Amotekun is Not Illegal: A Reply to Malami – Festus Ogun

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On Tuesday, the Attorney General of the Federation, Abubakar Malami, described as illegal the newly launched South-West security outfit codenamed, Amotekun. The Chief Law Officer, acting on behalf of the Federal Government, strongly posited that “no state government, whether singly or in a group, has the legal right and competence to establish any form of organisation or agency for the defence of Nigeria or any of its constituent parts”.

This development, expectedly, did not go down well with many Nigerians and has been a subject of hot debate and controversy. 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.

It is crucial to clearly state the two major grounds upon which the AGF declared Amotekun as illegal. One, he said the 1999 Constitution of the Federal Republic of Nigeria (as amended), herein referred to as “the Constitution”, establishes the army, navy and air force, police, etc. and consequently, no state has the right in law to establish any form of security organisation for the defence of Nigeria or any of its part. He cited Item 45 of the Second Schedule of the Constitution. Two, he argued that his office was not consulted on the matter. That if the South-West governors had consulted, he would have provided proper “guidance” that will help avoid the “illegality”.

On the first grounds, it is a truism that the “police and other security agencies established by law” are exclusively the business of the Federal Government as provided under the Item 45 of the Second Schedule of the 1999 Constitution.

The question that follows, therefore, is: Is Operation Amotekun a form of state police abhorred by our constitution? Well, during the official launch of the security network, the answer to this important poser was lucidly given. It was Rotimi Akeredolu, a Senior Advocate of Nigeria and Governor of Ondo State, who made it abundantly clear that “Operation Amotekun is not an alternative to the Police Force but (a) complement conventional security outfit”. In other words, Operation Amotekun is simply a local intelligence-gathering outfit. Being a complement to the Nigeria Police by way of native intelligence gathering is not illegal under our constitution or any law whatsoever. Operation Amotekun is, therefore, not only constitutional but highly patriotic. Anyone in doubt about this may read together the effect of the provisions of Sections 24(e) and 14(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria.

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To further buttress this point that Operation Amotekun doesn’t run contrary to any written law in Nigeria, Governor Kayode Fayemi of Ekiti State made it known that the personnel of the Operation would bear no arms. The outfit was simply an intelligence-gathering one which would help the police in no small measure to bring about peace and orderliness in our country. So, if Section 14(2)(b) of the 1999 Constitution provides that the “the security and welfare of the people shall be the primary purpose of government”, it is not out of place or illegal for the government of states in a region to come together and establish an intelligence-gathering outfit which will aid and complement the efforts of the Nigeria Police Force in achieving that purpose.

Therefore, it is important to respectfully state that it only appears the Attorney-General of the Federation seems not to be abreast of what Amotekun is all about before making the pronouncement. The position of the law canvassed by the learned Attorney General, most humbly, only applies to state policing and other security agencies established by law and not a native intelligence gathering outfit. If Malami was patient enough to get abreast of what the Operation is about, he wouldn’t have arrived at that hasty and erroneous conclusion.

Let us even assume without conceding that Operation Amotekun is “illegal”, we are of the humble opinion that it doesn’t lie in the mouth of the AGF to declare it as the same. It is only the court that has the inherent power and constitutional jurisdiction to pronounce Operation Amotekun as illegal and unconstitutional.

On the second grounds, it is rather surprising that the AGF expected the South-West governors to consult him for advice, guidance and directive. It is improper for him to have that expectation because: one, it is not a requirement of law and two, because it is not the AGF who will dictate to the governors the best way to implement their constitutional mandate to secure the lives and property of their people. Making such a consultation is unnecessary and alien to our polity. It shows clearly the AGF seems to be arrogating too much power to himself.

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Beyond the legalese, it must be emphasised that this back and forth on Amotekun would have been needless and avoidable if ours were a true federal system. The present federal structure is just too faulty and unsustainable. The fallacious federalism we practise in Nigeria is dubious, fictitious and fraudulent. If true federalism is what we indeed practise, I bet this issue would not have arisen at all.

This sad situation is only a quick reminder that this centralised policing system is inefficient, weak and unsustainable in a federal system. There would have been no need for Operation Amotekun in the first place if our security agencies have not failed in their primary duty to safeguard the lives and property of the citizens. With the growing rate of banditry, kidnapping, herdsmen attacks, terrorism and others, one would expect a strong and efficient policing system. What does one expect the helpless citizens to do when the state security has failed? Self-help and self-defence, provided for under Section 33(2)(a), which is inimical to the corporate existence of the country.

Frankly, it appears the Attorney-General is more political than legal on this issue. I really cannot understand why he will be quick to declare illegal Operation Amotekun but would, worryingly, close his eyes to the Hisbah Police (a state police), Civilian Joint Task Force and other security agencies, audaciously encouraging in people’s rights, in the country, particularly in the North. It was in the news recently that the so-called Hisbah Police, as unlawful as it is, even had the gut to arrest an officer of the Nigeria Police Force. The AGF decided to “look away” on all this but left no stone unturned is “illegalising” Amotekun. We must be curious!

Although I am not an ethnicist, I make bold to say there is a growing rate of social and political inequality in the country. Yes, I know verily that it is improper to justify a ‘wrong’ by making reference to another wrong elsewhere. The attitude of the AGF, condemning one and maintaining a biased neutrality on the other, is at best hypocritical and a show of one-sidedness. This unfairness and bias should give all desirous of the continuous existence of Nigeria a cause to worry.

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Operation Amotekun may have its flaws that must be quickly remedied by the relevant parties. First, it is merely a reactionary initiative and that is precarious. Again, the stakeholders in charge were beclouded by emotion and were in a rush while birthing the idea without necessarily dotting the i’s and crossing the t’s. It is uncontestable that the initiative is a great one but the planning and implementation were so poor. Be that as it may, the idea is a progressive one that must be supported by all patriots. The benefits in Amotekun are far beyond the challenges and inadequacies.

I hereby enjoin the stakeholders to ensure the enactment of an enabling law establishing Amotekun in the six South-West states. Although even if an enabling law is established to that effect, it would in no way affect the legality of the Operation when viewed from Malami’s lens. So, assuming it had been enacted as law before now, it would have still been ‘illegal’, according to Malami’s argument.

For the governors, I charge them never to be cowed or bow to pressure. This is a challenging time that the initiators must never compromise standard for cheap political reason by standing strong on their grounds and at their suffering people.

Nothing, nobody, can stop an idea whose time has come, it is said.

Ogun is a legal activist and law student at the Olabisi Onabanjo University, Ago-Iwoye. 09066324982

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