Abuja (Sundiata Post) – Legal luminaries are divided over the declaration of the Attorney General of the Federation and Minister of Justice, Mr Malami, SAN.
Some have even said if Hisbah executing sharia law in Kano and Civilian JTF, in Kaduna are legal, then Amotekun should be regarded as such.
Recall that the Federal Government on Wednesday, declared as illegal, the security outfit known as Amotekun, set up by the South West states, saying it was not backed by any known law in the land.
The Attorney General of the Federation and Minister of Justice, Mr Malami, SAN, who disclosed the Federal Government position on the security outfit, had said, “The setting up of the paramilitary organisation called “Amotekun” is illegal and runs contrary to the provisions of the Nigerian law.”
It will be recalled that the South West governors, who floated Amotekun, did so, citing the inability the current security structure in the country to adequately project people of the region from insecurity, namely herdsmen attacks, kidnapping, banditry among others.
In this edition of Law and Human Rights, some notable lawyers, disagreed, with the AGF’s position on Amotekun, while some are in support of the position that it is unknown to Nigeria law. Those in support of the opinion said that the security outfit should be given an opportunity to see if it can help in the security challenges facing the country currently.
Dr Olisa Agbakoba, SAN
I think this matter touches on limits of federalism and it throws up a good opportunity to hear from our courts how far States can exercise legislative and or executive powers in the discharge of their duties and conversely what is the limit of powers of the Federal Government and whether the AGF correctly issued his legal opinion. This is a test case for the principles of Federalism
John Odugbela SAN
I don’t think the Federal Government has that right to declare Amotekun illegal. First of all we are practicing a Federal System of Government. The security outfit is for the South West to compliment the work of other security agencies.
There is no doubt that the security situation in the country is not good and we hear about kidnapping, robbery, assassinations, etc. I therefore can’t find the laws, of the federation that the setting up of the security outfit has breached.
If you say the governors are the security chiefs in their respective states, do they not possess such rights and powers to strategize and implement modalities for such protection?
Also, I don’t think such decisions by the federal government should be conveyed by the Press Secretary off the Honourable Attorney General.
The issue is such that it should be addressed by the Presidency.
I believe if the Honourable Attorney General had wanted to clear some issues on the setting up, he would have probably invited the Attorneys General of the states of the western states.
The position of the FG was communicated by the AGF whose view is largely anchored on the centrality of the Nigerian Police Force as stipulated in Section 214(1) of the 1999 Constitution (As Amended). The law in the same section frowns at the establishment of any other police force for the Federation or any part therefore.
Furthermore, by item 45 of the Second Schedule of Constitution, the police and other government security services shall be the exclusive preserve of the Executive. The valid question therefore is “has the government in the South Western Region of Nigeria established in Amotekun a police force other than the Nigerian police force? My direct answer is no.
Thus, the AGF and the FG should raise the red flag when Amotekun gets to that threshold.
At the moment it seems an initiative creatively adopted by the political leadership in the South Western Nigerian to deal with the security challenges in their region and compliment the efforts of federal security agencies.
This development has concretely exposed and thrown up the inadequacies and inefficiencies of a centralised police force in a Federation.
At the moment, there is hardly any police Command in a State of the Federation that isn’t heavily funded, equipped and assisted by the State. In most states of the Federation, there exist parallel security outfits lauded and acknowledged by State actors including established conventional security institutions.
The tendency towards State policing as opposed to centralised and regional policing must be acknowledged and adhered to for a functioning policing system. FG can encourage, guide or insist on the guidelines and parameters for their operations or challenge its creation in court.
Security and defence are issues that fall within the exclusive legislative list in the 2nd schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended). These items are exclusively within the legislative competence of the federal government and cannot be legislated upon by the State government(s).
To the best of my knowledge, there is no law (whether federal or state) creating Amotekun being as paramilitary outfit in charge of security. In my opinion, it is illegal.
In all honesty, the federal government’s declaration, in a flash, of the South West Governors’ creation of the Amotekun security outfit to assist, work with, and supplement, the police and other security agencies, in manners and circumstances contemporaneous with the outfit’s birth, is, to say the least, unjustifiably precipitate, double-faced, unconstitutional and sterile of high moral grounds.
Agreed, at least on the surface, that security is in the federal exclusive legislative list, over which only the federal government can legislate.
However, under the Constitution, each and every of the Governors is the Chief Security Officer of his State, over which enormous security votes are yearly budgeted and placed at his disposal.
To that extent, such Governors’ creation of outfit(s) in the mould of Amotekun, in furtherance of their discharge of their responsibilities as Chief Security Officers, without more, is not illegal, in the terms wrongly declared by the federal government through the Honourable Attorney -General and Minister for Justice, particularly as the declaration came contemporaneously with the outfit’s birth, if not before the said birth.
