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Constitutionalism (4): Imaginative thinking in police devolution

By ‘Femi D. Ojumu
10 August 2022   |   3:47 am
Nature abhors a vacuum is an ancient Aristotelian truism which still retains its potency. That truism is entirely consistent with the order of nature such that a vacuum will be filled by natural forces, terrestrial powers or indeed, the commandments of existential necessity.

AFP PHOTO / Quentin Leboucher (Photo credit should read Quentin Leboucher/AFP via Getty Images)

Nature abhors a vacuum is an ancient Aristotelian truism which still retains its potency. That truism is entirely consistent with the order of nature such that a vacuum will be filled by natural forces, terrestrial powers or indeed, the commandments of existential necessity. Afterall, there is no such thing as an ad infinitum abdication of responsibility in the realms of human survival in normal circumstances, to cite an example.

That’s the context in which this piece is written today; about the current state of anarchy, breakdown of law and order, terrorism in swathes of Nigeria – a supposedly secular country, with bold, or depending on one’s viewpoint, tepid aspirations to constitutional democracy, upholding the rule of law and the lasting security of lives and property.

The reign of terror
There are overwhelming examples justifying the claim of anarchy and terrorism across cities and the country’s hinterlands, at the behest of Boko Haram, ISWAP, and so-called “unknown gunmen.” These include, but are certainly not limited to the St. Francis Roman Catholic Church, Owo, Ondo State massacre at the early morning mass on Sunday, June 5, 2022. This resulted in the deaths and injuries of scores of people widely reported in the national media and; the killing of no fewer than 5,000 persons in Benue State since 2015, according to the Punch newspaper of August 6, 2022. The grim statistics according to the International Centre for Investigative Reporting (Nigeria) on July 3, 2022, resulted in the killing of 34 soldiers, 8 mobile policemen and 6 locals in Shiroro, Niger State.

Still in 2022, a college student, Deborah Samuel, was attacked and immolated by her supposed school mates, who arrogated themselves the powers of accusers, judges, jury and execution mob, in Sokoto over comments she was alleged to have made; Fatima Jubril and her young children, were brutally murdered in Anambra by unknown gunmen; over 50 persons were killed in Zamfara State by armed bandits; Boko Haram and ISWAP continue to terrorise the Northern parts of the country.

Even worse, terrorists linked to those who killed and kidnapped some passengers of the Abuja -Kaduna train attack on March 28 2022, launched a brazen attack on Kuje Prisons, Abuja, Nigeria’s fortress capital city; 300 inmates escaped in the attack leaving a trail of deaths, destruction and mayhem on July 5, 2022.

One, of what purposive intent is a pacificist plan when innocents are being systemically killed by terrorists in Nigeria? Two, given the patently obvious inability of the combined forces of the weapons bearing agencies notably the Army, Police; Directorate of State Security, Civil Defence Corps, Immigration, Customs, to enduringly safeguard lives and property, isn’t the time ripe for immediate devolution of Police powers to states and local authorities? Three, isn’t the overwhelmingly insufficient capacity of the said agencies to contain the terrorist threat itself evidence of a failure of strategy?

Four, does the defence of fighting terrorists using non-kinetic “precision” operations stand up to scrutiny given the quantum of deaths, destruction and displacements on innocent Nigerians embarking upon their daily activities? Wouldn’t the long overdue decentralisation of policing powers to states and localities enable them better confront the existential threats they face in their communities armed with actionable local intelligence, logistical support and the right weapons? Finally, is this not the time for demonstrable action by parliamentarians to address this issue head on, or should they engage on a long recess, oblivious to the yearnings of innocent, defenceless, voiceless Nigerians for security and welfare?

Legal arguments
By virtue of section 4, subsection 45, Part 1 of the Second Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended) “Police and other government security services established by law” are an exclusive list items, falling strictly within the legislative competence of the federal government.

Plus, section 14 (a) of the 1999 Constitution affirms that sovereignty belongs to the people of Nigeria from whom government derives all its power and authority. Fundamentally, section 14 (b) therein declares that “the security and welfare of the people shall be the primary purpose of government.”

These two provisions are inherently contradictory. On the one hand, section 4 (45), part 1 of the 2nd Schedule supra squarely embeds police powers under the exclusive federal legislative competence. On the other hand, s.14 (a) of the Constitution implicates the head of government at state level, that is the governor, by any reasonable definition, in situating the “security and welfare of the people” as the overriding objective of government.
Now then, of what use is a governor if he cannot exercise this clear constitutional provision in ensuring the “security and welfare of the people” within his jurisdiction?

