Opinions

Malami’s position on Amotekun grossly misconceived

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5 years ago

THE governors of the six states in the South-West geopolitical zone of the country recently came up with a laudable initiative to tackle the worsening security situation in the zone through the setting up of the Amotekun security outfit. The governors, to the delight and admiration of the generality of the people of the South-West, jettisoned their political differences and forged a common front culminating in the formation of the Amotekun security outfit. To most of the people of the six affected states, the action taken by the governors is in fact long overdue in view of the prevailing security situation in the region. What transpired in the Hobbesian state of nature where life was simply “poor, solitary, nasty, brutish and short” was in fact becoming a mere child’s play compared to what was being experienced in the region before the governors’ “enough is enough” intervention. Violent crimes and criminality held sway in the region causing constant fear and apprehension among the hapless people who heaved a sigh of relief when the security outfit came into being.

The Amotekun security outfit comprising of hunters and local vigilante groups is saddled with the responsibility of intelligence gathering and curbing of the menace of banditry, kidnapping, ritual-killing and all other forms of security challenges confronting the South-Western part of the country. However, no sooner had the security outfit been launched in Ibadan on Thursday 9th January, 2020 than insinuations began in some quarters that the Federal Government was not favourably disposed to the idea of setting up the outfit and that its conception is at variance with the letter and spirit of the Nigerian constitution. The Amotekun issue, just like any other contemporary topical issue, has been on the front burner of national discourse since it was launched in Ibadan. Divergent opinions have been expressed by many stakeholders regarding its constitutionality and/or legality. The majority have however welcomed the initiative of the six governors of the South-West who conceived the idea and in fact commended Their Excellences for a job well done. Organizations such as the Pan Niger Delta Forum (PANDEF) Ohanaeze Ndigbo and Arewa Consultative Forum have thrown their weight behind the setting up of the security outfit.

However, in what appears to represent the official position of the President Mohammadu Buhari-led Federal Government on the Amotekun issue, the Hon. Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) on Tuesday 14th January, 2020 stated that the said security outfit is illegal and unconstitutional thereby confirming the insinuations that the Federal Government is not positively disposed to the idea for reasons best known to it. With due respect to the learned Attorney General, his position on the issue is misconceived, baseless and unfounded viewed strictly from legal cum constitutional perspectives. First and foremost, Section 14 (2)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) clearly and unambiguously provides that the security and welfare of the people shall be the primary responsibility of the government. The word “government” as used in Section 14 (2)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) covers state governors since it is an incontrovertible fact that state governors are the alter ego of their respective states and in fact symbolise government.

It is also quite instructive to note here that the operative word in the aforementioned section of the Constitution is the word “shall” which is a word of command that connotes mandatoriness and therefore in effect makes it obligatory for the governors to provide security/protection for people in their respective states. Since the constitution by virtue of Section 14 (2)(b) statutorily charges governors with the responsibility to provide security/protection for the people, it follows therefore that they have unfettered discretionary power to put in place adequate measures or take steps they deem expedient or necessary to achieve that particular objective. The foregoing is in consonance with the clear and unambiguous provisions of Section 10 (2) of the Interpretation Act which provides to the effect that “an enactment which confers power to do any act shall be construed as also conferring all such powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it .” The point being made here is simply that the governors of the South West have the power to take any step whatsoever to boost the security of their people since they have a statutory duty to provide security for the people.

With respect, the opinion expressed by the Hon. Attorney General of the Federation that security is on the Exclusive Legislative List and therefore cannot be dealt with by state governments cannot and must not be taken in isolation of Section 14 (2)(b) of the Constitution which clearly imposes a statutory duty on governors to provide security for people in their respective states as the Chief Security Officers of their states. Furthermore, the provisions of Section 14 (2)(b) of the Constitution constitutes an existing law under and by virtue of Section 315 of the same Constitution and therefore cannot be waived, glossed over, undermined or voided by any authority or person no matter how highly placed. Mr. Malami (SAN) clearly lacks the power to usurp the function of the judiciary and declare the formation of the security outfit illegal and unconstitutional.

