Nigeria as a constitutional democracy guarantees freedom of expression consistent with the prevailing provisions of our laws. For this reason, citizens are free to hold any opinion on any position taken by government. Unfortunately, most of those who responded to the statement by the Attorney General of the Federation on the Government’s stance on Ametokum missed the point. The first thing to bear in mind is as the fact that Section 150 (1) of the constitution appoints the Attorney General of the Federation and Minister of Justice as the Chief Law Officer of the Federation of Nigeria. Consistent with this position, the Attorney General of the Federation is vested with the constitutional authority to express the position of the government on matters affecting national interest, including the formation of Ametokun or any other issue of national importance that impacts on the security and defence of the country, amongst others. The Attorney General of the Federation has conveyed the legal position of the federal government on the matter. The position of the federal government is simply on the legality of the security outfit. Amotekun is not supported by any known law. But all paraphernalia for its operation are already in place. Who will legally be responsible for its excesses and liability? Who commands and directs the regional operations of the outfit? Are we establishing the office of a Regional Commander in chief?
There is a difference between an individual’s ability to protect his/her life and property and the formation of a security outfit to do the same on regional as against state basis. Any so-called security outfit, Amotekun, included, must be regulated by law. Its command, control and operational structure must abide by the express provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and other enabling federal laws in this regard. Anything short of that renders the outfit illegal. The constitution is explicit on the role of the Army, Navy, Air Force and other legally recognised paramilitary institutions in the maintenance of security, order and defence of Nigeria. Sections 214 and 217 uphold the constitutionality of the Police, the Armed Forces and federal paramilitary agencies in regard to their role in the security and defence of Nigeria. Exclusivity of their role is incontrovertible. Additionally, Items 17 and 45 of the Second Schedule of the Constitution lend credence to the same position. This is the thrust of the basis of legality against which the establishment of Ametokun should be tested.
The supremacy of the constitution over every other law is an established principle in our jurisprudence. Section 1 of the constitution affirms this supremacy. Interestingly, Section 4 (1) of the Constitution vests the exclusivity of law-making for the peace, order and good government of Nigeria in the National Assembly. This means that all matters regarding the security and defence of Nigeria in the exclusive legislative list are within the preserve of the National Assembly. Anecdotally, Section 4 (7) of the same constitution empowers the state houses of assembly to also make laws for the peace, order and good government of their respective state. However, it is poignant to point out that the same sub-section of section 4 the constitution prohibits state houses of assembly from making laws on matters listed in the Exclusive Legislative List. This also raises a serious question mark on the constitutional legality of Amotekun as a regional security and paramilitary outfit.
The legislative powers of a state house of assembly are only limited to the state in question. Such laws cannot constitutionally operate interstate. Section 33 guarantees to the citizens the right to life. This includes taking lawful and reasonable steps to protect such life. The federal government supports that to the extent the act of self-defence is subject to the constitution and laws of Nigeria. Where states or even individuals wish to associate by forming a security agency, network, and institution of organisation or by whatever name it is called in order to aid in securing Nigeria, they should first and foremost take the necessary steps to comply with the extant provisions of the constitution and the relevant laws permitting the establishment of such security outfits.
Importantly, such citizen or community based security outfits must not operate outside the law and should also be superintended over by the Army, Air Force, Navy, the Police and other federal paramilitary agencies, as the case may be. Such formed security outfits cannot have a parallel command, control and operational structures working outside the constitution and the laws of the Federal Republic of Nigeria. There has also been a misleading discourse on the role of state governors as Chief Security Officers in their respective states. By section 176 (2) of the constitution governors are the chief executives of their respect states. However, be that as it may, it is equally important to put their “security” role in the context of the law and not out of it. Section 215 (4) of the Constitution is crystal clear on this point. Sub-section (4) provides: “Subject to the provisions of this section, the governor of a state or such commissioner of the government of the state as he may authorise in that behalf, may give to the commissioner of police of that state such lawful directions with respect to the maintenance and securing of public safety and public order within the state as he may consider necessary, and the commissioner of police shall comply with those directions or cause them to be complied with: By virtue of this provision, the role of governors, if they choose to give such lawful instructions, will certainly complement the overall security and defence architecture of the federation.
This is even a desirable approach to augment the security situation in the country, which taken as a whole is consistent with the laws of the Nigeria. To conclude it is worth noting sections 5 (3) (a) and 227 of the Constitution. The former section prohibits states from taking measures that will impede federal executive authority. Interestingly, the latter provision states: “No association shall retain, organise, train or equip any person or group of persons for the purpose of enabling them to be employed for the use or display of physical force or coercion in promoting any political objective or interest or in such manner as to arouse reasonable apprehension that they are organised and trained or equipped for that purpose.” This omnibus provision categorically brings into question the purpose of Amotekun.
Saulawa teaches Law at Umaru Musa Yar’Adua University (UMYU), Katsina