On the 9th of January 2020, six Governors of the Southwestern states of Nigeria launched the Western Nigeria Security Network, WNSN, code-named: ‘Operation Amotekun’. The WNSN was anticipated to cover Oyo, Ogun, Ondo, Osun, Lagos and Ekiti states and on its launch, Governor Seyi Makinde of Oyo State and Governor Kayode Fayemi of Ekiti state addressed the public as regards the purpose and aim of ‘Operation Amotekun’ and the lofty prospects it holds for Nigerians.

However, few days after, specifically on the 14th of January 2020, the Honorable Attorney General of the Federation Abubakar Malami released a press statement declaring ‘Operation Amotekun’ illegal, ultra vires, and in contravention of the law; therefore throwing Nigerians into a dilemma as to the true position of the law. Shrill protests also followed from many other quarters.

Jadesola Esan, Esq., live on air at Diamond F.M 101.1, speaking on the ‘Constitutionality of Amotekun’

In this piece, we make an analysis from the purview of the law with keen attention to the provisions of the constitution and other enactments of the National Assembly.

There is no gainsaying that the Constitution of the Federal Republic of Nigeria 1999 as amended (hereinafter cited as 1999 CFRN- as amended) is the supreme law of the land, according to  Section 1(1) (2) and as such, any act, express or implied or any law that is inconsistent with the provisions of the constitution is null and void. Flowing from the foregoing, Sections 4 and 5 of the 1999 CFRN (as amended) provides for the legislative and executive powers of the government respectively. While the legislative houses at each level have their powers delineated in Section 4, on the one hand, Section 5, on the other hand provides for the executive powers to act upon the areas drawn out by the legislature.

Items 17, 38 and 45 of the Exclusive Legislative List, Second Schedule to the 1999 CFRN (as amended) vest in the federal government the power to act with regards Defense, Armed Forces, and the Nigerian Police or any other policing agency respectively. It is public knowledge that while the federal government may act on matters contained in the Concurrent Legislative list, the state government cannot act with respect to matters contained in the Exclusive Legislative List. Also, Section 214 of the of the 1999 CFRN (as amended) provides for the creation of the Nigerian Police Force and stipulates that no other policing agency may be created except in pursuant to the Constitution.

Having said that, the question bears asking: Can ‘Operation Amotekun’ be regarded as regional police? Can we rightfully refer to the team as a group of policing individuals or is this merely a group of Nigerians exercising their rights to arrest unanimously? It is important to note that the rationale behind the launch of the WSNS is to assist the police and to handover persons suspected of being involved in criminal activities to the police for proper prosecution. In the light of this, we cannot say that Operation Amotekun is in contravention of the provisions of section 214 of the Constitution of the Federal Republic of Nigeria. This is because the group is not a policing agency but rather a group of individuals organized to exercise their collective rights to arrest and hand over to the police.

Olamide Ajisebutu, Esq., live on air at Diamond F.M 101.1, speaking on the ‘Constitutionality of Amotekun’

To further justify the legality of Operation Amotekun, Section 24 (e) of the 1999 CFRN (as amended) provides that it is the right of every citizen to render assistance to appropriate and lawful agencies in the maintenance of law and order. ‘Operation Amotekun’ only provides an organized avenue to do this. Additionally, Section 14(2) (b) of the 1999 CFRN (as amended) provides that the security and welfare of the people is the primary purpose of the government. Hence, as the Chief Executive of their states (pursuant to Section 176 of the 1999 CFRN- as amended), it is not out of place for the state governors to take necessary measures to aid and compliment the efforts of the police and other security agencies.

Taking a further look at this subject, we will find that we can imply from the provisions of Section 20 of the Administration of Criminal Justice Act, 2015 which provides for the statutory power to arrest and similar provisions contained in sections 272-275 of the Criminal Code of Nigeria that community policing is legal. Since this right can be exercised individually, wouldn’t it be counter-purpose if we rule out collective exercise?

At this juncture, we cannot help but refer to the general apprehension expressed by some persons that ‘Operation Amotekun’ is illegal by virtue of the provision of Section 227 of the 1999 CFRN (as amended) which provides:

no organization shall retain, organize, 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 organized, trained or equipped for that purpose.’  However, the sole aim of ‘Operation Amotekun’ is to fight crime; its slogan reads ‘Zero Tolerance to Crime’, more so the South-West Governor’s forum already allayed the fear being nurtured in some quarters by clearly stating that personnel of ‘Operation Amotekun’ are not empowered to bear arms. Thus, ‘Operation Amotekun’, in our humble view, is simply an organized form of neighborhood watch. However, to avoid the perversion of this applaudable initiative, it is important that there be enacted a regulation to regulate the activities of ‘Amotekun’. In this sense, all six states must pass a law independently sanctioning Amotekun and drawing the lines and dictates for implementation.

Furthermore, it amounts to gross unfairness to declare the ‘Amotekun’ outfit illegal while its counterparts like the Civilians Joint Task Force in Borno, Kano State Hisbah Corps in Kano and Katsina, among others are thriving in the Northern part of the country. The rationale for the introduction of this initiative is not foreign. In 1998 the Bakassi Boys of Abia State formed a neighborhood watch which was eventually legislated upon. We also have the Oodua People’s Congress, OPC, to mention but a few. ‘Amotekun’ was borne out of concern for the people of the South-West and it also gives support to the Nigerian police force and in no way a policing agency. Nor is it another Police, so to speak.

According to Section 232(1) of the 1999 CFRN (as amended), the Supreme Court has been given the exclusive jurisdiction in any dispute between the Federation and State(s) or in any dispute between states. We submit, ith profound respect, therefore, that it is not within the powers of the Attorney General to determine the legality or otherwise of the ‘Amotekun’ outfit; let alone declare it so. That power is vested in the Supreme Court of Nigeria.

Conclusively, we must remember that just as it is for the legislature to make the law; it is for the judiciary to interpret that law. We, therefore, counsel both parties involved (that is the Federal government and/or the state governments) to seek redress in the Supreme Court for the proper and final position of the law on this matter. Should any of the parties attempt a suit, we must add that the Western Governors must be sued together but through their distinct Attorney Generals and not as the Western Governor’s Forum because the latter lacks legal identity per se in the eyes of the law.

Jadesola Esan, Esq., (jadesola.esan@harlemsolicitors.com) and Olamide Ajisebutu, Esq. (olamide.ajisebutu@harlemsolicitors.com) are Junior Associates at HARLEM Solicitors)

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