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Debate on Amotekun’s legality: Compendium of lawyers views


In the past week, Amotekun, the security initiative by Ekiti, Ogun, Ondo, Oyo, Osun and Lagos, states that originated from the defunct Western Region, generated lots of controversies that propped up several topical issues that dominated the national discourse space in Nigeria.

The Amotekun debate was immediately triggered when the attorney general of the federation, Abubakar Malami, asserted that the setting up of the initiative is illegal, citing specifically that by virtue of item 45 of the second schedule of the 1999 Constitution, as amended, policing and other government security services are on the exclusive list.

This development, expectedly, did not go down well with many Nigerians and has been a subject of hot debate. Therefore, in this unsolicited but imperative legal opinion, efforts would be made to dissect the legal position of the Federal Government on Amotekun and other ancillary matters arising therefrom.

While the initiative majorly got praised in the Southern part of Nigeria it has also attracted condemnation from some sections of the country, especially some leaders in the North, who say such arrangement was unconstitutional in a federal state and called for its scraping.

In this report, TheNewsGuru, (TNG), compiled the views gathered from some notable lawyers to help throw light on the furore over Amotekun’s legality or otherwise. TNG positioned the centre of its compilation to answer the following fundamental questions on Amotekun: The security question and the federalism question.

Aare Afe Babalola:

In a statement titled, ‘No law prohibits the establishment of Amotekun,’ Babalola said, “The issue of Amotekun is an issue of public safety and protection of property. There is no law in Nigeria, which prevents citizens from being able to secure their life and property. The Nigeria Police does not enjoy exclusive jurisdiction when it comes to the protection of life and property. As a matter of fact, in many parts of Nigeria, various outfits such as Civilian JTF, Hisbah Police and vigilantes have been performing the duty of protecting life and property.”

He added: “Given the provisions of the Criminal Code in Sections 272-275, the right of citizens to arrest any person for committing an offence is legal and may be exercised individually or communally. In any event, the regional community security outfit known as Amotekun cannot be set aside by oral pronouncement by the Attorney General or any other body. Only the court of law can declare the establishment illegal.”

Kunle Edun, publicity secretary of the Nigerian Bar Association (NBA)

“In civilised climes, security is everyone’s concern and not the exclusive responsibility of a particular organ of government.”
He described Amotekun as a good and commendable initiative, noting: “Similar outfits exist in the north and they were reported to have assisted the Nigerian military to stem the tide of armed banditry and insurgent activities.”

Keep Naira clean

Edun said since the floaters of Amotekun have “promised to work with the official regular security apparatus for proper coordination and collaboration, what is needed now is collaboration and partnership on security between the southwest governors and the Federal Government.”

Lagos based lawyer, David Fadile
The Federal Government declaration of the Amotekun as being illegal is in order. There is no law to the best of my understanding which established this group of people known as the Amotekun nor regulate their activities within the South Western States. Society is governed by law and order. Assuming that this security groups misbehave today how do we check their excesses.

In Lagos for instance, the activities of Lagos State Traffic Management members or groups otherwise known as LASTMA is regulated by the Lagos State Traffic Management Laws of Lagos 2015, same for Neighbourhood watch. Someone should tell me under which specific laws do Amotekun operate. I concede to the argument that the governor is the chief security officer of the state he/she governs but this constitutional provision is not at large. The 1999 constitution Section 214 stipulates that there shall be a police force for Nigeria, which shall be known as the Nigeria Police, and subject to the provision of these sections no other police force shall be established for the Federations or any part thereof. This is the extant law except and until the various Legislative Houses of the South West States legislate Amotekun into existence; their functions remain that of the Nigerian Police.

Chairman, Presidential Advisory Committee against Corruption, PACAC, Prof. Itse Sagay

“I am positively disposed towards it. I think it is a good beginning not to depend completely on the Federal Government for our security.
“We should begin to rely more and more on ourselves so that those who feel the pain are those who try to take control of the security situation.
“We know that the Police are few; they are stretched; we have about 250,000 policemen in a country of almost 200 million. So, I think these regional security institutions are necessary.
“I believe the police should cooperate with them and help with their training. And I believe eventually, they should even be armed so that we can have a lot more hands and local people involved in security.
“Perhaps that can lead to other benefits, such as economic cooperation and wealth creation; and gradually, we’ll begin to regain what we lost when we lost the regions in the 60s. So, yes, I support it.
“It’s not state police. I think the people who created it have been careful. Yes, there is a security outfit, but there is nothing in the Constitution that precludes either states or association of states from taking care of their security.
“There is this popular saying that the governor is the chief security officer of a state. That’s not an empty statement.
“They get a lot of money for security, and I look at this as part of the responsibility of the governors acting jointly to provide greater security in the Southwest.”

Femi Falana (SAN)
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 the 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.

Chief Bolaji Ayorinde (SAN)
The Attorney General does not have the power to declare Amotekun illegal. He advised Malami to go to court if he feels strongly about the matter.
“I see no controversy about this matter. Do I need court pronouncement to engage private security guards and provide them with vehicles and uniforms? There is nothing strange in what the southwest governors did. They can see Malami’s comment as his opinion and not the position of the law, which only the court can interpret.”

Barr Osigwe Momoh

The security of lives and property is the principal objective of the state as copiously provided for in Section 14 of the constitution, the function is vested in the states and federal government and by implication, the president and governors of each state.

However to avoid friction and executive overlaps the constitution has provided and empowered each unit of government each being limited and restricted to the 2nd schedule of the constitution.

Part one of the 2nd schedule deals with the exclusive list excludes the state government from matters relating to police and military – that being the case, although no budget can be created for this organisation, nothing stops the governor in line with Section 14 of the constitution to empower citizens and organise them in a bid to stem out crimes

Barr Gloria Ballason

Amotekun is a creation of the South-West Governors to tackle Kidnapping and other criminal activities.

The incidents of kidnapping and killings on farms and rural areas by persons often identified as Extremist Fulani herdsmen have particularly become worrisome.

Curiously, while the International community through the Global Terrorism Index (GTI) has noted its notoriety as the fourth terrorist group in the world with Boko Haram as second, the Nigerian government has not recognized herdsmen Extremism as a terrorist group.

That in itself is problematic especially in the light of the mind boggling casualties that this group has created in the Middle Belt & South West. It should be a welcome development that the South-West Governors as chief security officers of their states have taken a coordinated action to protect the territory of their influence more so as there is Civilian Joint Task Force in the North-East.

The Attorney General of the Federation through his declaration of Amotekun as an illegal outfit clearly believes that the South-West Governors have usurped the defence item on the exclusive legislative list.

I will argue to the contrary more so as the AGF and the Federal Government make no commitment to secure the people from the menace of kidnapping. The AGF can go to court so we can test the legitimacy of Amotekun.

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