LEGAL IDEAS FORUM

Contemporary Insecurity in Nigeria’s Federation: A Review of the Constitutional Powers of the State Governor as the Chief Security officer of his State.

It is not in dispute that an elected Governor of a State has the constitutional responsibility to guarantee the security of lives and properties within his jurisdiction. In justifying this heavy responsibility as the Chief Security officers of their States most Governors appear to have played viable role in furnishing Police Commands and other sister agencies stationed within their states with vehicles and other security gadgets needed to facilitate their work. It seems despite these gestures insecurity appears to be at a gigantic scale. Thus, Many Governors under regional umbrella are now setting up security apparatus like the Amatekun in South-West Nigeria and Ebubeagu of the South Eastern Nigeria to challenge the present security statusquo.The Federal Government appears to be in conflict with this security position taken so far by the Federating Units.Infact the recent communique issued by the Southern Governors calling on the Federal Government to address the menace of insecurity is not out of place.

In the light of the above, one sole issue that calls for determination is whether a sitting State Governor is truly the Defacto and Dejure Chief Security officer of his State. Since security power has been emphasized to be a constitutional one the word “Defacto” and “Dejure” must be treated conjunctively and not disjunctively. According to the Black’s Law Dictionary (9th Edition) @ page 479 the word “Defacto” means: “Actual; existing in fact; having effect eventhough not formally or legally recognized.” Same Black’s Law Dictionary (Supra) @ page 491 construed the word “Dejure” to mean: “Existing by right according to law”. For the purpose doing justice to this sole issue we shall resort to the Constitution of the Federal Republic of Nigeria, (as amended), 1999 (Hereinafter referred to CFRN or Constitution) and Judicial authorities too.

With respect to the control of police by the Governor of a State the provision of Section 215(4) of the CFRN provided as follows: “Subject to the provision of this section, the Governor of a state or Such Commissioner of the Government of the State as he may authorize 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 direction or cause them to comply with. Provided that before carrying out such direction under the foregoing provisions of this subsection the Commissioner of Police may request that the matter be referred to the President or such Minister of the Government of the Federation as may be authorized in that behalf by the President for his directions.”(Underline Mine)

This provision appears to have been leaned upon by the Federal Government and the Commissioner of Police to Challenge the position of the Governor of the State as the Dejure and Defacto Chief Security Officer of his State. The CFRN appears to hamstring the Court to determine questions of refusal of permission by the President to enforce such directives by the Governor. Since refusal by the President not to enforce the directives of the Governor of a State is a direction itself. According to 215(5) of the CFRN provided as follows: “The question whether any, and if so what, direction have been given under this section shall not be inquired in any Court.” Whereas the said section 215(5) is in conflict with section 6(6) (b) of the CFRN which preclude the ousting of the jurisdiction of the Court; It seems to assist the growing trend that where a House of Assembly of a State enacts a law inconsistent with the wish of the President albeit lawfully its enforcement by the police becomes very difficult.

Perhaps it seems this appears to be the reason behind non-enforcement Anti-Open Grazing Laws enacted by Sub-nationals like Benue State in order to combat the onslaught of some Fulani Herders. Although s.195(1) of the CFRN provided for the office of the Attorney General and Commissioner of Justice as the Chief Law Officer of the State and section 211(1) of the CFRN gives the Attorney General of the State Power to prosecute for criminal actions initiated in the name of his State and also subject the powers of the Police to prosecute for crime initiated under a State law to the Constitutional Powers of the Attorney General of the State[see:FRN v Osahon [2006] 5 NWLR (Pt. 973)361 SC].It seems where the police fails to live up to their statutory obligations like effecting of arrest and carrying out requisite investigations renders such state law impotent and also appears to weaken the capacity of the concerned State Attorney General to exercise his Constitutional Powers for the purpose of that law.

More worrisome this unlimited powers so granted by the President has been misconceived, misinterpreted and carried too far so that it appears to be an instrument to override the judicial process.Afterall, the Police is the major Law enforcing institution in Nigeria. Where they refuse to enforce the judgment of a Court, the judgment is itself more or less is worthless.Hencing the rising wave of disobedience to Court order especially in the present democratic regime. Section 308 of the CFRN which granted immunity to the President from arrest or arraignment or even summon from any Court of Law irrespective of the culpability of his crime while still in Office appears to have compounded the rascality of the exercise of executive powers by the Presidency in so far police control is concerned.