Also, contrary to the views expressed by the Hon. Attorney General of the Federation, there is nothing whatsoever in the Exclusive Legislative List as set out in the second schedule to the Constitution relating to security that precludes state governors from taking necessary steps to safeguard lives and properties in their states whenever the need arises which is what operation Amotekun is geared towards.

The learned Attorney General of the Federation cannot therefore read or import into the Exclusive Legislative List/Second Schedule to the Constitution what it does not expressly say or provide for as it is a cannon principle of interpretation of statute that an enactment must be construed strictly in terms of its intendment and tenor. Avalanche of Judicial authorities abound to that effect as the appellate courts have over the years made clear pronouncements on that.

Similarly, the trite position of the law which is as constant as the Northern star lies in that in interpreting a statute, regard must be had to the entire enactment so as to ascertain its intendment and tenor. In essence, a statute must be considered as a whole and not in piecemeal or fragments as done in this case by the Attorney General of the Federation, Mr. Abubarkar Malami (SAN). If the Hon. Attorney General had considered the Second Schedule to the Constitution/the Exclusive Legislative List in conjunction with Section 14 (2) (b) of the same Constitution, his opinion on the Amotekun issue would certainly have been different. It is quite apparent in the circumstance that Mr. Malami (SAN) formed his opinion having considered the Exclusive Legislative List/Second Schedule to the Constitution in isolation of its Section 14 (2) (b). The decision of the court in Idris v. A.N.P.P reported in (2008) 8 NWLR (Pt. 1088) 1 @ pg. 114, paragraphs E-F is quite apt in this regard. The court had held without any equivocation whatsoever thus: “In the interpretation of statute regard must be given to the entire enactment in order to understand its purport and meaning.” The point being made here is simply that the Hon. A.G. Federation ought to have read and/or considered the Exclusive Legislative List in conjunction with the clear and unambiguous provisions of Section 14 (2) (b) of the Constitution which saddles the government with the responsibility to provide security for the people.

Against the backdrop of the fact that Section 14 (2) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is silent on whether the word “government” as used in the said section refers to any particular tier of government. Any ambiguity arising from that development would be strictly construed against the Federal Government since it was the National Assembly, an arm of the Federal Government that passed the Constitution into law. The well settled position of the law is that any ambiguity or defect whatsoever in a document or enactment would be construed against the maker or drafter of the document pursuant to the contra proferentem doctrine otherwise known as the doctrine of ambiguity. An authority to that effect and in fact a clincher is the decision of the Enugu Division of the Court of Appeal in Asogwa v. Chukwu reported in (2003) 4 NWLR (Pt. 811) 540 @ 581 paras. G. This is what Their Lordships of the Court of Appeal said in that case: “If the language used by the plaintiffs/respondents lends itself to some obstruction or obfuscated by imprecision then it is the proponent that would suffer from the use of inelegant terms”.

What is more, the issue raised by the Hon. Attorney General of the Federation that security is in the Exclusive Legislative List is contained in the Second Schedule to the constitution while Section 14 (2)(b) of the Constitution is in the main body of the same Constitution. The law is well crystallized that where there is a conflict between what is contained in the Schedule to a statute and what is contained in the main body of the statute, the latter would automatically prevail over the former. This has been settled by the court in the case of Idris v. A.N.P.P. (supra) 1 @ 109 – 110 paras. H-A where the Port-Harcourt Division of the Court of Appeal per His Lordship, Omokri, J.C.A held emphatically thus:

“Therefore, where an ambiguity or conflict occurs in the construction of a statute relating to the provisions in the body of the statute and those of the schedule, the former prevails over the latter. See Oputeh v. Ishida (1993) 3 NWLR (Pt. 279) 34. Therefore, the provisions of paragraph 45 of the First Schedule to the Electoral Act, 2006 must be read subject to the provisions of Section 144(2) of the same Act.”

