WHY AMOTEKUN IS CONSTITUTIONALLY COMMENDABLE

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Amotekun, Constitutionality, Branham PaulPipAr Chima

By Branham PaulPipAr Chima

The people living in the South-Western region of Nigeria have cried so much because of the spate of kidnapping, armed robbery and other security concerns that have afflicted them of recent.

Some of these acts have been reflected in the following incidences:

The kidnap of the former secretary to the government of the federation, Olu Falae, by herdsmen right on his farm in Akure”;

The narration of Ondo State governor, Rotimi Akeredolu, of his encounter with armed men who attempted to halt his convoy and attack him, an attack he said he managed to escape;

The murder of the daughter of an Afenifere chieftain, Reuben Fasoranti, by suspected herdsmen along Ore road was painful enough. Olufunke Olakurin, was shot while on her way to Lagos by masked hoodlums after a visit to her father in Akure on June 23, 2019;

These heinous acts and more have led the six governors of the south western states which include: Lagos, Ogun, Oyo, Ondo, Osun, and Ekiti to form a security outfit known as the Amotekun.

The decision by the governors of the south western states to initiate “Operation Amotekun” was reached in Ibadan in June 2019 at a regional security summit in Ibadan. As stated earlier, the summit was a response to the exacerbating security situation in the region. The impression was that Amotekun would be a security outfit that will complement and aid the Nigerian Police in the upkeep of security in the region.

However, with the introduction of the Amotekun, issues have arisen regarding its constitutionality.

I intend to argue here that is constitutional.

The laws which are relevant to properly dissect this issue include:

The Preamble to the Constitution of the Federal Republic of Nigeria 1999 (hereinafter, described as CFRN 1999) which provides, “And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country”;

Section 5(2)(b) of the CFRN 1999 provides inter alia that a state governor’s power “shall extend to the execution and maintenance of this Constitution”;

Section 5(3) of the CFRN 1999 provides that “the executive powers vested in a State under subsection (2) of this section shall be so exercised as not to: (a) impede or prejudice the exercise of the executive powers of the Federation;”

Section 13 of the CFRN 1999 provides that “It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution.”

Section 14(2)(b) of the CFRN 1999 provides that “the security and welfare of the people shall be the primary purpose of government”;

Section 214(1) of the CFRN 1999 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.”;

Item 45 of the Exclusive Legislative List has it that the “Police and other government security services established by law.”

Section 20 of the ACJA 2015 provides that “A private person may arrest a suspect in Nigeria who in his presence commits an offence, or whom he reasonably suspects of having committed an offence for which the police is entitled to arrest without a warrant.”;

It is to be noticed that the backbone of every law is common sense. When the constitution is to be interpreted, regard is to be paid to common sense, and not an odd interpretation of the provisions of the constitution that will lead to absurdity or what the drafters of the constitution never intended. Common sense is reason, and hence laws are and must be reasonable.

The concept of paying homage to common sense when interpreting the provisions of the constitution has been given judicial approval. First, in the case of INEC & ORS. v. HABU HASHIDU & ORS. (2008) [1], the Court of Appeal stated that “The Court is bound to apply COMMON SENSE in the construction of statute”

Further, in MBA v. MBA (2018) [2], the Supreme Court stated: “Where facts and circumstances are presented to the Court from which the Court exercises its discretion, it should be guided by law, justice and COMMON SENSE.”

From the preceding cases, and even without them, common sense is a phenomenon so vital and which must be placed and used as a barometer in the interpretation of a statute. This is because, a law that is not in accord with common sense is not a reasonable law and does not accord with the people.

Common sense is what most people can relate to. For instance, when a landlord of a house puts 7pm as the time for the compound’s gate to be locked and anyone who comes after will not enter, such landlord must amended the rule to suit the prevailing circumstance in the event that there is always a “Hold-Up” on the path to the house. This is simply commonsensical.

The constitution of the Federal Republic of Nigeria is the grundnorm of all laws that govern the people of Nigeria. It is such that if any other law contravenes it, that other law must be void. Also, if the Constitution does not expressly or clandestinely prohibits an act, it is wrong for any other law to do so; every law or act must be gauged with the provisions of the Constitution.

