Amotekun: The pitfall of proposed State Legislation by Fisayo Esan Esq.
On Thursday, January 9, 2020, the Governors of Nigeria’s six southwest States of Ogun, Osun, Oyo, Ekiti, Ondo and Lagos, launched the Western Nigeria Security Network called ‘Operation Amotekun’ in Ibadan, the Oyo State capital. Governors Seyi Makinde of Oyo, Kayode Fayemi of Ekiti and Rotimi Akeredolu of Ondo were present at the launch while Governors Gboyega Oyetola of Osun, Babajide Sanwo-Olu of Lagos and Dapo Abiodun of Ogun were absent citing constraining circumstances.
Following the launch, Mr. Abubakar Malami – the Attorney General and Minister of Justice in a statement by his media aide Umar Jibrilu Gwandu stated that “The setting up of the paramilitary organization called ‘Amotekun’ is illegal and runs contrary to the provisions of the Nigerian law,” – that “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 organizations for the purpose of the defence of Nigeria.”. The Minister of Police Affairs, Alhaji Maigari Dingyadi, similarly stated that Operation Amotekun will be unconstitutional if it differs from the support rendered by the Federal Government on security.
The challenge with the declaration by the Attorney General is that there is yet no legal document or instrument which authoritatively speaks to what constitutes Operation Amotekun and one wonders what was considered before the initiative was declared illegal. For the avoidance of uncertainty, there is nothing illegal in what the Southwest Governors have done so far – from the launch of Operation Amotekun to the purchasing of patrol trucks to the handing out of uniforms to Southwest citizens for the purposes of fostering their security and the protection of their lives and property in the region. On what Operation Amotekun is or will be, we can justifiably in the absence of official documentation review the statements made by some of the Governors at the launch of the initiative.
According to Governor Fayemi of Ekiti State at the launch – “Amotekun is a complement that will give our people confidence that they are being looked after by those they elected into office. “So, we do not want this to create fear in the mind of anybody as we are not creating a regional police force and are fully aware of the steps we must take to have state police.“We do not want anybody to misconstrue the concept of Amotekun.” The Southwest Governors adduced rising insecurity in the region, kidnappings and robbery as major reasons for the birth of Amotekun and stated that “As elected leaders, our primary responsibility, according to Section 14 (2) of the Nigerian Constitution 1999 as amended, is the security and welfare of citizens.”. Prof. Banji Akintoye – The leader of the Yoruba World Congress further expatiated that “The people that will work in Amotekun are going to be trained properly by highly educated people for them to relate properly with the police and the army,”
Given the statements of intention above, there is no conceivable basis on which operation Amotekun can be held to be illegal or unconstitutional. Whilst fully aligning with the trite view that Mr. Malami is not a Court of Law to unilaterally pronounce Operation Amotekun to be illegal, it is difficult to see the basis on which his declaration was made or the legitimate basis on which the Courts can be approached to declare the initiative illegal – the law does not concern itself with conjectures.
And for constitutional context, Chapter IV of the 1999 Constitution of Nigeria (as amended) reserves inalienable and irrevocable Fundamental Human Rights to every Nigerian Citizen and it is the primary duty of both the Federal and State Governments to safeguard the sustenance and protection of the rights. A few of these rights are:
o Section 33(1) – “Every person has a right to life and no one shall be deprived intentionally of his life…”
o Section 34(1) – “Every individual is entitled to respect for the dignity of his person and accordingly – a) no person shall be subject to torture or to inhuman or degrading treatment; b) no person shall be held in slavery or servitude; c) no person shall be required to perform forced labour”;
o Section 35(1) – “Every person shall be entitled to his personal liberty ….”
o Section 40 – “Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests”;
o Section 41(1) – “Every citizen of Nigeria shall be entitled to move freely throughout Nigeria and to reside in any part thereof…..”
o Section 42(1) – “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason only that he is such a person:- a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.”
From the constitutional provisions cited above, the self preserving rights of Nigerian Citizens in areas overrun by kidnappings, armed robbery and banditry is unmistakably clear. One would have expected the Federal Government to be eager to collaborate with initiatives such as Operation Amotekun in all regions to boost policing capacity rather than declare them to be illegal without reason.
In any event, by Section 40 – “Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests” Nigerians are free to join or form associations “for the protection of their rights” and Operation Amotekun in the Southwest clearly qualifies as an association for the assemblage of Southwest Citizens to foster and protect their security interests as enshrined in the Constitution. A few of the interests include the Fundamental Human Right to life under Section 33 or the Right not to be tortured nor enslaved under Section 34 or the Right to move freely under Section 41. Without doubt, citizens can come together to protect their rights under Section 40 whether under the auspices of their respective State Governors or not but the Federal and State Governments continue to carry the fundamental duty to ensure that fundamental human rights are safeguarded and protected. The Southwest Governors have only created a platform for the safeguarding and protection of the Fundamental Rights of the Citizens in their States in my opinion and there is nothing illegal or unconstitutional about such an initiative.
Whilst the Hisbah Police, the Civilian Joint Task Force and other vigilante groups in Northern Nigeria are granted free rein to bear arms, they have not come to the attention of the Attorney General. Legally, Section 42(1) compels the Federal Government to ensure that no citizen from any one ethnic group, community or area, is accorded more privileges and or advantages over that enjoyed by others. Instructively, Mr. Malami has not made any pronouncement on the various vigilante or community arm bearing groups in the north which makes his declaration on Operation Amotekun to come across as a political drivel targeted at the Southwest region.
Be that as it may, the genius in the approach adopted by the Southwest Governors is that Western Region Security Network known as Operation Amotekun whilst launched continues to unfurl in documentation, structure and operational modalities. The complementary and immediate non-arm bearing nature of the security initiative makes it incapable of being viewed as illegal and even more difficult to presumptuously approach the Courts to declare the outfit as illegal.
Unfortunately, there have been widespread calls on the Southwest Governors to have their House of Assemblies to pass the Western Nigeria Security Network Law to justify the launch of Operation Amotekun. With due respect, such suggestions are premature and tactless considering that hasty legislation will likely breed incomplete thoughts, errors and irregularities. The Southwest Governors having not done anything wrong constitutionally should take their time in framing, structuring, documenting and disclosing what constitutes operation Amotekun.
The major hurdle on the operation of the security initiative and the only basis on which it can currently and patently be declared to be illegal is where its operatives immediately bear arms and the Southwest Governors are advised to take their time to think through the various operational modalities open to the initiative without any pressure whatsoever. Even if all Operation Amotekun (at the initial phase) achieves is reconnaissance and community watch, it will prove to be invaluable and bring the much needed succor to the beleaguered citizens of the Southwest Nigeria.
In Conclusion, the Southwest Governors should sit pretty on the well timed launch of Operation Amotekun and calmly dictate the official narrative and legal structuring of the outfit. As things stand, where the House of Assemblies are pressured to pass the laws (with the likely flaws that come with hasty passage), the hurriedly passed laws will likely become a pitfall, an unforced error and a most potent tool to set upon Operation Amotekun.
Fisayo Esan is a Partner of Ivy-Law Practice, Lagos
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