Amotekun: Fayemi, Babalola, Falana Slam Malami

Amotekun: Fayemi, Babalola, Falana Slam Malami

…Say the Security Outfit is not Different From Hisbah, Civilian JTF, Ekiti State Governor, Dr Kayode Fayemi says the newly floated South West security outfit code named Operation Amotekun, was conceived in response to the yearning by the citizenry for a safer community. He also dismissed the view that the outfit would be in conflict

…Say the Security Outfit is not Different From Hisbah, Civilian JTF,

Ekiti State Governor, Dr Kayode Fayemi says the newly floated South West security outfit code named Operation Amotekun, was conceived in response to the yearning by the citizenry for a safer community. He also dismissed the view that the outfit would be in conflict with the Police.

Reacting to the position of Mr Abubakar Malami, Attorney General of the Federation that the outfit is illegal, Fayemi in an interview on Daily Trust TV, said the issue now should not be about whether the Federal Government or Governors can misuse Police or any security outfit. Power unrestrained, according to him, is always misused. “That initiatives are springing up points to the fact that citizens are not happy with the security situation in the land.”

He argued further:

“How will Amotekun be in conflict with the Police? Those who have obsession with Governors should declare their interest. Does the Federal Government not misuse the Police in  2014? I was a sitting Governor, I had immunity; I was assaulted. Go into history books. What we should be talking about is how to make sure the security institution is accountable within the frameworks of democratic control.

“It is not about whether Federal Government or Governors can misuse Police or any security outfit. Power, unrestrained is always misused. That different initiatives are springing up points to the fact that citizens are not happy with the security situation in the land.

“Governors have a duty and responsibility that are spelt out in the Constitution: The security and welfare of the citizens should be their number one priority. So, if people in my own area of jurisdiction are saying ‘we don’t know what you are doing’, should something not be done? We are funding Police, we are buying vehicles, we are buying security gadgets, we are paying allowances, yet we don’t get enough security.

“There is nothing unique about what we are doing. I am glad that Governor Lalong said ‘we haven’t seen the details of what you are doing but we are working on a similar arrangement in our own area…’

“Amotekun is a confidence building measure to include our people in the community policing arrangement. Even the Police Act encourages what is called Police Constabulary. There is nothing we are doing that is new. Yesterday, Governor Zulum was handing over vehicles to the Military, Police, Civilian JTF.

“JTF is considered relevant in the North East because the members know the people, they understand the terrain, they have more security intelligence than even the Police because they live among the people. Boko Haram members are not from outer space. What we are doing is not an exception at all. We will not allow Amotekun to be used as a machinery of oppression against the people,” he said.

In declaring the Operation Amotekun illegal, Mr Malami, a Senior Advocate of Nigeria said the security and defence of the country are within the exclusive duties of the Federal Government.

He said no state government, whether singly or in a group has the legal right and competence to establish any form of security organization or agency for the defence of Nigeria or any of its constituent parts.

The Justice Minister said the law will take its course on any group or association linked with Operation Amotekun.

He also expressed regrets that his office was not consulted for legal advice by the proponents of Operation Amotekun.

Malami made the Federal Government’s positions known in a statement through his Special Adviser on Media and Public Relations, Dr. Umaru Gwandu.

The statement reads:: “The Federal Republic of Nigeria is a sovereign entity and is governed by laws meant to sustain its corporate existence as a constitutional democracy. It is a Federation of states, but with the Federal Government superintending over matters of national interests.

“The division of Executive and Legislative authority between the Federal and State Governments has been clearly defined by the Constitution of the Federal Republic of Nigeria 1999 (as amended).

 “It is against the same background that matters relating to the peace, order and good government of the Federation and in particular, the defence of the country, are enshrined in the Exclusive Legislative List. The Second Schedule in Item 17 deals with defence.

“This is a matter that is within the exclusive operational competence of the Federal  Government of Nigeria. No other authority at the state level, whether the Executive or Legislature has the legal authority over defence.”

Faulting the setting up setting up of Operation Amotekun, the AGF said the law will take its course on any groups or associations linked with the outfit and added: “The setting up of the paramilitary organization called “Amotekun” is illegal and runs contrary to the provisions of the Nigerian law. The Constitution of the Federal Republic of Nigeria 1999 (as amended) has established the Army, Navy and Air Force, including the Police and other numerous paramilitary organisations for the purpose of the defence of Nigeria.

“As a consequence of this, no State Government, whether singly or in a group has the legal right and competence to establish any form of organization or agency for the defence of Nigeria or any of its constituent parts.

“This is sanctioned by the provision of Item 45 of the Second Schedule of the Constitution of the Federal Republic of Nigeria (as amended) authorizing the Police and other Federal government security services established by law to maintain law and order.

“The law will take its natural course in relation to excesses associated with organization, administration and participation in “Amotekun” or continuous association with it as an association.

“Finally, it is important to put on record that the Office of the Attorney-General and Minister of Justice was not consulted on the matter. If it had, proper information and guidance would have been offered to ensure that Nigeria’s defence and corporate entity are preserved at all times,” the statement said.

Elder Statesman, Mr Afe Babalola who disagrees with the AGF on the status of Operation Amotekun, says “On the contrary, it is absolutely constitutional and legal.”

Babalola, also a senior Advocate of Nigeria (SAN), argues that “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 lives and properties. Indeed without protecting the right to life and property, no other right can be exercised as one has to be alive to enforce other rights as guaranteed in the Constitution.

