Operation ‘Amotekun’ And The Quest For State Policying: The Need To Adhere To Due Process Of Law For Democratic Purposes By Hameed Ajibola Jimoh Esq.

For quite some days, there has been the rising issue of a
codenamed security operation named ‘Operation
Amotekun’, launched by some governors of some
South-Western States in Nigeria, such as: Lagos State, Ogun State,
Oyo State, among others, the launch which was said to have been
necessitated by the alleged criminalities rising in some
communities in those States since the efforts of the incumbent
security forces of the Federal Government such as the Nigeria
Police Force, etc., have not been able to find a lasting solutions
to these menaces. The Honourable, the Attorney-General of the
Federation had few days a go, described the said security outfit as
illegal, though, this description has received a whip of resentment
from some members of the public, lawyers, human rights activists,
as well as those States sharing the idea and initiative of the
security operation. To these contesting persons, the said security
operation is a welcome development in curbing crimes and
criminalities in those States that have embraced same and
applications have been called for from intending persons to be
recruited into the security outfit. Some other States of the
Federation have shown interest to also establish a similar security
outfit for that purpose, though with a different nomenclature. This
paper aims to share some legal views on the subject matter
considering the available laws applicable to the subject
matter.

First and foremost, in my humble view, since the word
‘crime’ is the basis of this security
outfit, then, there are laws that provide for criminal procedures
in Nigeria. Various States of the Federation have almost similar
procedure which permits private persons to carry out arrest and
handing over of persons suspected to have committed or found
committing offences or breaking into their property or damaging
public property to the Police i.e. the Nigeria Police Force. For
instance, see: sections: 20, 21, 22 and 23 of the
Administration of Criminal Justice Act, 2015 (applicable to Federal
Offences and the Federal Capital Territory, Abuja).
This is in relation to private persons. From these provisions, some
private security operating outfits have emerged either as vigilante
groups, domestic security or private house security staff, etc.,
though, without carrying arms and ammunitions except as licensed by
the Inspector-General of the Police or such police officer
empowered to license according to established law guiding the
Firearms and the Regulations made thereunder.