This position was stated in The Federal Republic of Nigeria v. George Osahon & Ors (2006), where Alfa Belgore JSC (as he then was) stated, “Constitution of any country is the EMBODIMENT of what a people desire to be their guiding light in governance, their supreme law, FOUNTAIN of all their laws. As such, Constitution is not at any given situation expected to or presumed to contain ambiguity. All its provisions must be given meaning and interpretation even with the imperfection of the legal draftsman. COMMON SENSE must be applied to give meaning to all its sections or articles.”

In the CFRN 1999 are contained some provisions that deal with the subject matter of this write-up.

Section 14(2b) of the CFRN 1999 is to the effect that “the SECURITY and WELFARE of the people shall be the PRIMARY purpose of government”.

From this preceding provision, it is fulgent that the primary purpose why the government exists and what government officials must do, is to provide security and uplift the welfare of the citizens. Hence, any government that is not doing this or making efforts to achieve this, is a failed government; is a government that does not care for the welfare of his citizenry, and thus neglects the wellbeing of its citizenry.

To further buttress the role, Section 13 of the CFRN 1999 is to the effect that “It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution”.

Now, sections 13 and 14 provided so far are in the same Chapter. Hence, the combined reading of both sections is to the effect that any government whether state or federal, any authority whatsoever, exercising legislative, judicial or executive powers is to provide security and uplift the welfare of the citizenry. For the sake of this write-up, each of the governors of the several south western states is to comply with the provisions of the Constitution and thus provide security and uplift the welfare of the people living in their respective states.

As stated earlier, there have been hitches in the security management of the south western region and this has led to many avoidable killings. The Nigerian Police are working but it seems like their efforts are not enough to curb the spreading menace. These governors listened to the cries of the people they govern and have decided to assist and help the police in the curbing of this menace.

Since this is a matter of security, will it be wrong for the governors to protect the citizens living in their states? Are the governors not carrying out the instruction of sections 13 and 14 of the CFRN 1999? Should the governors fold their hands and watch the menace continue? Common sense should tell us that it would be wrong for the governors not to complement the activities of the Police by establishing the Amotekun.

The Amotekun is like every other vigilante group. It is not established as a state or regional police but rather to complement the Nigerian Police. It is like a man reporting to the police of a suspicious criminal. Should then we say that the man’s act of reporting the crime to the police is unconstitutional? Goodness forbid!

The Amotekun has not come out to say that they want to replace the Nigerian Police or carry out fully the duties of the police. The Amotekun has not come out to say that they will prosecute offenders or open up a prison where they will put offenders or suspects. These are the job of the Nigerian Police and the Amotekun cannot venture into them.

It is well known that the Constitution recognises the Nigerian Police as the only police force that is to be in existence. Section 214(1) of the CFRN 1999, is to the effect 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.”

In essence, the arresting of suspects by the Amotekun is not to be seen as problematic in any way because even the Admistration of Criminal Justice Act 2015 grants private parties the power to arrest by virtue of section 20 which reads: “A private person may arrest a suspect in Nigeria who in his presence commits an offence, or whom he reasonably suspects of having committed an offence for which the police is entitled to arrest without a warrant”.

If private persons can arrest suspects, why not private persons in group, like the Amotekun? Any contrary opinion will be lacking of common sense. The Amotekun does not and will not impede the workings of the Nigerian Police.

The preamble of the Constitution is to serve as a guiding light when interpreting the Constitution; and the preamble of the Nigerian Constitution provides, inter alia, “to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country,”

Here is the word “welfare” repeated again. The welfare of the citizens is so paramount for it to be overlooked. In OGBONNA v. THE A.G OF IMO STATE & ORS (1992) referencing the Black’s Law Dictionary 6th Edition, the Court stated, the preamble is “a clause at the beginning of a Constitution or Statute explanatory of the reasons for its enactment and the objects sought to be accomplished.”

From the constitutional and statutory provisions provided above, it is obvious that the Amotekun outfit is not unconstitutional but rather a call for the securing of the welfare of the people of the South-Western states of Nigeria. The governors ought to be applauded, instead of the rising talks of unconstitutionality. As the constitution has shown, the welfare and security of the people is paramount and is even placed as the top primary duty of the government whether state or federal.

It is a welcome development that the federal government has seen reason to work with the six state governments that initiated Amotekun, and the buck has now been passed on the governors of these states to provide the legal basis for the operation of their laudable initiative.

Chima writes in from Faculty of Law, University of Benin.

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