“The Nigeria Police does not enjoy exclusive jurisdiction when it comes to the protection of lives and property. As a matter of fact, in many parts of Nigeria, various outfits such as Civilian JTF, Hisbah Police, Vigilantes have been performing the duty of protecting lives and properties. There is nowhere in the Police Act where a citizen is prohibited from being vigilant to protect his life or property either personally or together with other citizens.

“Citizens of Nigeria have always enjoyed a right to effect what is known as a citizen’s arrest where any person is found to have committed an offence before handover to the Police for prosecution. In addition, private citizens also may in certain circumstances prosecute persons who have committed crimes. Thus in Part V of the Criminal Code Act S.275 which provides as follow: “it is lawful for any person who witnesses a breach of the peace to interfere to prevent the continuance or renewal of it, and to use such force as is reasonably necessary for such prevention and is reasonably proportioned to the danger to be apprehended from such continuance or renewal, and to detain any person who is committing or who is about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give him into the custody of a peace officer or police officer…”.

“A communal reading of sections S.272/273 Criminal Code will reveal that: a person may arrest a person who has committed an offence and prevent his escape.

“Neither the Constitution in Sections 214-216 nor the Police Act in Section 10 gives the Police an exclusive duty to secure lives and properties.

“All the above support the establishment of the Amotekun which has been established to give an official teeth to the provision of the Criminal Code which allows private citizens to arrest and detain offenders and bandits and to hand them over to the Police.

“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,” Babalola said.

Human Rights Lawyer, Mr Femi Falana also concurs that the outfit is legal.

“Before the official launch of Amotekun at Ibadan, Oyo State last week, the Inspector-General of Police, Mr. Ibrahim Adamu held a meeting with the South West Governors represented by Gov Kayode Fayemi of Ekiti State. At the end of the meeting, the Police endorsed the security initiative,” Falana, also a Senior Advocate of Nigeria (SAN) explained..

“By virtue of section 318 of the Constitution, the word “government” is said to include the Government of the Federation, or any State, or of a local government council or any person who exercises power or authority on its behalf.

“Thus, through the Inspector-General of Police, the Federal Government has ratified the establishment of Amotekun. Therefore, the statement of the Attorney-General of the Federal Government that he was not consulted before the establishment of Amotekun is totally uncalled for and ought to be ignored by the South West Governors.

“With respect, Mr. Malami’s purported proscription of Amotekun is hypocritical and discriminatory on the grounds that the Civilian JTF operating in Yobe and Borno states is constituted by 26,000 well armed volunteers who have been assisting the armed forces to combat terrorism in the north east region. Similarly, the governments of Kano, Katsina, Zamfara and Nasarawa states have established the Hisbah Commission. 

“It is common knowledge that the Hisbah operatives in Zamfara state recently arrested a policeman who was alleged to have been caught in the company of three women. The Lagos State government has equally established the Neighbourhood Watch to assist the Police and other security agencies in protecting the life and property of every person living in Lagos.

“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 Other 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. In Attorney-General of Anambra State v Attorney-General of the Federation (2005) 9 NWLR (Pt 931) 572 the Supreme Court held that, “The Constitution in section 215 subsection (1) clearly gives the Governor of Anambra State the power to issue lawful direction to the Commissioner of Police, Anambra State in connection with securing public safety and order in the State.”

“In Inspector-General of Police v ANPP  (2008) 12 WRN 65 it was held by the Federal High Court that Police permit for rallies was illegal and unconstitutional and that the Governor is the appropriate authority who may delegate powers under the Public Order Act to a Commissioner of Police for the purpose of convening any meeting or rally. It was further held that the Inspector-General of Police cannot exercise any power under the Act. The decision was upheld by the Court of in All Nigeria Peoples Party & Ors. v. Inspector General of Police (2008) 12 WRN 65.

“As tribunal of enquiry is not provided for in either the Exclusive or Concurrent Legislative List it is a residuary matter. Hence, in Chief Gani Fawehinmi v. Ibrahim Babangida (2003) 12 WRN 1, the Supreme Court held that the power to set a Tribunal of Inquiry is vested in state Governors and that the power of the President to institute a commission of enquiry under the Tribunal of Enquiry Act is limited to the Federal Capital Territory.

“In view of the aforesaid decided cases of our courts, the Federal Government does not have exclusive control over law and order in any of the 36 states of the Federation. No doubt, Mr. Malami has anchored his controversial legal opinion on section 227 of the Constitution which provides that “No association shall retain, organise, train or equip any person or group of persons for the purpose of enabling them to be employed for the use or display of physical force or coercion in promoting any political objective or interest or in such manner as to arouse reasonable apprehension that they are organised and trained or equipped for that purpose.”

“Since Amotekun is not an outfit set up by South West Governors to harass or intimidate political opponents, it cannot be prohibited under section 227 or any other provision of the Constitution. In other words, the Constitution has not prohibited the establishment of security outfits for the defence of the people of Nigeria.

“However, if Mr. Malami is convinced that his position is backed by law, he should approach the Supreme Court to test the constitutional validity of Amotekun. Meanwhile, the governments of Ekiti, Ondo, Osun, Ogun and Oyo states are advised to ignore Mr. Malami’s purported proscription and proceed to enact the necessary laws similar to the Neighbourhood Watch Law of Lagos State,“ Falana said.

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