Nigeria's Attorney General Lacks Power To Outlaw Amotekun By Femi Falana

Before the official launch of Amotekun in Ibadan, Oyo State, last week, the Inspector-General of Police, Mr Mohammed Adamu, held a meeting with South-West governors represented by Governor Kayode Fayemi of Ekiti State.


At the end of the meeting, the police endorsed the security initiative. By virtue of section 318 of the constitution, the word "government" is said to include the government of the federation or any state or local government council or any person, who exercises power or authority on its behalf.


Thus, through the Inspector-General of Police, the federal government had ratified the establishment of Amotekun. Therefore, the statement of the Attorney-General of the Federal Government that he was not consulted before the establishment of Amotekun is totally uncalled for and ought to be ignored by South-West governors.


With respect, Mr Malami's purported proscription of Amotekun is hypocritical and discriminatory on the grounds that the Civilian JTF operating in Yobe and Borno states is constituted by 26,000 well armed volunteers, who have been assisting the armed forces to combat terrorism in the North-East region.


Similarly, the governments of Kano and Zamfara states have established the Hisbar Commission. It is common knowledge that the Hisbar operatives in Zamfara State recently arrested a policeman alleged to have been caught in company with three women.


The Lagos State Government has equally established the Neighbourhood Watch to assist the Police and other security agencies in protecting the life and property of every person living in Lagos.


No doubt, section 214 of the constitution stipulates that there shall be only one police force in Nigeria. But the federal government has breached the constitution by setting up other police forces. For instance, the Nigerian Security and Defence Corps is another police force established by law.


The State Security Service is also a police force established by law. Its operatives are well armed. They wear masks even in broad daylight.


The federal government has also authorised officials of the Economic and Financial Crimes Commission, the Independent Corrupt Practices and Offences Commission, Nigeria Customs Service, Nigeria Correctional Service and other paramilitary agencies to bear arms.


To that extent, the federal government cannot stop any state from setting a security outfit. In fact, having lost control of the monopoly of violence to armed gangs in the various parts of the country, the federal government lacks the legal, political and moral right to challenge security outfits set up by state governments and individuals to protect the lives and property of the people of Nigeria.


It is pertinent to point out that as chief security officers in the respective states, governors have the power to adopt measures deemed fit within the ambit of the law to ensure the maintenance of law and order.


In Attorney-General of Anambra State v Attorney-General of the Federation (2005) 9 NWLR (Pt 931) 572 the Supreme Court held that, “The constitution in section 215 subsection (1) clearly gives the Governor of Anambra State the power to issue lawful direction to the Commissioner of Police, Anambra State in connection with securing public safety and order in the state.”


In Inspector-General of Police v ANPP (2008) 12 WRN 65, it was held by the federal high court that police permit for rallies was illegal and unconstitutional and that the governor is the appropriate authority who may delegate powers under the Public Order Act to a Commissioner of Police for the purpose of convening any meeting or rally.


It was further held that the Inspector-General of Police cannot exercise any power under the Act. The decision was upheld by the Court of Appeal in All Nigeria Peoples Party & Ors. v. Inspector-General of Police (2008) 12 WRN 65.


As tribunal of enquiry is not provided for in either the exclusive or concurrent legislative list it is a residuary matter. Hence, in Chief Gani Fawehinmi v. Ibrahim Babangida (2003) 12 WRN 1, the Supreme Court held that the power to set a Tribunal of Inquiry is vested in state governors and that the power of the President to institute a commission of enquiry under the Tribunal of Enquiry Act is limited to the Federal Capital Territory.


In view of the aforesaid decided cases of our courts the Federal Government does not have exclusive control over law and order in any of the 36 states of the federation.


No doubt, Mr Malami has anchored his controversial legal opinion on section 227 of the constitution, which provides that "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."


Since Amotekun is not an outfit set up by South-West governors to harass or intimidate political opponents, it cannot be prohibited under section 227 or any other provision of the constitution.


In other words, the constitution has not prohibited the establishment of security outfits for the defence of the people of Nigeria.


However, if Mr Malami is convinced that his position is backed by law, he should approach the Supreme Court to test the constitutional validity of Amotekun.


Meanwhile, the governments of Ekiti, Ondo, Osun, Ogun and Oyo states are advised to ignore Mr Malami's purported proscription and proceed to enact the necessary laws similar to the Neighbourhood Watch Law of Lagos State.