The legality of Amotekun, By Ebun-Olu Adegboruwa, SAN

Posted by News Express | 21 January 2020 | 1,182 times

Gmail icon

•Ebun-Olu Adegboruwa, SAN writes from Lekki Lagos.

For so long a time in Nigeria, we have not witnessed the kind of solidarity and support from the people, for any policy of government as has happened in the last few weeks in the South West of Nigeria, where everyone, young or old, male or female, politician or professional, progressives, activists, religious leaders, students, traditional rulers, etc, rallied round their governors, for the launch of the neighbourhood security outfit code-named ‘Amotekun’. The scheme became popularised by the Federal Government’s hasty pronouncement, which came through the office of the Honourable Attorney-General of the Federation. From the subsequent statements of other principal officers of the Federal Government, it would seem that the government is not at peace with the idea of Amotekun, which in my view, is very unfortunate.

Under and by virtue of section 14 (2) (b) of the 1999 Constitution, ‘the security and welfare of the people shall be the primary purpose of government.’ Thus, it is very clear that the main reason government exists is for the good and safety of the people. So, anytime it becomes impossible for the government to guaranty the lives of its people, then that government has lost the purpose of its existence and should be scrapped. Nigeria has never been this challenged in the area of safety of lives and property. The Boko Haram menace accounts for the main threat to the lives of our fellow countrymen in the North-East, bandits have taken over the North-West, militants and criminals are in the South-East and South-South, whilst cultists and other criminals hold sway in the South-West. Without any exception however, kidnappers, who are on rampage all over the country, account for the greatest threat to the lives of the people presently.

Nobody is spared, as even security and law enforcement agents are also victims. Not long ago, a justice of the Court of Appeal, was kidnapped in Edo State in broad daylight, her police orderly was shot dead and others seriously injured. The kidnappers don’t even seem to fear God, as priests, pastors and imams have all tasted from their venom. It got to such an alarming point that people became restricted to their geographical locations in their respective States. The case of the South-West is made worse with the various forest reserves for cocoa, timber, kolanut, etc, all created during the agriculture revolution.

Section 214 of the Constitution has only established the Nigeria Police Force without specifying its powers or granting it any exclusivity in criminal matters. To discover the functions of the police in Nigeria, recourse will be made to the laws enacted by the National Assembly for that entity. In this case, it is the Police Act, section 4 of which states as follows:

‘The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all law and regulations with which they are directly charged …’ Clearly from these provisions, there is no exclusivity granted to the Nigeria Police Force in relation to safety of lives and property. What the Constitution has prohibited in section 214 is that ‘no other police force shall be established for the Federation of Nigeria or any part thereof.’ Under the Exclusive Legislative List contained in the Third Schedule to the Constitution, Defence is listed as Item 17 whilst ‘police and other government security services’ is listed as Item 45. A community reading of these provisions of the various laws regarding the police force in Nigeria reveals the following:

(i) Under section 214 of the Constitution, the name and nomenclature of The Nigeria Police Force is unique and exclusive and no other entity can be established in Nigeria or any part of it, with the same NAME. In other words, that name or organisation has been established, registered and reserved for Nigeria and so other countries like Ghana, Libya, America or indeed other States like Edo, Kebbi, Lagos or Ebonyi, cannot competently establish any other entity with the same NAME Nigeria Police Force. Any other entity can be established so long as it does not bear the NAME Nigeria Police Force, but it can be JTF, Hisbah Police, Amotekun, Operation Messa or whatever. The Constitution is only concerned with the NAME, not the functions.

(ii) The Constitution HAS NOT defined the role of the Nigeria Police Force as the sole entity responsible for security or law enforcement. The role of the Nigeria Police Force is as defined by any law enacted by the National Assembly.

(iii) The extant law on the issue, that is the Police Act, enacted by the colonialists on April 1, 1943, has not donated any form of EXCLUSIVITY for the Nigeria Police Force, so as to exclude any other entity or organization from participating in security or law enforcement.