The Said section 308 reads: “308(1) Notwithstanding anything to the contrary in this Constitution, but subject to sub-section 2 of this section:- (a) no criminal or civil proceeding shall be instituted or continued against a person to this sections during his period of office; (b) a person to whom this office apply shall not be arrested or imprisoned during that period either on pursuance of the process of any court or otherwise; and (c) no process requiring and compelling the appearance of a person to whom this section applies, shall be applied for or issued. Provided that in ascertaining any period of limitation has expired for the purpose of any proceedings against a person to whom this section applies, no account shall be taken of his period of office (2)The provision of subsection (1) of this section shall not apply to civil proceeding against a person to whom this section applies in his official capacity or to civil proceedings in which such a person is only a nominal party. (3)This section applies to a person holding the office of the President, Vice-President, Governor or Deputy Governor; and the reference to this section to “period of office” is a reference to period during which the person holding such office is required to perform the functions of the office.”

The above provision fixes the President in a position where the police now has to be abused by the Federal Government not just to the detriment of Federating states themselves but also to the judiciary which can best be described as the beacon of human liberty without remedy. This is not consistent with best international practices. In United States Executive Privilege which is to an extent the equivalent of Immunity clause in Nigeria has not been allowed to override judicial process. In United States v. Nixon 418 U 683 S.U. 3990. The US Supreme Court said: “The Supreme Court does have the final voice in the determining constitutional questions, not even the President of the United States is completely above the Law; and the President cannot use executive privilege as an excuse to withhold evidences that is demosratably relevant in a criminal trial.”

Contrary to popular opinion what the Constitution envisage is not a Federal Controlled Police but a national police for the enforcement of the laws of the various levels of government. Section 214 (1) & (2) of the Consttitution reads: “214(1) There shall be a police force for Nigeria, which shall be known as the Nigerian Police Force, and subject to the provisions of this section no other police force shall be established for the federation or any part thereof (Underline Mine). (2)Subject to the provision of this Constitution- (a) the Nigerian Police Force shall be organized and administered in accordance with such provisions as may prescribe by an act of the National Assembly; (b) the members of the Nigerian Police Force shall have such powers and duties as may be conferred upon them by law; (c) the National Assembly may make provision for branches of the Nigerian Police Force forming part of the armed forces of the federation or for the protection of habours, waterways, railways and air fields.”

A close reading of section 214(2) (b) of the CFRN restricts the police to powers and duties as may be conferred upon them by law. The Law made by a State House of Assembly is operative for this purpose. Although, Section 215(1) (a) & (b) of the CFRN vests in the President the power to appoint the Inspector General of Police and in the Police Service Commission to appoint Police Commissioner for the State respectively; it does not preclude the State Governor from protecting lives and properties within his state. Again, Item 45 of the part 1 of the second schedule (Excusive) list vest in the National Assembly of the Federation exclusive powers to make laws on matters bordering on police and other government security purposes established by law. Item 2 of same provision also vests in the National Assembly Powers to legislate on Arms, ammunition and explosives. Whereas these provisions appear to weaken the capacity of the State in legislating for police it does not seem to bar the State from making laws that will advance the security of the state within its legislative competence.

The President can only override the Governor of a State for the purpose of enforcing Federal Law only when there is inconsistency between a Federal Law and a State Law or where a Federal law is intended by the draftsmen to cover the entire Federation otherwise known as the doctrine of covering the field. It does not operate where there is no inconsistency between the said Federal Law and the State Law even where it seems different result would be achieved from its enforcement. Ekpe JCA in CGG v Etuk [2003] 42 WRN @ Page 91 quoting Per Idigbe JSC in A-G Ogun State v. A.G. Federation(1982) 3 NCLR 161 with approval said: “Where under a Federal set up, both the Federal and the State Legislatures, each being empowered by the Constitution so to do, legislate on the same subject, then if it appears from the provisions of the Federal law on the subject of the Federal legislatures intends to cover the entire field of the subject matter and thus provide what the law on the subject should be for the entire Federation, the State Law on the subject is inconsistent with the Federal Law and the latter must prevail and the State Law on the subject is invalid. If no general intention to cover the entire field on the subject can be gathered from the Federal Law, then the mere concurrence of the two laws (i.e. the federal and the state laws) on the subject is no eo ipso (sic) an inconsistency although the detailed rules in the provisions of both laws may lead to different results on the same facts.”