Nevertheless, there is an issue that I find distinguishable from
the Operation Amotekun as currently being
launched. This has to do with the fact that the security outfit
whether to carry or use guns, arms or ammunition or not, was
established by the executive arms of some State Government in the
South-West of Nigeria, without having proved any State law
legislated by the House of Assembly of those States legalizing such
establishment or creation as democratically provided by the
Constitution of the Federal Republic of Nigeria, 1999
(as amended)- herein after referred to as the
Constitution. Permit me to emphasise that the purpose
of this paper is not to check whether it is legal or criminal for
such security outfit to use or operate using guns, arms and
ammunition, rather, it is to check the legal status or power of
those State Governments either as executive or as legislature or
with both efforts to establish any or such security outfit in those
parts of Nigeria? Therefore, the vital legal question
to ask is ‘does a State government whether as executive or
legislature have the power to legalise or create any security
outfit or in this case, the ‘Operation Amotekun’ or any other
nomenclature that it might have been created for whatever
reason? In answering this question, I would like to
call the Constitution in aid being the grund norm of the
nation. First and foremost, I would like to address the executive
powers of those State governments to establish any security outfit
or the Operation Amotekun in this case.
By virtue of the provisions of section 5(3) of the
Constitution, it is provided thus ‘(3) The executive powers vested
in a State under subsection (2) of this section, shall be exercised
as not to— (a) impede or prejudice the exercise of the executive
powers of the Federation; …. (c) endanger the continuance of a
federal government in Nigeria.’.  (Underlining
is mine for emphasis). Leaping from this provision of the
Constitution is to the effect that the executive Governors shall
uphold and promote Federalism. Federalism in my view, is a
constitutional principle where by powers are shared among the
Federal, State and Local Governments. See: sections: 2
and 3 of the Constitution. Therefore, the
Constitution in section 5(2) clearly provides the
powers exercisable by the executive Governors  thus
‘(2) Subject to the provisions of this Constitution,
the executive powers of a State– (a) shall be vested in the
Governor of that 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 or Commissioners
of the Government of that State or officers in the public service
of the State ; and (b) shall extend to the execution and
maintenance of this Constitution, all Laws made by the House of
Assembly of that State and to all matters with respect to which the
House of Assembly has for the time being power to make
laws.’. From this provision, it is clear that the
executive powers cannot be conferred in isolation rather, there
must be such powers to establish the security outfit delegated
either by the Constitution and or the House  of Assembly for
what such House of Assembly has the power to make such law as
provided by the Constitution. Now, this issue of the executive
powers to create the Operation Amotekun
will be suspended till I am able to conclude on whether the State
House of Assembly has such power to make such law for the
establishment of the security outfit? The straight and easiest way
to verify to resolve this issue is considering the Exclusive and
the Concurrent and Residual Legislative Lists which are the codes
of powers for each of the powers of the Federal and State
Legislatures to make laws in Nigeria or for any part of the
country. A quick check on the Exclusive Legislative List confirms
that under item 45 of the List of the Part I of the
Second Schedule to the Constitution, the following is
provided ’45. Police and other government security
services established by law’. From this item 45, it
is clear that police and other government security services must be
established by law and the law being referred to here is the Act of
the National Assembly. As of the moment, in my humble view, there
is no such Act of the National Assembly which has empowered those
State Governments to establish such Operation
Amotekun. The word
‘exclusive’ used for all the items under
the Part I of the Second Schedule to the
Constitution shows that only the National Assembly
has or enjoy such powers. In the case of: A.G.
Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC.
 the Supreme Court has clearly defined the various separation
of the powers of the legislative levels of the Federation thus:
‘Section 4 of the Constitution of the Federal Republic of Nigeria,
1999, divides legislative powers between the National Assembly for
the Federation and the House of Assembly for the State in the
exclusive and concurrent legislative list. The National Assembly
has exclusive power to legislate for the Federal Republic or any
part thereof in respect of matters in the exclusive list. The
National Assembly also has power to legislate, though not
exclusively, on matters in the concurrent legislative list set out
in the first column of Part II of the Second Schedule to the
Constitution and on any other matter with respect to which it is
empowered to make laws. The House of Assembly of a State has power
to make laws for the State or any part thereof on any matter not
included in the exclusive legislative list, on any matter in the
concurrent legislative list and on any other matter for which it is
empowered to make laws. The House of Assembly of a State also has
exclusive power to legislate on residual matters; that is, matters
that are not in the exclusive and concurrent legislative lists’.
(Underlining is mine for emphasis). This then leads us back to the
executive powers which I had suspended earlier above. It is my
humble view that since no State House of Assembly has been
conferred any power to legislate on ‘police and other government
security services’ and the fact that Operation Amotekun relates to
police and security services established by the executive
government of those States of the South-West (and not private),
then, the executive governors (as government) in my humble view,
lack the constitutional powers to establish or launch the Operation
Amotekun. Furthermore, as far as the Constitution is
concerned, there can only be one police force throughout Nigeria.
See section 214 (1) of the Constitution
and that is the current situation in Nigeria and though out all
parts of Nigeria. Also,   to the best of my knowledge,
the issue of State police or State policying has been proposed for
necessary legislative processes but there has been no law or Act of
the Parliament (National Assembly) that has passed same for the
Presidential Assent. So, the issue is unsettled until such Law is
made by the National Assembly and following necessary amendment of
the Constitution.

Finally therefore, it is my humble view that the position of law
as of the moment is that the creation of the Operation
Amotekun by those South West Governors (as
government) is illegal, unlawful, unconstitutional, null and void
and of no effect, as the only government recognised by the
Constitution to establish any police or other security services of
the Federation or any part of it is the National Assembly (and not
even any of the executive (of the Federation or State has such
power), as section 5 (1) of the
Constitution has only rested the powers of the
executive President to those laws made by the National Assembly).
Therefore, I am of the firm and humble submission with due respect
to those South-West Governors that their acts of establishing the
Operation Amotekun (regardless of the
genuine reasons given for such unconstitutional act) is forceful,
undemocratic and a breach of their solemn oath to uphold the
Constitution by their oath of office sworn to as contained in the
Seventh Schedule to the Constitution.
They are hereby advised most humbly, to reverse and cancel the said
security outfit named in whatever nomenclature forthwith and revert
and refer their grievances to the necessary federal government’s
security agency (ies) to find solutions to their aggrieved
grievances. This is what I believe is in tandem with democratic
principles and the due process of law as well as laying a good
example for others to follow. More so, two wrongs, in my humble
view, do not make a right! I therefore suppose that the
Attorney-General of those State Governments (who are lawyers by
virtue of their office) would convey necessary legal advice to the
respective Governors on the true legal position on the legality or
otherwise of the creation and or launching of the
Operation Amotekun. This is their duty as conferred on
those lawyers by virtue of Rule 1 of the Rules of Professional
Conducts for Legal Practitioners, 2007.

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