(iv) Even though the 1999 Constitution has established the Nigeria Police Force in its section 214, thorough study and investigation will reveal that the Nigeria Police Force was long established under section 3 of the Police Act of 1943, when the colonialists NEVER had in mind the idea of exclusivity. Even after independence, regions had their own police.

(v) Any government, Federal or State or Local, is free to establish any other entity for security, peace, order or law enforcement, so long as it does not reflect the NAME: Nigeria Police Force.

(vi) The National Assembly of Nigeria, on June 28, 2003, established the Nigeria Security and Civil Defence Corps, consisting of volunteers and regular members. The NSCDC Act in its section 3 (1) (a), vests the Corps with power to ‘assist in the maintenance of peace and order and also in the protection and rescuing of civil population in the period of emergency.’ In section 3 (1) (f), the Corps has ‘power to arrest, investigate and hand over to the Nigeria Police, for further investigation and prosecution, any person who is involved in any criminal activity.’ In May, 2007, the National Assembly amended the NSCDC Act, empowering the Corps to bear arms.

(vii) The National Assembly has by the NSCDC Act confirmed that policing, detection and prevention of crime, is NOT EXCLUSIVE to the Nigeria Police Force. Thus, Amotekun cannot be illegal or prohibited, as long as it does not bear the name ‘Nigeria Police Force’, which has been reserved for the federal government under the Constitution.

(viii) Very recently in 2016, Lagos State established the Lagos Neighbourhood Safety Corps, with the following functions:

  • Gathering information about crimes, crime in progress, suspicious activities and crime suspects among other things.
  • Making available such relevant information on rimes, crime in progress, suspicious activities and crime suspects to the police or other security agencies that require it.
  • Putting structure in place to ensure that hoodlums and cult groups do not have the opportunity to operate.
  • Undertaking routine motorised patrol day and night.
  • Reducing the crime rate and ensuring that offenders are identified and made to account for their misdeeds.
  • Following up on arrest of offenders to the court and ensuring justice.
  • Timely reporting of suspicious activities and crimes in progress to the police or other security agencies and improving relationship between the police and the community as it concerns law enforcement.
  • Contributing to maintaining community peace.

(ix) In 2018, the National Assembly again established the Peace Corps of Nigeria for the similar purpose of security and intelligence gathering but the Bill was not assented to by the President. However, the point has been made by that singular act of passing the Bill, that security is not exclusive to the Nigeria Police Force.

(x) Several States in Nigeria, have granted amnesty to cultists, bandits and other criminals, duly endorsed by the federal government, in order to achieve peace in those States.

(xi) Some other States in the federation have local law enforcement outfits, such as Hisbah, for the enforcement of their own local laws, to the knowledge and endorsement of the federal government. Indeed, in Zamfara State, the local police was employed for the arrest of a young man accused of stealing, leading to the amputation of his hand.

From all the above, it is the federal government that is guilty of hasty conclusions about Amotekun, which has nothing to do with Nigeria Police Force. Now, the Hon Attorney-General of the Federation is a member of the All Progressive Congress, which in 2015 released its Manifesto to all Nigerians, promising to ‘enable States and Local Governments to employ State and Community Police to address the PECULIAR NEEDS OF EACH COMMUNITY.’ Virtually all residential estates across Nigeria have security men helping to gather intelligence and maintain peace. The question, then, is this: what is so special about Amotekun that the federal government is sounding jittery?

The federal government should embrace Amotekun and not antagonise it. Right now, the South-West governors and indeed all other governors across Nigeria, have the golden opportunity of rescuing their people from criminals and bandits. This will also address the unemployment menace and help reduce crime, grow the business environment and bring prosperity and peace to our people. The federal government should let Amotekun be, as there is absolutely nothing illegal about it, as long as there is a law in force to back it up. But if the government feels challenged with the outfit, then it could originate a suit in the Supreme Court, in accordance with the new year message of the President that henceforth, all its actions will follow the rule of law.


Source: News Express

Readers Comments

0 comment(s)

No comments yet. Be the first to post comment.


You may also like...