Barrister Kayode Ajulo having a tete-a-tete with President Muhammudu Buhari during a dinner hosted in honour of the Presidential Election Legal Team held at State House, Abuja recently.
By Kayode Ajulo, PhD
It is now trite that Nigeria in recent times has been trailing through periods of insecurity of lives and property as well as flagrant disrespect for the rule of law, natural justice and human dignity. This fact has in recent months been unhappily emphasized by the startling events which have been occurring in this country. I shall not belabor the point but it will be unrealistic not to draw attention to the gruesome killings and kidnapping incidents in some parts of the Country including the southwest. It is pertinent to recall the gruesome murder of Olufunke Olakunrin, daughter of the Afenifere leader, Chief Reuben Fasoranti, who I share close affinity with, at Kajola, Odigbo Local Government Area of Ondo State who was alleged to have been murdered by some masked men. Also, the kidnapping of a serving judge of the Federal High Court, Akure, the kidnapping and killing of a senior lecturer of the Ondo State Unuversity of Technology, Okitipupa, Ondo State, and that of the mother in-law of a retired senior Army Officer and so many other instances that space would not permit me to mention.
It was on the heels of the above incidents and other insecurity situations in the South West that the Governors of the South-West States chose to constitute the “Àmòtẹ́kùn” idea to curb the spate of insecurity in their region and to guard the lives and property of all who are resident therein.
Soon after the news of the inauguration of the “Àmòtẹ́kùn” broke in print and electronic media, the “Federal Government” allegedly declared the security outfit as illegal.
It is against this backdrop that I am compelled to pensively and dispassionately analyze the legality or otherwise of the “Àmòtẹ́kùn” viz-a-viz the spate of insecurity in the South West in particular and Nigeria in general.
Introduction
It is important to start on the premise that the war against insecurity in Nigeria is not the sole responsibility of the government but also of the citizenry at large.
The central pillars of the Nigerian national security is the safeguard of Nigerian sovereignty and independence as well as the maintenance of the territorial integrity of the Nigerian State as contained in the 1999 Constitution (as amended).
Section 14(2) (b) of the Constitution states that:
“The security and welfare of the people shall be the primary purpose of any government; and the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.”
Essentially, the concern over the security of the state has remained the defining feature of any geopolitical state and its relations with the individuals in their interaction among themselves. It stands to reason therefore that any state which fails to ensure the security of its citizens is said to have failed completely and therefore faces great challenge in governance.
There is no gainsaying the fact that the state of insecurity in Nigeria is acutely worrisome and disturbing considering the high rate of killings, bombings, kidnappings, conflicts, wars, and clashes etc. in which innocent people fall to the guns and sundry weapons of criminals in the country today.
These have led to political, social and economic disruptions which in turn has contributed to the slow economic, social, religious and political development across the entire six geo-political zones of the country.
It is pertinent to bring to the fore the agitations by some governors in the North of the country to declare a State of Emergency on Security in their states. Needless to say, it is the variants of these agitations that have culminated in the establishment of the Western Nigeria Security Network, a.k.a Àmòtẹ́kùn by the Governors of the South-West States which concept was inaugurated on the 9th of January, 2020.
Legality or otherwise of the Àmòtẹ́kùn”
There is no gainsaying the fact that the upsurge in banditry, kidnapping and gruesome killing across the country is quite frightening. The general insecurity is indeed worrisome. While the Boko Haram issue can ve said to be “sui generis” i.e in a class of its own, which will therefore require a separate discourse, it is apparent that from Zamfara to Katsina, bandits are wrecking havoc on hapless citizens. In Zamfara State for instance, over 8,000 women have been made widows by the bandits while over 16,000 children have become orphans as a result of these insurgencies.