Again S.4(5) of the CFRN provided that if any law enacted by the House of Assembly of a State is Inconsistent with any Law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void. It follows that where the directive of the Governor of a State is made pursuant to any law that appears not to offend this provision the President is incapacitated to friction the Governor of a State for the purpose of enforcing such law.

In construing the Supremacy of the Constitution for the purpose of the position of the Governor as the Chief Security Officer of his State every provisions of the Constitution must be give a combine effect. In construing the Supremacy of the CFRN as to this regard the Supreme Court (Per Katsina-Alu JSC) in Action Congress v INEC (2007)12 NWLR (Pt. 1048) @ 259 Paragraphs B-D said: “It is a settled principle that a provision of the Constitution or a Statue should not be interpreted in isolation but rather in the context of the Constitution as a whole.” Similarly, the Supreme Court in Ellelu-Habeeb & Anor.v AG Federation (2012) 13 NWLR (Pt.1318) @ page 520-521 said: “Each provision of the Constitution is supreme and thus forming part of the law. A section of the Constitution must not be read against the background of the other sections to achieve a harmonious whole.”

S.5 (2) of the CFRN vests the power of enforcement of all laws made by the State in the Governor (not President). The said section reads: “5(2) Subject to the provisions of this Constitution the, the executive Powers of a State- (a)shall be vested in the Governor of the State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or Officers in the Public service of that State; and (b)shall extend to the execution and maintenance of this Constitution all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”(Underline Mine)

Same Powers appear to be vested in the President under section 5(1) (a) @(b) for the purpose of Federal Laws. Whereas section 215 of the CFRN appears to donate unlimited powers to the President insofar Police control is concerned it limited the Powers of the Governors in control of police to what the President is willing to donate as permission insofar issuing of Command is concerned. It does not follow to limit the capacity of the Governor to enforce the laws of his state. The envisage of the CFRN to our view is to prevent a situation where the Governor may give contentious directive that may appear to prejudice the standing of the President in the Sovereign standing of the Federation.

We argue that since the Powers of the Police has being so detailed in the Police Act which boils down to enforcement of laws of the Country both at national and sub-national level and the only Command or directive a Governor of a state is allowed to dish out to the Commissioner of Police pursuant to s.215 of the CFRN stationed within his command is lawful directive the need for having regard to the permission of the Presidency is uncalled for.

After all, section 14(1) of the CFRN under the Fundamental Objectives and Directive Principle of State policy under Chapter 2 Provides as follows: “14-(1) The Federal Republic of Nigeria shall be a State base on the principle of democracy and social justice.(Underlined mine) (2)It is hereby, accordingly, declared that-(b) the security and welfare of the people shall be the primary purpose of government.”(Underline mine) For the purpose of defining the veracity of the word “state’’ as envisaged above, the Supreme Court in AG Ondo v AG Federation [2002] 9 NWLR (Pt. 772) @222 held that the word “state” in the context of this section includes Federal, State or and Local Goverments.Again

, S.214 (2) (b) of the CFRN provided that the members of the Nigerian Police Force shall have such powers and duties as may be conferred upon them by law (State Laws inclusive). Much as the Fundamental Objectives and Directive Principles of State Policy is non- justiciable pursuant to s.6 (6) (c) of the CFRN it is envisaged by the CFRN to be the socio-political mirror for any level of government in Nigeria in drafting public policies. It is the fundamental obligation of the Government. It follows that s.14 (2) (b) of the CFRN is morally binding on the Governor to protect the security and welfare of the people and legally binding when read with other enforceable part of the CFRN. It seems the position of the Governor as the Chief security Officer defacto and dejure of his State should naturally flow from this source. Though unfortunately the same Constitution made the enforceability of the provisions of the CFRN that falls under Fundamental Objectives and Directive Principle of the State policy when read in isolation to other enforceable part of the CFRN non-justiciable Yet in section 13 of the CFRN under Chapter II placed a compulsory obligation on the Governor to enforce the letters of section 14(2(b) which deals with the security of the people under him. The said section reads: ‘’It shall be the duty and responsibility of all organs of the government, and all authorities and persons, exercising legislative, executive or judicial powers to conform to, observe and apply the provisions of this chapter of this Constitution.’’

