No one can truly act oblivious of the fact that Nigeria as a nation is presently going through a very volatile stage in her national history. Unprecedented levels of insecurity, extremely divisive ethnic, tribal and religious consciousness, regional polarization, steep economic nosedive, perplexing inflation rates and a litany of other shredding problems concurrently bedevil the length and breadth of Africa’s most populous nation.
The deplorable state of the nation has unsurprisingly infused an air of desperation in the atmosphere and those who have inhaled consequently show signs of desperation in their various spheres and purviews of authority. The near failure of the state has unintentionally instigated the rise of phony messiahs mostly brandishing ethnic and religious sentiments across the nation; what is constitutional is now easily sidelined for what is expedient and instanteously soothing in dissonance with the elementary concept of constitutional supremacy. In light of this threatening trend, this writeup is delicately articulated to advocate urgently striking a balance between constitutionality and necessity in order to save the constitution legally presumed as the highest law in the land from getting swamped in the mire of frequent disregard from authorities in view of contemporary national realities with microscopic focus zoomed on the recent establishment of regional security outfits to address one of the stinging issues in the country – widespread insecurity.
REGIONAL SECURITY OUTFITS
In January 2020, Governors from the South-West region upon deliberation and attainment of a consensus announced the formation of a security outfit for the region code named “Amotekun”. This action thereafter sparked controversy with several constitutional law pundits questioning the constitutionality of the security set-up.
Observably, it was almost unanimously agreed that such regional security framework is not envisaged or endorsed by the extant provisions of our constitution; however, many submitted that the action was caught in the web of expediency considering the overwhelming security challenges which confront the region, the palpable failure of the federal security architecture to checkmate them, the paramount duty of the state governments to protect lives and properties stated in section 14 (2) (b) and the corollary duty of the citizens to render assistance to appropriate and lawful agencies in the maintenance of law and order expressed in section 24 of the 1999 Constitution.
Since its formation, the operational pattern of the outfit contrary to what was initially hinted by the Governors has been quite tumultuous as members of this outfit now possess dangerous weapons and are not constrained by any form of supervision from the police. As a matter of fact, members of the outfit have been belligerent rather than complementary to the police on several instances. On one of these instances, 4th of January 2021 specifically, members of the Amotekun Corp shot a policeman in Sanga area of Oyo town. The outfit has also been accused of being extrajudicial and genocidal in its operations masquerading under the guise of combating killer herdsmen in the South-West. This has triggered pockets of inter-tribal confrontations in various cities in the region including the Ibarapa crisis in February, and the recent extrajudicial killing of a Fulani man and his two sons in Ibadan. In the face of these indicators, one question stems from the mind of a dispassionate and patriotic Nigerian, to wit; Has the formation of the regional security outfit not exacerbate the already fragile and highly fragmented state of Nigeria as a unified federation? However, so as not to veer of tangent, this article would not attempt to resolve the posed question.
Proceeding, few weeks ago news filtered in, this time from the South-East announcing the formation of another regional security network named “Ebube Agu”. Like Amotekun for the South West, the regional security outfit would be funded and coordinated by the South-East Governors to fight the bloating spate of insecurity in the region. The constitutionality of this outfit was not contested because of the implicit precedent set through the subsistence of Amotekun in the South-West.
UNCONSTITUTIONALITY OF REGIONAL SECURITY OUTFITS
Under the lucid provisions of our constitution, it is generally agreed that there exist no express or implied endorsement of the establishment and maintenance of regional security agencies; or any other security structure by the federating units. Security agencies and the defense of any component unit or region in the country are exclusive to the Federal government by virtue of Item 17 and 45 of the Exclusive Legislative List of the Constitution. With utmost humility and total fidelity to the true intendment of the constitution, it is strongly submitted by this writer that all attempts to shrewdly establish constitutional grounds in support of the establishment of these regional security outfits sinks like vehicle in very deep mud by virtue of the clear itemization of security and policing in the exclusive list. In Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122, the Supreme Court said “The word “exclusive” when used in a statute means “excluding all others, shutting out other considerations, not shared or divided; sole; single; as an exclusive right”. In consonance with the foregoing, Item 17 and 25 of the Exclusive List of the Constitution empowers only the Federal government to handle issues of security agencies and policing to the total and absolute exclusion of others. This power is not shared or divided; it is sole, single and shuts out other considerations. A fundamental principle of interpretation is that where words are clear and unambiguous, they should be given their natural and ordinary meaning. SEE A.G Lagos v. A.G Federation (2014) 9 NWLR (Pt. 1412) 217. Therefore, the constitution clearly precludes component units, states or regional confederacies from establishing security agencies. They are only required to collaborate with the federal agencies to ensure peace and security within the jurisdictional radius of their respective authority as Governors.
