The Department of State Services (DSS), formerly known as the State Security Service (SSS), appears to have discovered a new national security weapon.
Not surveillance.
Not intelligence gathering.
Not detention.
Litigation.
One begins to wonder whether somewhere within the agency’s legal department sits a frustrated Senior Advocate of Nigeria trapped in the body of an intelligence officer, eagerly searching for the next constitutional question to place before a judge.
For much of its history, the DSS was not known for initiating lawsuits. It was an agency that investigated, arrested, detained and occasionally prosecuted. More often than not, it found itself in court because somebody was suing it.
Today, however, the agency appears increasingly comfortable in the courtroom. It prosecutes criminal cases, pursues constitutional declarations, seeks injunctions, files defamation suits and actively invites judicial intervention in matters that previous generations of security officers might have dealt with through executive action.
Whether this development is a sign of institutional maturity or simply institutional litigiousness remains open to debate.
What is beyond debate is that the DSS has become one of Nigeria’s most active courtroom participants.
The DSS as Defendant
Historically, the agency’s litigation record was largely defensive.
The law reports are replete with cases involving allegations of unlawful detention, violations of constitutional rights and abuse of power.
The famous litigation involving Chukwuemeka Odumegwu Ojukwu raised important questions concerning the jurisdiction of courts over actions against the SSS.
Former Kaduna State Governor Nasir El-Rufai successfully challenged his detention by the agency.
Anthony Okolie obtained damages after his prolonged detention over a telephone number previously associated with a daughter of former President Muhammadu Buhari.
Numerous citizens have brought successful actions under the Fundamental Rights Enforcement Procedure Rules alleging unlawful detention, denial of liberty and breaches of due process.
For decades, therefore, the agency’s relationship with the courts was largely involuntary.
Citizens sued.
The DSS defended.
Judges adjudicated.
The agency paid damages.
Life moved on.
The Shift Begins
Something appears to have changed.
The DSS increasingly sees litigation not merely as a risk to be managed but as a tool to be deployed.
The agency is no longer content to appear only as a defendant.
It now appears regularly as claimant, prosecutor and constitutional litigant.
This is perhaps one of the most significant institutional changes in Nigeria’s security architecture.
Rather than relying exclusively on executive authority, the DSS increasingly seeks judicial endorsement for its actions.
In principle, that should be welcomed.
Courts are where constitutional democracies resolve disputes.
The alternative is government by decree, arrest or administrative fiat.
Nigeria has already had more than enough experience with those methods.
The Sowore Prosecution
Perhaps the clearest illustration of this transformation is the ongoing prosecution of Omoyele Sowore.
The publisher and activist is being prosecuted by the DSS over social media publications in which he described President Bola Ahmed Tinubu as a criminal.
The prosecution alleges violations of cybercrime laws, including the dissemination of information capable of causing public disorder and threatening public safety.
The significance of the case extends beyond the legal merits of the allegations.
The case demonstrates a DSS that is increasingly prepared to test the boundaries of criminal law, cybercrime legislation and political speech through judicial proceedings.
The agency has called witnesses, tendered electronic evidence, opposed defence applications and actively pursued the matter before the Federal High Court.
One DSS witness reportedly told the court that the publications generated public tension and posed a threat to public order.
Supporters of the prosecution argue that freedom of expression does not include the right to make false and defamatory allegations.
Critics argue that political speech deserves the highest level of constitutional protection and that criminal sanctions should not be used to police public debate.
Reasonable minds may differ.
What cannot be disputed is that the DSS chose the courtroom rather than alternative security measures.
That, in itself, represents a significant institutional shift.
The Pat Utomi Case
If the Sowore prosecution demonstrates the agency’s willingness to test the limits of criminal law, the litigation involving Professor Pat Utomi demonstrates its willingness to test constitutional boundaries.
The DSS approached the Federal High Court seeking declarations and injunctive relief against Utomi’s proposed “shadow government.”
The agency argued that the initiative was incompatible with Nigeria’s constitutional structure and posed potential risks to national stability.
The matter was extraordinary.
Traditionally, security agencies investigate completed acts or prevent imminent threats.
The DSS instead invited the court to determine the constitutional legality of a political concept.
The agency sought judicial clarification before events unfolded rather than after.
Ultimately, the court agreed with the DSS and declared the proposed arrangement unconstitutional.
Whatever one’s view of the judgment, the case illustrates a new institutional confidence.
The DSS is no longer waiting for disputes to arrive at its doorstep.
It is actively creating opportunities for courts to define the boundaries of political conduct.
The DSS as Claimant
Perhaps even more remarkable is the agency’s willingness to pursue civil litigation.
Security agencies traditionally have thick skins.
They investigate allegations; they do not usually sue over them.
The DSS appears to have adopted a different philosophy.
Its successful defamation proceedings involving allegations made against its officers demonstrated a willingness to protect institutional reputation through civil actions.
Again, this is unusual territory for an intelligence agency.
But it also reflects an organisation increasingly comfortable with legal processes.
The modern DSS appears to believe that if someone says something objectionable, unconstitutional, defamatory or potentially destabilising, the answer may not be a detention order.
It may be an originating summons.
A Better Direction?
There is something quietly encouraging about this development.
The old stereotype of security agencies was simple.
Arrest first.
Explain later.
Sometimes never explain at all.
The emerging approach appears to be different.
Sue first.
Argue later.
Let the judge decide.
That is a healthier instinct for a constitutional democracy.
A security agency seeking declarations, injunctions and judicial pronouncements is at least operating within a framework of legal accountability.
The courts provide transparency.
They provide reasons.
They provide appeal mechanisms.
They provide public scrutiny.
All of these are preferable to arbitrary exercises of power.
The Danger
There is, however, a risk.
Courts are not designed to resolve every political disagreement.
Nor should every controversial opinion become a matter of national security.
The challenge for the DSS is distinguishing genuine threats to constitutional order from mere political dissent, criticism or provocative speech.
If every disagreement becomes a lawsuit, the courts risk becoming extensions of political contestation rather than neutral arbiters of legal disputes.
The line between protecting constitutional order and policing political debate is a delicate one.
A mature democracy requires that line to be carefully respected.
Conclusion
Whether there is indeed a frustrated lawyer somewhere within the DSS legal department may never be known.
What is clear is that the agency has undergone a remarkable transformation.
Once known primarily for intelligence gathering, arrests and detention, it now appears increasingly comfortable wielding pleadings, affidavits, originating summonses and injunctions.
The DSS of today prosecutes journalists, sues civil society organisations, seeks constitutional declarations against academics and invites judges to determine the limits of political conduct.
The old DSS knocked on your door at dawn.
The new DSS serves you with court papers.
For a constitutional democracy, that is probably progress.
Even if some of the lawsuits remain highly controversial.
Centre for Nigeria Progress 