The recent arraignment of former Kaduna State Governor, Mallam Nasir El-Rufai, over alleged cybercrime connected to claims of unlawful interception of communications involving the National Security Adviser, Mallam Nuhu Ribadu, has triggered widespread legal and political debate across Nigeria.
According to reports, the Federal Government initiated criminal proceedings following statements allegedly made by El-Rufai during a televised interview on ARISE TV, in which he referenced alleged surveillance or wiretapping involving the office of the National Security Adviser.
While the political undertones of the case are impossible to ignore—given El-Rufai’s history as a controversial and outspoken public figure—the legal foundations of the charge deserve careful scrutiny.
This article examines the core legal issues raised by the charge, particularly concerning the status of the Department of State Services (DSS), prosecutorial authority under Nigerian law, the classification of televised statements as “extrajudicial statements,” and the constitutional right against self-incrimination.
1. The Legal Identity of the DSS Under Nigerian Law
One of the primary concerns raised in reaction to the charge is the reference to the Department of State Services (DSS).
Under Nigerian law, specifically the National Security Agencies Act, the statutory body created and recognized is the State Security Service (SSS). The Act establishes three principal security agencies:
The Defence Intelligence Agency (DIA)
The National Intelligence Agency (NIA)
The State Security Service (SSS)
The term “Department of State Services (DSS)” is widely used in public discourse and media reporting. However, from a strict statutory standpoint, the entity recognized by the Act remains the State Security Service (SSS).
This raises an important technical legal question: if the charge sheet refers to an entity not explicitly recognized by statute, does that constitute a fatal defect in the charge, or can the court treat DSS and SSS as interchangeable for practical purposes?
In Nigerian jurisprudence, courts have sometimes treated misnomers as curable defects where the identity of the institution is clear and no miscarriage of justice occurs. However, in criminal proceedings—where precision is paramount—technical inconsistencies can become significant.
2. Does the SSS Have Prosecutorial Powers?
Another legal issue relates to prosecutorial authority.
The National Security Agencies Act establishes the SSS as an intelligence and internal security body. It does not explicitly grant prosecutorial powers to the agency.
Under the 1999 Constitution of the Federal Republic of Nigeria (as amended), prosecutorial authority primarily resides with:
The Attorney-General of the Federation (Section 174)
The Attorney-General of a State (Section 211)
In practice, the SSS (or DSS as commonly referred to) conducts investigations and may collaborate with the Office of the Attorney-General for prosecution. However, it does not independently exercise prosecutorial authority in the constitutional sense.
If the SSS initiated the charge directly without proper authorization from the Attorney-General of the Federation, that procedural pathway could become a point of legal contention.
3. Was the ARISE TV Interview an “Extrajudicial Statement”?
Central to the controversy is whether El-Rufai’s televised remarks qualify as an “extrajudicial statement.”
An extrajudicial statement, in Nigerian criminal law, generally refers to a statement made outside the courtroom, typically to law enforcement authorities, often under caution, and capable of being tendered as evidence.
The interview in question reportedly occurred on Arise TV, during which El-Rufai allegedly referenced claims of wiretapping involving the National Security Adviser.
However, the legal definition of a confessional statement requires certain safeguards:
It must be voluntary.
It must be made under caution.
It must be recorded in compliance with evidentiary rules.
If El-Rufai’s statement was made during a live television interview, not under caution, and not in the course of police interrogation, can it legally qualify as an extrajudicial confessional statement?
Many legal practitioners would argue that a televised political comment does not automatically transform into a legally admissible confession—particularly where the speaker did not admit to personally committing the alleged offense.
4. Did El-Rufai Admit to Wiretapping?
Another critical issue is the substance of the statement itself.
From available accounts, El-Rufai did not explicitly state that he personally wiretapped the National Security Adviser. Rather, he allegedly claimed that someone else had done so and had informed him.
If that is accurate, the legal burden on the prosecution becomes heavier.
To secure a conviction for cybercrime or unlawful interception under the Cybercrimes (Prohibition, Prevention, etc.) Act, the prosecution must prove:
Direct involvement
Conspiracy
Aiding and abetting
Or other forms of participation
Mere repetition of information—if not proven to be false and malicious—may not meet the threshold required for criminal liability, especially in politically sensitive contexts.
5. Constitutional Right Against Self-Incrimination
Perhaps the most fundamental safeguard in this case is Section 36(11) of the 1999 Constitution, which provides that no person charged with a criminal offence shall be compelled to give evidence against himself.
This right against self-incrimination is a cornerstone of Nigerian criminal jurisprudence.
Even if El-Rufai made statements that could be interpreted as implicating himself, he cannot be compelled to testify against himself during trial.
Furthermore, any statement sought to be relied upon must pass the admissibility tests under the Evidence Act, particularly concerning voluntariness and procedural compliance.
If the prosecution’s case hinges significantly on the televised interview, the court will likely examine:
Whether the statement was voluntary
Whether it was confessional
Whether it was corroborated
Whether it meets admissibility standards
6. Political Context and Legal Perception
Mallam Nasir El-Rufai is no stranger to controversy. As former Governor of Kaduna State and a prominent political figure, he has often made bold and polarizing statements.
The National Security Adviser, Mallam Nuhu Ribadu, is also a significant figure in Nigeria’s security architecture, currently serving under President Bola Ahmed Tinubu.
While political rivalries may color public perception, courts are obligated to examine only the legal merits of the case.
This is why the technical issues raised—statutory identity of the DSS, prosecutorial competence, classification of the statement, and constitutional protections—are not trivial.
They go to the root of due process.
7. Will the Charge Survive Judicial Scrutiny?
Nigerian courts have, in recent years, demonstrated increasing willingness to strike out defective charges.
If the charge is improperly framed, cites a non-existent statutory body, or relies on evidence that fails admissibility standards, the defense may succeed in having it dismissed.
On the other hand, if the prosecution can:
Clarify the statutory references
Establish proper authorization
Prove elements of the alleged cybercrime
Demonstrate intent and participation
Then the matter will proceed to full trial.
8. A Balanced Legal View
It is possible to disagree strongly with El-Rufai’s political record and rhetoric while still questioning the legal robustness of the charge.
The rule of law demands consistency. It demands precision. It demands adherence to constitutional safeguards—even for individuals who may be unpopular or controversial.
The issue is not whether one is a supporter or critic of El-Rufai.
The issue is whether the charge, as framed, satisfies the strict requirements of Nigerian criminal law.
Conclusion: Due Process Must Prevail
This case raises serious and legitimate legal questions:
Is the reference to DSS legally sustainable under the National Security Agencies Act?
Does the SSS possess prosecutorial authority independent of the Attorney-General?
Can a televised political comment qualify as a confessional extrajudicial statement?
Did the accused actually admit to committing the offense?
Will constitutional protections against self-incrimination apply decisively?
These are not partisan questions. They are questions of law.
The courtroom—not social media—will determine the outcome.
Time, as always, will tell.
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