Spies in the Dock: Who Really Has the Power to Prosecute in Nigeria? By Lawson Akhigbe

Nigeria has never been shy of institutional drama. Give us a statute, a security agency and a politically sensitive defendant, and we will produce a constitutional puzzle.

At the centre of the latest legal theatre is the Department of State Services (DSS): is it merely an intelligence-gathering body, or can it properly don wig and gown and prosecute criminal cases — particularly in matters touching national security?

Let us leave sentiment aside and interrogate the law.

1. The Constitutional Starting Point: Who Owns Prosecution?

The fountainhead of prosecutorial authority in Nigeria is Section 174 of the 1999 Constitution. It vests in the Attorney-General of the Federation (AGF) the power to:

Institute criminal proceedings, Take over and continue proceedings instituted by any other authority, Discontinue criminal proceedings (the famous nolle prosequi).

This power is exclusive in origin but delegable in practice. Agencies prosecute not because they are sovereign prosecutors, but because they act either:

Through statutory authority; and/or Under the supervisory umbrella of the AGF.

That distinction matters.

2. What the DSS Is (and Is Not)

The DSS was created under the National Security Agencies Act 1986 (now Cap N74 LFN 2004). Its statutory mandate includes:

Prevention and detection of crimes against internal security, Protection of classified matters, Counter-intelligence.

Nowhere in the Act is there an explicit, freestanding grant of prosecutorial power.

Contrast that with the Economic and Financial Crimes Commission (EFCC), whose establishing statute expressly empowers it to investigate and prosecute economic and financial crimes.

That textual difference is not cosmetic. In statutory interpretation, express powers are not implied lightly — especially where coercive criminal jurisdiction is concerned.

3. Police Powers as a Useful Comparator

The Nigeria Police Force prosecutes routinely. Why?

Because Section 23 of the Police Act (and long-standing practice affirmed judicially) recognises police prosecutorial authority in magistrate courts, subject again to AGF control.

The police have an explicit statutory litigation role. The DSS does not enjoy comparable clarity in its enabling Act.

4. The Judicial Angle: What Have the Courts Said?

There has been considerable debate around whether the Supreme Court has definitively pronounced on DSS prosecutorial authority, particularly in Falana v. FRN (2023). What is clear in Nigerian jurisprudence, however, is the broader principle:

Where a statute creates an agency and prescribes its functions, that agency must act within the four corners of that statute.

In cases such as Saraki v. Federal Republic of Nigeria, the Supreme Court emphasised that prosecutorial competence must align with statutory authority. An agency cannot roam beyond its enabling law simply because a crime exists.

The implication is straightforward:

If the DSS prosecutes, it must demonstrate either:

Statutory authority; or Valid delegation from the AGF.

Anything else invites a jurisdictional challenge.

5. The National Security Exception Argument

Proponents of DSS prosecutorial power often advance a pragmatic claim:

National security matters are sui generis; intelligence and prosecution cannot be neatly separated.

Comparative systems complicate that argument.

In the United Kingdom, MI5 gathers intelligence, but prosecutions are conducted by the Crown Prosecution Service.

In the United States, the Central Intelligence Agency does not prosecute; the Department of Justice does.

The separation exists to protect:

Evidentiary integrity, Fair trial rights, Institutional accountability.

When the same body investigates covertly and prosecutes overtly, transparency tensions inevitably arise.

6. The Real Legal Question

The issue is not whether the DSS can file charges in practice. It sometimes does.

The issue is whether it does so:

As a matter of clear statutory competence; or As a matter of executive convenience.

In constitutional democracies, convenience is not a source of power.

7. The Structural Risk

Blurring intelligence and prosecution creates three doctrinal hazards:

Due Process Risk – Intelligence methods are not always disclosure-friendly. Criminal trials require disclosure. Institutional Overreach – Agencies expand beyond legislative design. Separation-of-Powers Strain – Executive concentration of coercive power grows unchecked.

Nigeria’s constitutional architecture deliberately centralises prosecutorial discretion in the AGF to prevent fragmentation and turf wars.

Ironically, when agencies independently prosecute without clear statutory footing, the result is precisely the fragmentation the Constitution sought to avoid.

8. Where This Leaves Us

The clean legal position is this:

The DSS unquestionably has investigative authority in national security matters. Prosecutorial authority must trace back to either statute or the Attorney-General. Absent explicit statutory language, the safer constitutional interpretation is that DSS prosecutes through delegated authority, not inherent power.

If Parliament wishes to convert spies into statutory prosecutors, it may amend the National Security Agencies Act and say so plainly.

Until then, the question is not theatrical. It is constitutional.

Because in a republic governed by law, even spies must point to a section number.