AMOTEKUN: ARGUMENT FOR ITS' CONSTITUTIONALITY!

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Branham PaulPipAr Chima
3L, Faculty of Law,
University of Benin.
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INTRODUCTION

The people living in the south western region of Nigeria have cried so much because of the injustice of kidnapping, farm terrorising, and armed robbery afflicted upon them. These acts are shown in [1]:

"the kidnap of the former Secretary to the Government of the Federation, Olu Falae, by herdsmen right on his farm in Akure";

"the Ondo State Governor, Rotimi Akeredolu, at the time also told his rather interesting story of his encounter with the armed men, who attempted to halt his convoy and attack him, but he managed to escape";

"In addendum, the painful murder of the daughter of the Afenifere, Reuben Fasoranti, by suspected herdsmen along Ore road shocked all";

"Olufunke Olakurin, was shot while on her way to Lagos by masked hoodlums after a visit to her father in Akure on June 23, 2019."

These heinous acts have led the six governors of the south western states which include: Lagos, Ogun, Oyo, Ondo, Osun, and Ekiti to form a security outfit known as the Amotekun. The decision by the governors of the south western states to initiate "Operation Amotekun" was attained in Ibadan in June 2019, at the regional security summit in Ibadan. As stated earlier, the summit was a response to the exacerbating security situation in the region. We are made to believe that the Amotekun be seen as a security outfit that will complement and aid the Nigerian police force in the upkeep of security in the south western region of the country.
However, with the introduction of the Amotekun, there have been waters of opinions as regarding its constitutionality. Opinions have amassed from several individuals, famous and non-famous, as regarding whether or not the security outfit "Amotekun" is contrary to the Nigerian 1999 Constitution of the Federal Republic of Nigeria.

This write-up promises to look into the constitutionality of the Amotekun and will argue for its' support to stop the unjust mayhem going on in the region. This write-up shall hence compound the relevant laws and argue for its' constitutionality.

RELEVANT AUTHORITIES

The laws which are relevant to properly dissect this issue include:
The Preamble to the Constitution of the Federal Republic of Nigeria 1999 (hereinafter, described as CFRN 1999) provides, "And to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country";

By s.5(2)(b) of the CFRN 1999 a state's governor power, "shall extend to the execution and maintenance of this Constitution";

By s.5(3) of the CFRN 1999, "the executive powers vested in a State under subsection (2) of this section shall be so exercised as not to: (a) impede or prejudice the exercise of the executive powers of the Federation;"

By s.13 of the CFRN 1999, "It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution."

By s.14(2)(b) of the CFRN 1999, "the security and welfare of the people shall be the primary purpose of government";

By s.214(1) of the CFRN 1999, "There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.";

Item 45 of the Exclusive Legislative List, "Police and other government security services established by law."

By s.20 of the ACJA 2015, "A private person may arrest a suspect in Nigeria who in his presence commits an offence, or whom he reasonably suspects of having committed an offence for which the police is entitled to arrest without a warrant.";

ARGUMENT

It is to be well noticed that the backbone of every law is Common sense. When the Constitution is to be interpreted, regard is to be paid to Common Sense, and not an odd interpretation of the provisions of the constitution that will lead to absurdity or what the drafters of the constitution never intended. Common sense is reason; laws are and must be reasonable.
The concept of paying homage to Common sense when interpreting the provisions of the Constitution have been given judicial approval. First, in the case of INEC & ORS. v. HABUHASHIDU & ORS. (2008) [2], the Court of Appeal stated that "The Court is bound to apply COMMON SENSE in the construction of statute"; further, in MBA v. MBA (2018) [3], the Supreme Court stated: "Where facts and circumstances are presented to the Court from which the Court exercises its discretion, it should be guided by law, justice and COMMON SENSE." From the preceding cases, and even without them, Common sense is a phenomenon so vital and which must be placed and used as a barometer in the interpretation of a statute. This is because, a law that is not in accord with Common sense is not a reasonable law and does not accord with the people – Common sense is what most people can relate to. For instance, a landlord of a house put 7pm as the time for the compound gate to be locked and anyone who comes after will not enter; however, if events turn that there is always "Hold-Up" on the path to the said house, Common sense automatically tells us that such law will have to be amended to suit the prevailing circumstance.

The constitution of the Federal Republic of Nigeria is the grundnorm of all laws that govern the people of Nigeria. It is such that if any other law contravenes it, that other law must be void – and also, if the Constitution does not expressly or clandestinely prohibits an act, it is wrong for any other law to do so; every law or act must be gauged with the provisions of the Constitution. This position was stated in The Federal Republic of Nigeria v. George Osahon & Ors (2006), where Alfa Belgore JSC (as he then was) stated, "Constitution of any country is the EMBODIMENT of what a people desire to be their guiding light in governance, their supreme law, FOUNTAIN of all their laws. As such, Constitution is not at any given situation expected to or presumed to contain ambiguity. All its provisions must be given meaning and interpretation even with the imperfection of the legal draftsman. COMMON SENSE must be applied to give meaning to all its sections or articles."; in the CFRN 1999 are contained some provisions that deal with the subject matter of this write-up.

