Rejoining Afe Babalola, SAN on the Legality or Otherwise of The ‘Amotekun’ Security Outfit: An Offer of Skepticisms – Destiny O. Ogedegbe

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Nine days into January 2020, Governors of the six south-western states announced the launch of a new security outfit known as the Western Nigeria Security Network (WNSN), “Operation Amotekun”. Very shortly after the launch of what appears to be a dew in the arid forest of security hiccups in south-western Nigeria, the Attorney General of the Federation, through a press statement declared that the Amotekun security outfit was “illegal” and he drove his reasons for deprecating the legality of the outfit. The pith of his reasons was that defence and security are issues exclusive to the Federal Government by virtue of Items 17 and 45 of the Exclusive Legislative List of the Constitution and could only be legislated on by Federal Government. A joint reading of both items of the Exclusive Legislative List and Section 214 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the Constitution”), suggests that the Armed Forces and paramilitary units validly established by the National Assembly are the agencies to sustain the defence and security of Nigerian citizens and if any other body be set up for the purposes of defence, it would be initiated from the Federal Government.

Many lawyers have condemned the AGF for stating that the Amotekun security outfit is illegal and unconstitutional. Notably, the learned Afe Babalola, SAN tongue-lashed the AGF and stated here, with the variety of audacity that should come from a giant of his ilk, that the Amotekun Security Outfit is valid and constitutional, giving reasons for his pontifications.  Consequently, this paper is an offer of skepticism to some acclaims made by the Learned Silk, without attempting to assert, in a similarly audacious tone as the Learned Silk’s, that the Amotekun Security Outfit is illegal. Or otherwise. Focus is placed on the reaction of the Learned Silk because of all lawyers who have spoken on this issue, Afe Babalola, SAN’s position appears to have most enjoyed the acceptance by the reading public. This writer will go on to state the points of the Learned SAN and join issues with him accordingly.

  1. The learned Silk first stated that the Attorney General of the Federation cannot declare the Amotekun as illegal as he is no court of law. He further stressed that only a court of law could determine the legality or otherwise of the outfit. It is the position of this writer, with respect, that this statement is hasty and insidious. For one, the learned AGF did not set out, by himself to declare the Amotekun as unconstitutional with the effect that it should immediately halt its activities. The press release of the AGF did not come with sanctions nor did it attempt to bear permissible timelines within which the outfit should be put paid to. Like other lawyers, he has expressed his view on the issue and it should matter less that he did so in his capacity as the AGF. The AGF has not pretended to be a court of law, nor did his reaction suggest that his office had the capacity to proscribe the outfit. His expression of dissatisfaction is a conditioned consequence to a conditioning circumstance, and no more. Secondly, if we criticize the AGF for declaring the outfit as illegal, with what self-consequence do we accept the declarations of legality advanced by Senior Advocates such as the learned Silk? Afe Babalola, SAN and other concerned SANs should equally refrain from declaring the outfit as legal, when a court of competent jurisdiction has not so declared it.

Indeed, one would argue that a statement as to the illegality of an outfit made by the AGF is made on behalf of the Federal Government and as such it represents the view of the FG on the matter. This is true, and the FG is allowed to disagree on the legality of a body. Law has always been contentious. What is not true is that the AGF suggested to use his office to halt the activities of the Outfit. To accuse and attack his opinion in the manner at which many lawyers have done, is to raise tensions, inflame political passions as to the intention of the FG with regard to south-western movements whereas this is as unnecessary as it is unverifiable, at least not from the Press Release issued by the Attorney-General.