Similarly, over 17 people were killed when the bandits invaded Sherere community in Katsina State. They also set ablaze many houses in the area. In Kaduna State, kidnappers have literally taken control of the Kaduna-Abuja Highway and rendered it almost impassable for motorists. Hence the imperative by the three tiers of Government to put in place, structures to fortify their territories against internal insurrections and insurgencies.
What is equally worrisome is the fact that the existing security framework has shown that there is no clear chain of command making it difficult for the security authorities to deal with the rising wave of insecurity.
Having established empirically the existence of a worrisome prevalent state of insecurity in the entire country, on the issue at hand, the perdurable question to ask is the legality or otherwise of the Àmòtẹ́kùn”.
Arguments against the Legality of the Outfit
The main argument against the legality of “Amotekun” is the erroneous belief that the establishment of a parallel outfit to carry out patrol with the regular police in Nigeria is a contravention of the provisions of the constitution. According to the proponents, 214(1) provides that: there shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.
It is also argued that since the Police is specifically established under Paragraph 45 of the Second Schedule of the Exclusive Legislative list, no state government has the right to legislate on police in the state.
In addition to the above, there are arguments in some quarters that vigilante groups are embryonic terrorist organizations who in record time would evolve to fight against the corporate existence of the Nation. Though one is not convinced, some have argued that the Boko Haram might once have been set up as a vigilante group and have called our attention to the nightmarish monstrosity it has since become.
Arguments in Support of the Legality of the Outfit
Having stated that the focal point of the arguments in support of the illegality of the “Amotekun” and other so called pseudo security outfits is that the establishment of parallel outfits to carry out patrol with the regular police in Nigeria is a contravention of the provisions of the constitution, conversely arguments in support of the legality of the “Amotekun” have also been canvassed to insist that the duties of the concept is not policing properly so called. It is also argued that the outfit should not be confused as forming a parallel regional Police side by side the Federal Police Force. That they are designed to work with the Police, not as an alternative, but as part of the tools to be used by the regular Police to provide a better and more effective security to the region.
Another argument canvassed in support of the concept is that the duty of protection of lives and property is not the exclusive duty of the police. That there is no section of the Constitution nor of the Police Act that prohibits a citizen from being vigilant to protect his life or property either personally or together with other citizens. The provisions of section 275 of the Criminal Code has been referred to in support of the argument canvassed which provides for the right of a citizen to prevent and apprehend any person who is committing or who is about to breach the peace.
Furthermore, in the light of the imminent fear of possibly being the next victim, some proponents have argued that it is high time the Citizens of the Country took the bull by the horn and defended themselves against these hoodlums and killers. Our penal laws justify the use of reasonable amount of force in defence of self against imminent threat of violence. See Section 32(3) of the Criminal Code and Section 65 of the Penal Code, Akpan v State (1994) 9 NWLR (pt. 368) pg 347.
The Imperative of Community-Oriented Police
All over the world, in the face of the police inability to stem surging crime waves, community members are turning from formal law enforcement agents to various self-help initiatives and this situation is not peculiar to Nigeria. For example in France, vigilante groups were sponsored by the semi-fascist National Front and were usually patronized by poorer people who were attracted to this alternative because of the prohibitive cost of insurance and private security. There are also reports that in the United State, private security is twice the official police force. Similarly, the United Nation Conventions have encouraged community-oriented policing among member-states.
Similarly the Department for International Development (DIFD) has prescribed policies and technical guidelines on the assistance to building effective and democratic police services in developing countries.
In different part of Nigeria where the police have been found wanting in their responsibility of maintaining law and order, local vigilante groups have often come to the rescue of members of the public.
It is pertinent to recall that sometime ago in Lagos State, the Oodua Peoples Congress (OPC) had to take charge of policing the state when the state was under the siege of robbers. Similarly, in the Southern Part of Nigeria, the Bakassi boys took charge of security matters in the various Southern states.
It suffices to also note the activities of the Civilian Joint Task Force and Hisbah Police in the Northern Parts of the Country.