Under the rule of canon of interpretations plethora of judicial authorities hold the word “shall” to be Mandatory (see ICAN v. Attorney General of the Federation [2003] 42 [email protected] page 67 AC ).It follows that a Governor of state is under compulsion to guarantee the security of his State irrespective of the position taken by the President under section 215 of the CFRN pursuant to the powers conferred on him in the control of police. Infact when a communal reading is given to Chapter 2 (section 14) and section 5 of the CFRN which grants exclusive powers to the Governor of the State insofar State Laws are concerned independent of the President makes the section 14 justiciable.

The Supreme Court in A.G Ondo v A.G Federation &35 Ors [2002]9 NWLR (Pt. 772) said that Courts cannot enforce any provision of chapter 11 of the Constitution until the National Assembly has enacted specific laws for their enforcement as was done in respect of section 15(5 of the 1999 Constitution by the enactment of the Corrupt Practices and other Related Offences Act 2000.Similarly, the Court in FRN v Anache [see Unizik Law Journal vol 5 No:1 @Page 294.] held that s.6(6)(c) of the 1999 Constitution did not foreclose the justifiability of Chapter II in its entirety as the Constitution provided a leeway by the use of the words: ‘’except as otherwise provided by the Constitution’’ Again in NPP v Attorney General of the Federation [2000] 16 WRN [email protected] it was held when the chapter II of the Constitution are read with other enforceable part they are enforceable. For the purpose of lawful directive the Constitution under s.214(2) (b) provided that the members of the Nigerian Police Force shall have such powers and duties as may be conferred upon them by law(not law full directive).

Whereas the CFRN appears to subject directive of the Governor to the President under s.214 it seems to us for the purpose of enforcing the law validly made by the State House of Assembly such permission is not envisaged by the CFRN.Thus, the Appeal Court (Per Mbaba JCA) in MTN Communication Agency LTD v Abia State Govt [2006]1 NWLR (pt1494) @page 501 said: “A Commissioner of Police Carrying out duty purely in relation to the state matter cannot be regarded as the agency of the Federal Government.” It follows that the Governor is the Dejure and the Defacto Chief Security of his State.

Again, the Executive Governor of a State derives his constitutional Powers from the CFRN and not the President.Infact, S.5 (2) of the CFRN vests the power of enforcement of all laws made by the State in the Governor. The said section reads: “5(2) Subject to the provisions of this Constitution, the executive Powers of a State- (a)shall be vested in the Governor of the State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or Officers in the Public service of that State; and (b)shall extend to the execution and maintenance of this Constitution all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”(Underline Mine)

Consequently, it is not the envisage of the Constitution that the President of Nigeria can operate as an obstacle to the enforcement of the lawful directive(s) made by the Governor incidental to the laws of the State. Nigeria being a Federation, Federating units operate within their legislative competence independent of the other level of government. It also seems to be the reason why the Governor can prosecute through his Attorney General for the enforcement of the laws of the State without recourse to the permission of the Attorney General of the Federation.

The Commissioners of Police should learn to place their loyalty on the Constitution and not on the Federal Government in so far enforcement of Sub-national Laws are concerned. The Commissioner of Police is the agent of the Governor for the purpose of enforcing the laws of the State and the agent of the President for the purpose of enforcing Federal Laws. The CFRN does not envisages a situation where the Executive Powers of the State no matter the nature of the interpretation given to section 215(4) of the Constitution would be to subject the Governor’s directives pursuant to the Laws of the State to the permission of the President when combine effect are given to other sections of the Constitution that deals with the executive powers of the Governor.

We however, recommend that section 215(4) of the Constitution should be expunged, and more powers should be given to Governors with respect to the present existing Police structure in terms of deployment and appointment of the Commissioner of Police for their respective States. This, in our view would strengthen the position of the Executive Governor as the Dejure and Defacto Chief Security Officer of his state. It is unconstitutional to declare the Governor of a state subservient to the President in the enforcement of the laws of his state using the national police.

About the Author

Chike Henry Izuegbu Esq. is a Solicitor and Advocate of the Supreme Court of Nigeria. He graduated Second Class Honors (Upper Division) in Law and Political Science respectively. He holds the Commendation of Nigerian International Model United Nations as the Rapporteur for Economic and Social Council (ECOSOC) for the 2011 Convection year. As a Student Delegate he had an audience with the Swiss Government. He is presently a research consultant and a Law Practitioner with B.S Nwankwo SAN & Co. No 1 Owerri Road Nnewi. Comments on this article can be reached to him through this medium:[email protected] through 07036758285

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