Flowing from the foregoing clear pronouncements of the court, it is the law that what is contained or listed in the schedule to an Act or enactment cannot in any way or manner whatsoever override or prevail over what is in the main body of such an Act or enactment. In the instant case, the Exclusive Legislative List heavily relied upon by Mr. Malami (SAN) in arriving at his opinion that the Amotekun security outfit is illegal and unconstitutional is in the Second Schedule to the Constitution and in the circumstance cannot override Section 14 (2)(b) which is firmly entrenched in the main body of the Constitution. Put simply, Section 14 (2)(b) of the Constitution enjoys supremacy over the Exclusive Legislative List which the Attorney General of the Federation erroneously premised his opinion upon.

In addition, having regard to the fact that the duty of state governors to provide security for people in their states is statutory in nature, that duty cannot be restrained or hindered by any authority or person since a statutory duty cannot be hindered or restrained as alluded to by Section 10 (1) of the Interpretation Act that a duty imposed by a statute shall be performed whenever occasion requires. Furthermore, there is a plethora of appellate courts’ decisions to the effect that the performance of a statutory duty cannot be restrained. One of such decisions was handed down in Danfulani v. E.F.C.C reported in (2016) 1 NWLR (Pt. 1493) 223 @ 246 paras. D-F.

In a similar vein, the security or welfare of the state/people is the number one law. The position of the common law in this regard is clearly expressed in the principle, “salus republicae suprema lex”. Therefore, the duty imposed on state governors to provide security for people in their states is extremely sacrosanct and cannot be compromised on any ground whatsoever. The foregoing principle of law is indeed a very fundamental basis for governors of the affected states to stand their ground and insist on providing security for their people. The governors are indeed on a terra firma as far as the setting up of the Amotekun outfit is concerned.

In a nutshell, the opinion expressed by the Hon. Attorney General of the Federation on the Amotekun issue clearly constitutes an undue interference with the powers duly conferred by the Constitution of the Federal Republic of Nigeria on the governors of the six states in the South-West of the country to provide security for the people of their states pursuant to Section 14 (2)(b) of the Constitution. One only hopes and prays that Malami’s position on the issue is not in furtherance of the alleged Fulanization of the country being contemplated by some powerful forces. What the Constitution prohibits is the setting up of a state police and the Amotekun outfit is clearly not one. Its existence does not therefore violate the Constitution in any way or manner whatsoever contrary to the opinion of the Hon. Attorney General.

Furthermore, Operation Amotekun is to all intent and purposes a child of necessity conceived by the governors of the six states in the South West geo-political zone of Nigeria to tackle the security challenges confronting people in the region, its existence could therefore be legally and validly premised on the doctrine of necessity. The National Assembly, an arm of the Federal Government has already set the precedent that the doctrine of necessity could be rightly invoked to address situations (in the event of such need) having invoked the doctrine in making Dr. Goodluck Ebele Jonathan the president of the Federal Republic of Nigeria a few years back following the death of the then president Umaru Yar’Adua. It would indeed be a serious disservice to the people of the South West if the governors of the states in the region just fold their arms and watch the prevailing security situation in the region without putting in place appropriate measures to address the issue. Afterall, the doctrine of utilitarianism propounded by Jeremy Bentham postulates clearly that leaders must use their position to always champion the greatest good and happiness (welfare) of the people and that is exactly what the state governors in the South West have done by setting up the Amotekun security mechanism.

Fortunately, all the governors of the six states in the region are seasoned administrators who know their onions and cannot be bamboozled or intimidated by anybody wielding federal might. Thank God, somebody of the calibre of Governor Rotimi Akeredolu, a prominent and highly distinguished Senior Advocate of Nigeria is among the governors and would no doubt guide his colleagues well on the issue at stake. Aketi is an astute jurist and is well known to be extremely fearless and courageous and would certainly not allow anybody to frustrate the Amotekun outfit and thus enhance the security of the people which is all what good governance is about.