Moreso, we have the forest guards in every state and they are usually empowered to arrest and prosecute any perpetrator. They are empowered to prevent poaching, fire and to protect endangered animals. The forest guard laws are State laws which implies that state laws permit legislation on security and it is important to point out the fact that most violence such as kidnapping are perpetrated in the forests.
Whereas it is clear that the efficiency of the Nigeria Police is still a far cry from desired, Community policing becomes very essential which concept is based on police officers and private citizens working together in creative ways to help solve contemporary community problems.
Recommendations and Conclusion
Having established the necessity of a strategy for encouraging the public to act as partners with the police in preventing and managing crime as well as other aspects of security and order based on the needs of the community it is advised that enabling laws be placed to put up an apparatus that will allow for a community-oriented policing.
In order not to throw out the baby with the bath water, it must be stressed that instead of banning any of these established security groups such as Amotekun, Civilian Joint Task Force, Hishba and others, their rough edges must be trimmed and their functions must be explicitly delineated.
To the extent that the concept of Amotekun is fundamentally to create security awareness and intelligence gathering, it is my considered opinion that no law prohibits its establishment; that indeed the security situation in the South West makes its creation inevitable.
However, it is important that a proper law, which must of course take cognisance of existing laws, (not by executive action of governors), be put in place by the Legislature of the sponsoring states which would in turn be enshrined in our jurisprudence for the Western Nigeria Security Network, the Amotekun, (perhaps registrable under the CAMA?) which would be ceremonially signed “into law” by the Governors of the Sponsoring States to define the scope and limit of its operation and all other matters incidental to it.
Having stated the above, one cannot but concede that the Honourable Attorney General of the Federation, Alhaji Abubakar Malami, SAN, who I have tremendous respect for, as the Chief Law Officer of the Federation has the primary duty of advising the Federal Government on the position of the Law on any legal issue and I would therefore not hesitate to state that the statement of a media aide, Umar Jibrilu Gwandu, credited to the Attorney General of the Federation, declaring the Amotekun initiative as illegal is with respect, merely an expression and at best an opinion/advice in line of his duty as the Advisor of the Federation however, there are steps to take and procedures to follow if the Federal Government seeks to outlaw or proscribe a body, a group or an organization. A case in point is the proscription of the Indigenous People of Biafra.
By our laws, the Federal Government had to approach the court of Law to obtain an Order proscribing the group before the proscription can be gazetted as law to take legal effect.
Furthermore, I am not unmindful of the fact that the Federal Government seems to condone the Kano State Hisbah Police, the North East Civilian Joint Task Force and Lagos State Neighbourhood Watch. I am pretty certain that those bodies would have taken certain legal steps that are yet to be taken by the sponsors of the WNSN. I will therefore encourage them to exploit all means, legal and political to resolve what may appear to be an impasse as it affects this much needed initiative.
In conclusion, as a front-row stakeholder of the peaceful co-existence of the realm, I maintain that from whichever angle one looks at it, one point that stands out is the fact that the duty to tackle insecurity in Nigeria is collegial and Amotekun is patently a child of necessity and one of the panacea to this security malaise.
o the uninitiated and non-Yorubas, Amotekun concept, in time immemorial, has been with the Yorubas. Amotekun is our totem, as it symbolizes our physical strength, innate tenacity, assured faith, our unquenchable sturdiness, our organic intelligence, our beauty, our sense of independence, our leadership quality, our steadfastness, swiftness, gracefulness and a demonstration of Yoruba mystique. It is therefore not a new concept but a necessity to be invoked and re-inaugurated to contained our new security challenge as a nation.
It is an initiative of which all Yorubas, irrespective of the side of the divide, seem to agree. It is perhaps the first issue in a long time to have enjoyed that status. The Federal Government therefore must be cautiously constrained not to do anything that would rupture or jeopardize the existing fragile understanding between the component units of the Nigerian State of the South-West Region and other regions