EXPEDIENCY OF REGIONAL SECURITY OUTFITS
As highlighted in the prologue of this article, these are evidently difficult times for the country. Insecurity is at an all-time high and it is abundantly clear that the federal security apparatus is dazed and almost paralyzed by the overwhelming torrent of violent crimes across the length and breadth of the country. The Armed forces have pathetically struggled to even protect themselves in the face of resurging violence of different shades and gradations – kidnapping, banditry, terrorism, armed robbery etc.
With the failure of the security agencies to live up to their constitutional roles, the inherent self-defense instinct amongst citizens have been tickled from slumber.
Understandably, this has stood as the justification for the establishment of regional security outfits. Desperate times require desperate measure, Britain’s greatest Prime Minister Winston Churchill said. Necessity is the mother of invention is another cliché which fits into the peculiar circumstances surrounding the establishment of these regional outfits. The security of lives and properties is the primary essence of the state and should enjoy priority over religious adherence to contemporaneously unhelpful and bureaucratic provisions of law, is also a strong point.
THE CONSEQUENT DANGERS FOR OUR CONSTITUTIONAL JURISPRUDENCE
The above justification is strong, cogent, and persuading, and this writer does not intend to deprecate it by trivializing the stream of security palavers the country is currently drowned in.
It will only amount to self-deceit for any Nigerian to believe the current security set-up operated by the Federal government will be sufficient to handle the crisis. This is life and not some sorcerous movies; nothing will change if changes are not made in our manner of approach to our security challenges. Therefore, on the basis of quelling hammering security expediency, the establishment of the regional security outfits is considered necessary. The concern of this writer is striking equilibrium between constitutional supremacy and social expediency. Though the formation of these outfits is necessary and allowed to stand despite its unconstitutionality, it lays a dangerous precedent in our national trajectory and constitutional jurisprudence especially regarding the supremacy of the constitution as unambiguously spelt out in Section 1(1) and (3). In subsequent times, mischievous political leaders (who are not short in supply) may carry out brazen unconstitutional actions and take shelter under the forte of necessity or expediency making undeniable reference to the unconstitutional establishment of regional security apparatus which was acquiesced to at a time like this.
It is quite striking that after more than one year of Amotekun’s uninterrupted operation and the new establishment of Ebube Agu, as a country we are still debating about providing for State Police in our Constitution when it is obvious that necessity has birthed on us that which the constitution does not contemplate.
Today, despite the clear unconstitutionality of these regional security outfits, no one can reasonably oppose them because of present-day security realities. Though these unconstitutional acts are practically overlooked as a result of overriding circumstances, the rippled effect on our constitution is the gradual neglect, deflection and deflation of its supreme role in defining valid and invalid actions by authorities in the state. However, the blame for this subtle abandonment can be validly placed on the numbness of the legislature and their seeming unawareness about prevailing issues in the country. They have failed woefully to bring the constitution at par with present realities and this is stealthily rendering the constitution obsolete.
It is this writer’s worry that the concept of Constitutional Supremacy which we learnt as constitutional law students will soon transcend to an exclusively academic concept with no tinge of practicality in our national life. It may be excused today for reasons that are admittedly understandable, but this trend portends danger for our democracy in the long run. If the constitution loses its binding effect on every action by authorities in the state and is no more the preeminent law by which the validity of actions within the state are measured, than we are headed for a serious constitutional crisis.
It is therefore recommended that the National Assembly quits playing to the gallery and initiate the process of amending the constitution to accommodate the creation and maintenance of regional and state police. The era of political rhetoric has elapsed and the debates on the issue of state police have been rendered totally irrelevant by the establishment of these regional outfits, hence, we have no other rational choice but to accept reality and grant this phenomenon the strength of constitutionality, to save the constitution from embarrassment and long-term opprobrium.
About the Author.
Kelechukwu Prosper Nwodo is a law student, writer and political commentator. He can be reached via Contact: +2347057340392