Section 14(2b) of the CFRN 1999 is to the effect that "the SECURITY and WELFARE of the people shall be the PRIMARY purpose of government". From this preceding provision it is fulgent that the primary purpose why the government exist and what government officials must do, is to provide security and uplift the welfare of the citizens. Hence, any government that is not doing this or making efforts to achieve this, is a failed government; is a government that does not care for the welfare of his citizenry, and thus neglects the wellbeing of its' citizenry. To further buttress the role, Section 13 of the CFRN 1999 is to the effect that "It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution". Now section 14 and section 13 provided so far are in the same Chapter, hence, the combined reading of both sections is to the effect that any government whether state or federal, any authority whatsoever, exercising legislative, judicial or executive powers is to provide security and uplift the welfare of the citizenry. For the sake of this write-up, each of the governors of the several south western states is to comply with the provisions of the constitution and thus provide security and uplift the welfare of the people living in their respective states.

As stated earlier, there have been hitches in the security management of the south western region and this has led to many unjust killings. The Nigerian police are working but it seems like their efforts are not enough to curb the spreading menace. These governors listened to the cries of the people they govern and have decided to assist and help the Nigerian police in the curbing of this menace. Since this is a matter of security, will it be wrong for the governors to protect the citizens living in their states? Are the governors not carrying out the instruction of section 13 and 14 of the CFRN 1999? Should the governors fold their hands and watch the menace continue? Common sense should tell us that it would be wrong for the governors to not complement the activities of the Nigerian Police by the establishing of the Amotekun. The Amotekun is like every other vigilante group. It is not established as a state or regional police but rather to complement the Nigerian Police. It is like a man reporting to the police of a suspicious criminal. Should then we say that the man's act of reporting the crime to the police is unconstitutional? Goodness forbid!

The Amotekun has not come out to say that they want to replace the Nigerian police or carry out fully the duties of the Nigerian Police. The Amotekun has not come out to say that they will prosecute offenders or open up a prison where they will put offenders or suspects. These are the job of the Nigerian Police and the Amotekun has not stated that they will take over the job of the Nigerian Police.

It is well known that the Constitution recognises the Nigerian Police as the only police force that is to be in existence. Section 214(1) of the CFRN 1999, is to the effect that "There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof."; as argued earlier, the operations of the Amotekun does not take over the duties of the Nigerian Police. In fact, it is not to act as a police force. Its' main purpose is to report suspects and arrest persons to the Nigerian police. The arresting of suspects by the Amotekun is not to be seen as loosed because even the Admistration of Criminal Justice Act 2015 grants private parties the power to arrest by virtue of section 20 which reads "A private person may arrest a suspect in Nigeria who in his presence commits an offence, or whom he reasonably suspects of having committed an offence for which the police is entitled to arrest without a warrant". If private persons can arrest suspects, why not private persons in group, like the Amotekun? Any contrary opinion will be lacking of Common sense. The Amotekun does not and will not impede the workings of the Nigerian Police. see s.5(3) of the CFRN 1999 above.

The preamble of the Constitution is to serve as a guiding light when interpreting the Constitution; and the preamble of the Nigerian Constitution provides, inter alia, "to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country"; here is the word "welfare" on repeat again. The welfare of the citizens is so paramount for it to be overlooked. In OGBONNA v. THE A.G OF IMO STATE & ORS (1992) referencing the Black's Law Dictionary 6th Edition, the Court stated, the preamble is "a clause at the beginning of a Constitution or Statute explanatory of the reasons for its enactment and the objects sought to be accomplished."

CONCLUSION

From the constitutional and statutory provisions provided above including the tenable arguments, it is obvious that the Amotekun outfit is not unconstitutional but rather a call for the securing of the welfare of the people of the south western states. The governors ought to be applauded, instead of the rising talks of unconstitutionality. As the constitution has shown, the welfare and security of the people is paramount and is even placed as the top primary duty of the government whether state or federal.

The Amotekun is not taking over the duty of the Nigerian Police but rather is to complement and report and arrest suspects to the Nigerian police which remains the only police force in the Federal Republic of Nigeria. Not till the Amotekun goes rogue, it remains tenable.

SOURCES

[1] Premium Times, https://www.premiumtimesng.com/news/headlines/371853-amotekun-constitutional-implication-of-south-west-regional-security-initiative.html, accessed 15th January 2020;

[2] LPELR-4310(CA);

[3] LPELR-44295(SC);

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http://paulpipar.cf/articles/amotekun.php