  1. The Learned Silk mentioned that although items 17 and 45 of the Exclusive Legislative List of the Constitution makes defence and the establishment of security agencies the primary duty of ONLY the Federal Government, citizens have a right to defend themselves and protect their property. He went further to state that nothing in Section 214 of the Constitution which establishes the Police Force, or the Police Act itself, stops citizens from protecting themselves. Hence, the Amotekun is legal and constitutional.
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With respect, it appears that the learned silk is drawing a conclusion from unrelated premises. It would be a stretch to simply say that because people have the right to protect themselves or their well-being, they could form themselves into organized bodies, adorn themselves with legality, and operate accordingly. If that were so, irate Nigerians would be justified in waking up one morning and forming another National Assembly to legislate on affairs that threaten their peaceful co-existence. This is absurd – law does not exist without order and the constitution made sure of it by providing marked legislative and executive powers over various matters for the  collective good. The issue of Defence remains an exclusive matter under the constitution and the existence of citizens’ right to defend themselves and their properties does not automatically disarrange the constitutional delineation of legislative authority across the tiers of government, under the various legislative lists. No section of the Police Act donated EXCLUSIVITY to the police nor did it preclude any other security agency, some other SANs (including the learned silk) argue. But then, what law creates a corresponding power of state governments to establish agencies charged with the duty to defend lives and property as security agencies? Certainly not the constitution and it is hard to see any higher power. Any state legislation on defence of lives and property is caught up by the doctrine of covering the field and it cannot hold sway.

  1. The Learned Silk mentioned sections 24 and 40 of the Constitution of Nigeria to say that citizens have a right to both protect their lives and property and also have a right to form themselves into organized assembly as they share that freedom. Such freedom, he posited, should extend to the Amotekun Outfit. He further stated in his interview that the sections he mentioned are superior to the items in the Exclusive List of the Constitution of Nigeria. This writer begs to disagree and point out the following;
  2. Section 24 of the Constitution which provides that citizens should assist the government in realising the aim of securing lives and property, is a Fundamental Objective and not one of the rights, that citizens enjoy. Provisions in Chapter 2 of the Constitution are scarcely justiciable; it is not a right and so it creates no corresponding duty on the government to be observed. The circumstances surrounding their justiciability can only be achieved when a law is made to that effect. For instance, the “right” to free education has always been in the constitution but it only became justiciable by reason of actual legislations enacted to give it life. See Attorney General of Ondo State v Attorney General of the Federation (2002) 9 NWLR (Pt.772) 222 . 

a.)  Section 40 which talks about the right to assembly cannot be reasonably extended to mean that citizens can be formed into defence groups without the involvement of the Federal Government. First, the section is not absolute; it is limited by section 45 of the same constitution which provides that for the purpose of defence, amongst other things, the exercise of the right to peaceful assembly must be subject to the powers of the government. “Defence” being in the exclusive legislative list and which has been legislated upon by the National Assembly by the establishment of federal military and para-military bodies such as the Police, means that citizens therefore must restrict their right to form peaceful assemblies to other causes and not for the purpose of defence. Self preservation which enures to every citizen of Nigeria must not be confused with the situation of an organized body armed with executive imprimatur to defend the lives and property of other citizens.

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b.) If the learned Silk argues that citizens can form themselves in organized groups to protect themselves, then he deliberately, with respect, undermines the intendment of the constitutionalists who envisaged a situation where various forms of self-protecting bodies spring up in states with confusing agenda all simply because they have the right to protect themselves or form assemblies. It is for this reason that, though the freedom was granted, it was limited further in Section 45 of the constitution away from matters touching on defence. The constitution then went further to ensure that “defence” is within the exclusive purview of the Federal Government only. This has been the major clog back to the clamour of states to have a state-police. Would it not appear that what the Amotekun is, after undressing the neatly woven filigree veiling the program, in fact a state police?

c.) It is unfounded to say that sections of the constitution rank higher than the items in the schedule. Interestingly, the supposedly superior sections the learned Silk cited are either sections bordering on Fundamental Objectives (which in themselves are weightless), or a section of fundamental rights which is severely restricted by another section to which the former is subject to. This claim, with respect, lends itself to ridicule.

