In any civilised legal system, secret services gather intelligence; prosecutors prosecute. The two jobs are related, but like gin and driving, best kept separate.
Across mature democracies, this distinction is not controversial. MI5 does not file charges in London. The CIA does not arraign defendants in Washington. Mossad does not draft charge sheets in Tel Aviv. Intelligence agencies investigate, surveil, assess threats, and then hand matters over to bodies that operate in the open: the police and prosecutorial authorities. That handover is not a courtesy; it is a constitutional necessity.
Nigeria, however, has decided to be… creative.
Here, the Department of State Services (DSS) gathers intelligence, arrests suspects, detains them, files charges, prosecutes them, and sometimes appears surprised when courts ask uncomfortable questions—such as “Who exactly are you?” and “Under what law?”
These are not pedantic questions. They go to the heart of the rule of law.
You Must Be Able to Confront Your Accuser
One of the most basic principles of criminal justice—older than Nigeria, older than the common law, older than powdered wigs—is that a defendant has the right to confront their accuser.
This includes:
- Knowing who is accusing you
- Knowing the evidence against you
- Knowing how that evidence was obtained
- Challenging the credibility, methods, and motives of your accuser
This is why prosecutions are public acts carried out by public authorities subject to public scrutiny.
Now imagine the logical absurdity of a secret organisation prosecuting a case.
A defendant is entitled to disclosure. But intelligence agencies operate on non-disclosure.
A defendant can cross-examine witnesses. But intelligence officers rely on anonymity.
A defendant can challenge investigative methods. But intelligence tactics are classified.
So what exactly is the court meant to do? Convict on vibes and national security aesthetics?
If the DSS insists on prosecuting cases, it must accept the full consequences of that role—including exposure of personnel, methods, sources, and decision-making. If that sounds dangerous to national security, congratulations: you have just discovered why intelligence agencies do not prosecute cases.
Is the DSS a Secret Service or a Regular Law Enforcement Agency?
Nigeria’s problem is not merely institutional overreach; it is identity confusion.
If the DSS is a secret service, then by definition it should not be a prosecuting authority.
If it is a law enforcement agency, then why the secrecy, opacity, and resistance to disclosure?
At the moment, the DSS appears to exist in a legal superposition—both secret and prosecutorial, depending on convenience. Schrödinger’s Security Service.
This confusion would be resolved easily by reference to the law establishing the DSS. That foundational statute should clearly answer:
- Is the DSS an intelligence-gathering body only?
- Does it have prosecutorial powers?
- If yes, what safeguards exist to protect defendants’ rights?
- How does it reconcile secrecy with fair trial obligations?
If these answers are vague or absent, then the problem is not the courts—it is the statute.
What About the Administration of Criminal Justice Act (ACJA)?
This is where things get even more awkward.
The Administration of Criminal Justice Act is built on transparency, disclosure, fair hearing, and procedural openness. It assumes:
- Identifiable investigators
- Known complainants
- Disclosable evidence
- Cross-examinable witnesses
Nowhere does the ACJA carve out a special procedural universe for a clandestine agency that wants all the powers of prosecution but none of the burdens.
There is no “Section 999: Except Where National Security Vibes Are Involved.”
If the DSS claims prosecutorial authority, it must show precisely how the ACJA accommodates:
- Anonymous accusers
- Classified evidence immune from challenge
- Intelligence reports masquerading as proof
Courts are not intelligence briefings. Judges are not case officers. And “trust us” is not a recognised evidentiary standard.
Conclusion: Pick a Lane
Nigeria does not need to reinvent constitutional law. The model already exists, tested and functional.
Let intelligence agencies gather intelligence.
Let the police investigate crime.
Let prosecutors prosecute cases.
If the DSS wishes to prosecute, then it must cease to be secret.
If it wishes to remain secret, then it must hand over cases.
What it cannot be—at least not in a society governed by law—is investigator, accuser, and prosecutor all wrapped in one opaque trench coat.
That is not national security.
That is institutional convenience.
And convenience, as history teaches us, is a very poor substitute for justice.
Centre for Nigeria Progress 