The government would have allowed the security group’s take-off to inure, with the attendant full-blown modus operandi, which will provide justifiability for its declaration as illegal, based on it’s clearly observed nature of operations, and not before then, as happened in the case of then “Bakassi Boys”in the Eastern part of the country under Obasanjo’s government. This precipitate nature of the government’s declaration constitutes the first vice which inflicts it.
The second affliction of vice inherent in the declaration can be found in its being double-faced since the same federal government, which is now bringing sledge-hammer, if not guillotine, on Amatokun, as done to IPOB, has not made any iota, semblance or modicum of declaration in respect of similar security establishments, as the Civilian Joint Task Force (CJTF ) and the Hisbah Police operating, for years, in the Northern States of Nigeria, even when some of them bear arms, without license, and operate in ways and manners that clearly expose their unconstitutionality. Why the longstanding, and apparently consistent, double-faced treatments, one may ask?
Besides, the general state of insecurity mercilessly holding the country by the jugular has brought into being the imperative nature of the Governors, actions, which call for praises and commendations , lack of which, as in this case, have deprived the government’s actions of requisite high moral grounds, bearing in mind that security of the people is the first, primary and foremost purpose and responsibility of government.
The Federal Government declaration of the Amotekun as being illegal is in order.
There is no law to the best of my understanding which established this group of people known as the Amotekun nor regulate their activities within the South Western States. Society is governed by law and order.
Assuming that this security groups misbehave today how do we check their excesses.
In Lagos for instance, the activities of Lagos State Traffic Management members or groups otherwise known as LASTMA is regulated by the Lagos State Traffic Management Laws of Lagos 2015, same for Neighbourhood watch. Someone should tell me under which specific laws do Amotekun operate. I concede to the argument that the governor is the chief security officer of the state he/she governs but this constitutional provision is not at large. The 1999 constitution Section 214 stipulates that there shall be a police force for Nigeria, which shall be known as the Nigeria Police, and subject to the provision of these sections no other police force shall be established for the Federations or any part thereof.
This is the extant law except and until the various Legislative Houses of the South West States legislate Amotekun into existence; their functions remain that of the Nigerian Police.
Chapter II of the 1999 constitution as Amended partiticilarly Section 14(1) thereof provides;(b)the security and welfare of the people shall be the primary purpose of government; and
Section (c) 15(3)(a) provide adequate facilities for and encourage free mobolity of people, goods and services throughout the Federation.
Know it now that our government is not or had not done enough for this country in terms of security and in the area of protecting lives and property.
Note that the president and state Governors share concurrent jurisdiction in protecting lives and properties.
Just as the president is the chief security Officer of the federation, the State governors are also the Chief Security Officers in their respective States.
Consequently where the president as it is in Nigeria failed to provide adequate security measures for the country, the Governors in each state, are empowered under the law to provide adequate security measures in each of their respective states of the frderation.
Therefore the declaration of Amotekun by the Federal Government as illegal security outfit is completely wrong and a decision taken too far.
I urge the South west Governors to challenge that decision of the Federal Government in court.
Nigeria operates a constitutional democracy. What that means is that we draw authority and inspiration from the provisions of our constitution.
In the instant case, the authority to have Amotekun as a security outfit in the Western parts of Nigeria has been provided for in our constitution.
Section 45 of the 1999 constitution, as altered, provides that:
“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
a: in the interest of defence, public safety, public order, public morality or public health; or
b: for the purpose of protecting the rights and freedom or other persons.”
Now, security is a massive challenge in Nigeria particularly in the South Western parts of Nigeria where Lagos, the economic hub of Nigeria is located.
The lives of citizens of Nigerians within the South western region, if not protected and secured may culminate in all sorts of national challenge.
That is why Amotekun was created to address the challenges envisaged by section 45 of the 1999 constitution, as altered.
What the Federal government ought to do is to addreses the circumstances surrounding its establishment.
That is gaining an overlook of the entire Amotekun by superintending the modus operandi of the system,because Nigeria operate in a federal system of government which gives us a single political system.
The opinion of an individual cannot override the opinion of the entire Southwest. The States in the region have spoken, though they need to back up the establishment of Amotekun with statues. The reasoning and / or the opinion of the AGF on Amotekun is his personal opinion. It does not mean the operation should not go on. In any event, if federal government is not comfortable with such Amotekun, he can approach court for interpretation of the constitution.
If Hisbah executing sharia law in Kano and Civilian JTF, in Kaduna are legal, then Amotekun should be regarded as such.
Culled from Thisday