d.) The learned SAN also progressed in his pontification by stating that the Amotekun outfit is “a protective outfit” and it should be well appreciated as it assists the police in ensuring safety of citizens. This is true; the desire of the states is noble. It has been argued that since the Amotekun would not have guns, they are not state police officers and as such, no constitutional usurpation has occurred. It is hard to understand the scope of the outfit especially when considered practically. When understood, it is also hard to see how it will not dovetail into providing defence of lives and property. With over 100 vans and 600 motorbikes and a workforce totaling in excess of a thousand, do they intend to patrol and share well-meaning felicitations without actually carrying out what would be legally and reasonably described as “defence”? Agreed, they do not own arms, but defending the lives and property of Nigerians could be achieved without having to carry guns (even though it is difficult to see how a workforce of that amount consisting of trained hunters and deft peacekeepers will never have arms when even fledgling dozens of vigilante groups have sophisticated weapons). Indeed, once their operations dovetail into defence, it therefore suggests that six states have arrogated the constitutional imprimatur to defend, left to the Federal Government, to themselves, while impracticably proclaiming that what has occurred is the otherwise, in fact.

Where, it would appear that the learned SAN has erred, with respect, is ignoring the scope and range of a body created by six states and the impact their activities would have on the security space of federal agencies in doing in the same job indeed within those states as well. Where it is obvious that there would be practical conflicts between Police Officers properly so called and the Amotekun, it connotes indices of a polluted legal arrangement and to that extent, it may not be out of place to say that the reaction of the Federal Government is within their bounds. The practice of a unified intelligence and protectionist unit by a set of six united states would mean that operations of these states would likely traverse state borders thus making it difficult to ascertain how the Federal Government should, in one breath, maintain the Armed forces (all of whose operations traverse several states) and also keep silent to the proliferated operations of the knights in shining armour.

  1. The Learned SAN cited Section 275 of the Criminal Code to substantiate his view that citizens have a right to use proportionate force to defend themselves and their properties. It is important to state that before the establishment of the Amotekun, it was never in doubt that citizens had a right to protect themselves. Again, with respect to the legal giant, the right contemplated in the section above is the “right to self-defence”. It is not legal justification for an organized intelligence or defence unit formed by six states. The central idea of self defence is reactive use of force, not a preempt arrangement in anticipation of force; thus, the above section cited by the legal juggernaut holds no water.
  1. The learned Silk also cited the existence of other security outfits especially the HISBAH and other civil defence corps in the North as justification for the legality of the Amotekun outfit. He does not share alone in this sentiment. Learned Femi Falana, SAN shares too in what may appear to be a crumbling crevasse of logic. It is important to mention that the existence of vigilante units, northern Hisbah and the similar outfits created by states, strictly speaking, are all in contravention to the constitution. Now, that unlawful bodies exist is no justification for the establishment of new ones. Indeed, the statement of the AGF who has since been silent to the existence of these northern varieties, but, the learned silk in addressing the legality or otherwise of an established militia is expected to shirk political preoccupations. For what it is worth, expedience may have facilitated the existence of these outfits and may continue to facilitate them (including the Amotekun) but for what it is worth, the if all units of the country or geo-political zones formed unified, organized intelligence and defence units, what then would be the practical basis of a denial that states have not adopted private police systems? It is ridiculous.
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This writer simply concludes by suggesting that, to give legality to state owned security outfits, first, they must be established pursuant to a state law (Amotekun is not). In the case of the Amotekun, it is difficult to see how they can operate flexibly across six states if respectively concerned states enact their laws to establish them. In that sense, they would have to operate as units of their respective states alone. Even at that, the scope of their powers and duties must be properly spelt out and nothing should suggest the defence of lives and property as they lack the constitutional power to legislate to that extent. In arguendo, it is difficult to see how practicable this is – it has been the one reason state police establishment has never seen the light of day. Looked at critically, the versed may conclude that to truly eliminate every shred of illegality surrounding the establishment of these outlets which are in themselves needed, patriotic and noble, the truest method is the most painful to accept – an amendment of the constitution to galvanize states with the power to legislate on the defence of lives and property of their respective citizens.

Destiny Osayi Ogedegbe (Mr. Possible) is a Nigerian Lawyer who is a passionate advocate and public speaker with core interests in Disputes Resolution, Corporate/ Commercials and Entertainment Law. He can be reached at: 08075149946; possibleosayi@gmail.com

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