions about the meaning of Sowore’s arrest. Were Presidents Buhari and Obasanjo not arrested when they supported revolutions because of their political status, or did the governments of the day consider such calls crude political hyperbole which—considering their statements’ context and conditional nature—did not constitute a knowing and willful threat against the Nigerian State? Putting Sowore’s public statements calling for protests in the context of the incendiary statements politicians have made in the current republic with little or no repercussion, Sowore’s arrest appears excessive. One wonders, then, if the state’s protection was really the primary motive behind Sowore’s prosecution. Ultimately, Sowore’s arrest draws attention to two critical issues underlying Nigeria’s democratic governance: the state’s self-serving definition of state security, by which state security continually exists to serve political ends; and ongoing threats to freedom of expression⎈
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