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The Governors of the six south-western (SW) states – Lagos, Ogun, Oyo, Osun, Ondo and Ekiti – on January 9, 2020 launched the ‘Amotekun’ security initiative, although the personnel recruitment and deployment was to follow. Despite being lauded by some prominent political and legal minds in the country, the initiative became a subject of controversy when a statement attributed to the Minister of Justice and Attorney General of the Federation (AGF), Abubakar Malami, SAN, described the initiative as “illegal.”
    
Efforts to address the situation resulted in the January 23 meeting between the Vice President, Yemi Osinbajo; the Governors of the states in question; the Inspector General of Police (IGP), Mohammed Adamu; and the AGF. Reports from the meeting suggest the Federal Government and the states appeared to have reached a resolution on the initiative, subject to the necessary legal framework being put in place by each of the states to give it legal backing. The AGF has subsequently denied the media reports that he said Amotekun was illegal.

As rightly stated by many legal practitioners, a valid declaration on the legality of the initiative can only be made by the courts. But it would seem the Federal Government has agreed to the proponents’ narrative of the ‘necessity’ of the initiative. The resolution of the meeting with the Vice President suggests that Amotekun can operate – with a legal framework – as a state initiative. But as of now, the country has been denied the opportunity to test the constitutionality of Amotekun.

The Office of the Vice President, after the meeting with the Governors, released a statement in which it acknowledged the need for all hands to be on deck in addressing the security concerns facing the country. The statement said the stakeholders agreed that “the structure of the Amotekun should align with the community policing strategy of the Federal Government.”

The resolution was a positive step. This is because the many advocacies to test the legality of Amotekun in the courts might not yield the result that the proponents of the initiative have confidently postulated. And, it is safe to say that a negative judicial decision on Amotekun would further reduce the already waning public confidence in the judiciary.

In interpreting the provisions of the Constitution, the Supreme Court has on numerous occasions enunciated, as part of the fundamental principles, the need to give an interpretation that serves the interest of the Constitution, carries out its objects and purposes in the best way possible and gives effect to the intention of the framers. Thus, all the relevant provisions of the Constitution must be read together, and not disjointly, in determining the constitutionality of an act or a thing.

Part I of the Constitution, particularly sections 2 and 3 of the Constitution, establishes the Sovereign State known as the Federal Republic of Nigeria as a Federation consisting 36 States, a Federal Capital Territory and 768 local government areas (LGAs). Part II sets out the powers of the different federating units created in Part I (Federal, State and Local Governments), including their limitations in three core functions: legislative, executive and judicial.

Chapter VI of the Constitution creates the different parts making up the executive. Part 1 creates the Federal Executive and establishes certain Federal Executive Bodies and the Public Service of the Federation, while Part II creates the State Executive and establishes certain State Executive Bodies and the Public Service of the States. It is under Part III that the Constitution creates the Nigerian Police Force and the Armed Forces of the Federation; and makes provisions for National Population Census and political parties.

Section 214 clearly states that there shall be only one police force and “no other police force shall be established for the Federation or any part thereof.” The Constitution, however, permits the National Assembly to make provisions for “branches of the Nigeria Police Force forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways and airfields.”

It is important to note that the Constitution does not expressly create all the bodies or roles or powers that can exist. It merely creates the blueprint by which other bodies can be established. Thus, a body or organization does not become illegal by the mere fact that it was not expressly created by the Constitution, to the extent it does not violate any constitutional provision.

The Constitution, however, does stipulate which of the federating units can properly legislate over an issue through the exclusive and concurrent legislative lists contained in the second schedule. Item 45 of the exclusive legislative list (which has the subject-matters that only the National Assembly can legislate upon) is “Police and other government security services established by law.”

The legality and constitutionality of Amotekun would, therefore, depend on whether the interpretation of its powers and role falls within “government security services” and thus whether the law empowering it was made by the state houses of assembly or the National Assembly.

It is clear that the intent of the Constitution, in its current state, is to put the subject-matter of security (both internal and against external aggression) within the purview of the Federal Government, both in the exercise of executive and legislative powers. But therein lies the rub. Some would argue, including myself, that part of the reason for the failure of the security infrastructure in Nigeria stems from the central-government-control structure of policing, whereas most security challenges are local.

The Constitution creates both the office of the IGP and Commissioners of Police (CP). While the President – or a Minister he authorizes – may give the IGP lawful directions with respect to maintaining and securing public safety and public order, the Governor of a state may do the same with respect to the CP in the state subject to the caveat that the CP, may before complying with the directions given by the Governor, request that the matter be referred to the President or designated Minister.

The federal structure for policing/internal security is clearly not effective. The Nigeria Police Force itself has had to ingeniously introduce ‘community policing’— a concept whereby the community members (private citizens) are invited to work together with the police to tackle the contemporary security challenges facing that community. However, the distrust between the police and the citizens has not made collaboration with the law enforcement community as successful as it should be.

What we have thus had are attempts to correct this constitutional anomaly. In that process, we have edged close to the constitutional boundaries and are now slipping into grey areas. The Civilian Joint Task Force, Lagos Neighborhood Watch, the Hisbah Police and now Amotekun have all been responses to the ineffectiveness of the federal structure of policing created by our Constitution.

Faced by security challenges in their states, it is for the above reason that the SW Governors have established Amotekun. The Governor of Ekiti State, Kayode Fayemi, described the initiative as a community policing response to the security challenges facing the region. He stated that it is meant to work in collaboration with the federal security agencies.

Nevertheless, the constitutionality of Amotekun is not as clear-cut as its supporters seem to suggest. The Constitution does not recognize regional governments; thus, each SW state is being encouraged to legislate to create an enabling law setting out the framework for Amotekun. But do the state houses of assembly have the constitutional powers to legislate to provide any form of security support service to the Nigeria Police Force or other security agencies? I do believe that we are skirting around constitutional boundaries.  

The existence of similar security apparatuses in other regions of the country is not proof of their constitutional validity. The Hisbah Police, which was created in Kano State through the Kano State Hisbah Law No 4 of 2003, received similar attacks over its constitutionality. Despite a suit filed by the Kano State Government when the Federal Government banned Hisbah and arrested its commander-general and his deputy, there is no judicial pronouncement on the constitutionality of such an outfit.  

Furthermore, the great necessity, which appears to inform the creation of Amotekun and other similar initiatives in view of the insecurity in the country, is a valid and very important consideration; it does not, however, invalidate the question of their legality under the Constitution.

One of the great achievements of Amotekun and the conversations surrounding it is that it has exposed, among other things, the inefficiencies and failings of the Nigerian police and its central structure. Amotekun has also brought to the fore in stronger terms than before, the need for local policing. We, thus, have a duty to ensure that we are not short-sighted by focusing alone on the implementation of the Amotekun initiative. We must continue the conversation with respect to restructuring the Nigerian federal system and take the conversation to the right quarters until we get legislative action.

The Nigerian internal security apparatus should be constitutionally decentralized. Amotekun represents the urgent cry to cease politicizing important issues. Amotekun is more than a regional or political solution to insecurity; it is an acknowledgment that the various constituents that make up Nigeria are tired of paying lip service to the need for restructuring the country.

Amotekun represents the powers that state governments and local governments have in driving the restructuring agenda the country needs should they decide to shun personal, political and ethnic agendas, and truly step up to their constitutional duty of securing the welfare and security of the people.

A Financial Nigeria columnist, Funmilayo Odude is a Lagos-based legal practitioner, and a public affairs analyst.