505 views | Hameed Ajibola Jimoh Esq. | January 20, 2020
For quite some days, there has been the rising issue of a codenamed security operation named ‘Operation Amotekun’, launched by some governors of some South-Western States in Nigeria, such as Lagos State, Ogun State, Oyo State, among others, the launch which was said to have been necessitated by the alleged criminalities rising in some communities in those States since the efforts of the incumbent security forces of the Federal Government such as the Nigeria Police Force, etc., have not been able to find a lasting solutions to these menaces. The Honourable, the Attorney-General of the Federation had a few days ago, described the said security outfit as illegal, though, this description has received a whip of resentment from some members of the public, lawyers, human rights activists, as well as those States sharing the idea and initiative of the security operation. To these contesting persons, the said security operation is a welcome development in curbing crimes and criminalities in those States that have embraced the same and applications have been called for from intending persons to be recruited into the security outfit. Some other States of the Federation have shown interest to also establish a similar security outfit for that purpose, though with different nomenclature. This paper aims to share some legal views on the subject matter considering the available laws applicable to the subject matter.
First and foremost, in my humble view, since the word ‘crime’ is the basis of this security outfit, then, there are laws that provide for criminal procedures in Nigeria. The various States of the Federation have an almost similar procedure that permits private persons to carry out the arrest and handing over of persons suspected to have committed or found committing offenses or breaking into their property or damaging public property to the Police i.e. the Nigeria Police Force. For instance, see sections: 20, 21, 22 and 23 of the Administration of Criminal Justice Act, 2015 (applicable to Federal Offences and the Federal Capital Territory, Abuja). This is in relation to private persons. From these provisions, some private security operating outfits have emerged either as vigilante groups, domestic security or private house security staff, etc., though, without carrying arms and ammunitions except as licensed by the Inspector-General of the Police or such police officer empowered to license according to established law guiding the Firearms and the Regulations made thereunder.
Nevertheless, there is an issue that I find distinguishable from Operation Amotekun as currently being launched. This has to do with the fact that the security outfit whether to carry or use guns, arms or ammunition or not, was established by the executive arms of some State Government in the South-West of Nigeria, without having proved any State law legislated by the House of Assembly of those States legalizing such establishment or creation as democratically provided by the Constitution of the Federal Republic of Nigeria, 1999 (as amended)- hereinafter referred to as the Constitution. Permit me to emphasize that the purpose of this paper is not to check whether it is legal or criminal for such security outfit to use or operate using guns, arms, and ammunition, rather, it is to check the legal status or power of those State Governments either as executive or as legislature or with both efforts to establish any or such security outfit in those parts of Nigeria? Therefore, the vital legal question to ask is ‘does a State government whether as executive or legislature has the power to legalize or create any security outfit or in this case, the ‘Operation Amotekun’ or any other nomenclature that it might have been created for whatever reason? In answering this question, I would like to call the Constitution in aid being the ground norm of the nation.
First and foremost, I would like to address the executive powers of those State governments to establish any security outfit or Operation Amotekun in this case. By virtue of the provisions of section 5(3) of the Constitution, it is provided thus ‘(3) The executive powers vested in a State under subsection (2) of this section, shall be exercised as not to— (a) impede or prejudice the exercise of the executive powers of the Federation; …. (c) endanger the continuance of a federal government in Nigeria.’. (Underlining is mine for emphasis). Leaping from this provision of the Constitution is to the effect that the executive Governors shall uphold and promote Federalism.
Federalism in my view is a constitutional principle whereby powers are shared among the Federal, State, and Local Governments. See sections: 2 and 3 of the Constitution. Therefore, the Constitution in section 5(2) clearly provides the powers exercisable by the executive Governors thus ‘(2) Subject to the provisions of this Constitution, the executive powers of a State– (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor or Commissioners of the Government of that State or officers in the public service of the State; and (b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of that State and to all matters with respect to which the House of Assembly has for the time being power to make laws.’. From this provision, it is clear that the executive powers cannot be conferred in isolation rather, there must be such powers to establish the security outfit delegated either by the Constitution and or the House of Assembly for what such House of Assembly has the power to make such law as provided by the Constitution. Now, this issue of the executive powers to create Operation Amotekun will be suspended till I am able to conclude on whether the State House of Assembly has such power to make such law for the establishment of the security outfit?
The straight and easiest way to verify to resolve this issue is considering the Exclusive and the Concurrent and Residual Legislative Lists which are the codes of powers for each of the powers of the Federal and State Legislatures to make laws in Nigeria or for any part of the country. A quick check on the Exclusive Legislative List confirms that under item 45 of the List of Part I of the Second Schedule to the Constitution, the following is provided ’45. Police and other government security services established by law’. From this item 45, it is clear that police and other government security services must be established by law and the law being referred to here is the Act of the National Assembly. As of the moment, in my humble view, there is no such Act of the National Assembly which has empowered those State Governments to establish such Operation Amotekun. The word ‘exclusive’ used for all the items under Part I of the Second Schedule to the Constitution shows that only the National Assembly has or enjoys such powers. In the case of A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. the Supreme Court has clearly defined the various separation of the powers of the legislative levels of the Federation thus: ‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list. The National Assembly also has the power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has the power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws.
The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists’. (Underlining is mine for emphasis). This then leads us back to the executive powers which I had suspended earlier above. It is my humble view that since no State House of Assembly has been conferred any power to legislate on ‘police and other government security services’ and the fact that Operation Amotekun relates to police and security services established by the executive government of those States of the South-West (and not private), then, the executive governors (as government) in my humble view, lack the constitutional powers to establish or launch the Operation Amotekun.
Furthermore, as far as the Constitution is concerned, there can only be one police force throughout Nigeria. See section 214 (1) of the Constitution and that is the current situation in Nigeria and though out all parts of Nigeria. Also, to the best of my knowledge, the issue of State police or State policying has been proposed for necessary legislative processes but there has been no law or Act of the Parliament (National Assembly) that has passed the same for the Presidential Assent. So, the issue is unsettled until such Law is made by the National Assembly and following the necessary amendment of the Constitution.
Finally, therefore, it is my humble view that the position of law as of the moment is that the creation of the Operation Amotekun by those southwest Governors (as government) is illegal, unlawful, unconstitutional, null and void and of no effect, as the only government recognized by the Constitution to establish any police or other security services of the Federation or any part of it is the National Assembly (and not even any of the executive (of the Federation or State has such power), as section 5 (1) of the Constitution has only rested the powers of the executive presidency to those laws made by the National Assembly). Therefore, I am of the firm and humble submission with due respect to those South-West Governors that their acts of establishing the Operation Amotekun (regardless of the genuine reasons given for such unconstitutional act) is forceful, undemocratic and a breach of their solemn oath to uphold the Constitution by their oath of office sworn to as contained in the Seventh Schedule to the Constitution. They are hereby advised most humbly, to reverse and cancel the said security outfit named in whatever nomenclature forthwith and revert and refer their grievances to the necessary federal government’s security agency (ies) to find solutions to their aggrieved grievances. This is what I believe is in tandem with democratic principles and the due process of law as well as laying a good example for others to follow.
More so, two wrongs, in my humble view, do not make a right! I, therefore, suppose that the Attorney-General of those State Governments (who are lawyers by virtue of their office) would convey necessary legal advice to the respective Governors on the true legal position on the legality or otherwise of the creation and or launching of the Operation Amotekun. This is their duty as conferred on those lawyers by virtue of Rule 1 of the Rules of Professional Conducts for Legal Practitioners, 2007.