As a function of logic, a constitution is man-made and it is made for man. Man is not made for any constitution. It follows that if a constitution, unwittingly, creates, enables or facilitates a perverse outcome through a strict, mechanistic application, which harms the welfare of citizens, one does not require the intellectual faculties of Albert Einstein to figure that such a constitution must be changed by those charged with the responsibility thereto; parliamentarians. Beyond that, the operators of the constitution, for example, the executive arm of government, given the Nigerian dynamics illustrated above, also have a moral imperative to seek to change the said constitutional provisions to the extent of its rigidity and fitness-for-purpose deficits.

Why? Nigerians should not, and will not, on recent evidence, wait, an eternity for a rapid change in police powers to enable states, regions, localities to establish security networks before they act to defend themselves from marauding terrorists who kill, kidnap and rape innocents at will. How many more people need to be killed and maimed before serious action is taken? Afterall, progressive governance is underpinned by effective leadership, which not only envisions, but purposefully, facilitates demonstrably visible security and welfare of its citizens and inspires their enduring confidence.

Current realities
Unsurprisingly, the inability of the Federal Government to consistently safeguard the lives and welfare of citizens has not only prompted the agitation for greater devolution of police powers but, it has increased that agitation too. Already, a state security outfit or “de facto police”, Amotekun, is active in Ondo State to aid the fight against incessant terrorist activities. Similar state and/or regional security outfits are active in South Eastern Nigeria, under the auspices of Ebube Agu. In August 2022, the Benue Volunteer Guards was launched by the state government. Hitherto, the Lagos State Neighbourhood Safety Corps (LNSC) was established in 2016 and is active in all the state’s local 57 local government areas/local community development areas.

The rationale for these “de facto state police” outfits is the painful reality that the configuration of the current national security architecture, reinforced by a unitary command and control structure, with headquarters in the nation’s capital, Abuja, has proven too unwieldy. To that extent, it is patently incapable of dealing with the asymmetric complexity of multidimensional terrorist threats confronting states, regions and localities.

Analysis of these outfits’ modus operandi in no way suggests that they breach the provisions of the 1999 Constitution (as amended). LNSC, for example, aims inter alia to assist the established police force to utilise their local knowledge to gather intelligence, disrupt criminality and report suspicious activities community policing whilst enhancing community cohesion and peaceful coexistence. Implicit in the model is complementarity.

Summing up, the question arises as to whether these state and regional security outfits are proper pragmatic responses to the scale and complexity of the threats confronting Nigeria, given the severe limitations of the established federal security apparatus (army, air force, navy, civil defence corps, customs, immigration etc.) to ending the terrorist campaign against the country? The answer is straightforward. They are indeed pragmatic responses to the yearnings of defenceless citizens for new institutions and protocols to address the ever -widening chasm between their legitimate expectations of security and welfare, and the failure, despite at times heroic efforts, of the federal security agencies to do so on a consistent basis.

Nevertheless, although these pragmatic responses are quite necessary, they are insufficient to even begin to scratch the surface of the problem. Terrorists operating in Nigeria are armed with highly sophisticated modern rocket propelled grenades, ant-aircraft guns, explosives, machine guns et al. If the established federal security apparatus, with presumably more sophisticated weapons has, thus far, failed to tackle the terrorist onslaught, what hope does a humble regional/state neighbourhood security outfit armed with bells and whistles, pick up vans, batons and pre-historic dane guns have? None!

Likewise, state governors receive hypothecated allocations from the Federal Government to address issues pertaining to security. However, this is nothing but a pyrrhic victory for devolution of police powers on several counts. One, the unitary command and control structure of the Nigerian Police Forces means that a state police commissioner is not answerable to a state governor. Rather, the state police commissioner answers to the Inspector General of Police based in Abuja, the nation’s capital, often hundreds, if not thousands, of miles away. The same lacuna applies to the control vs power dynamics between state governors and local army commanders and heads of other paramilitary agencies. Clearly, there is a bureaucratic bottleneck in that model which impedes operational efficiency.

Two, even if a state governor in the legitimate exercise of the constitutional guaranteed obligation to safeguard the security and welfare of citizens within a given jurisdiction, pursuant to section 14 (b)of the 1999 Constitution (as amended), desires to purchase sophisticated weapons and explosives to confront terrorists operating in his state, such a governor cannot do so upon a strict interpretation of the said constitution. However, legal scholars and concerned citizens differ on whether it is proper for a governor to adopt a do-nothing stance and spinelessly watch a murderous onslaught against innocent civilians by terrorists.

Three, the executive and legislative arms of government at federal level have, thus far, failed to fully grasp the seriousness of this issue and consequently accord it the ultra-high priority it rightly deserves in policy and legislative terms.

Based on the foregoing, it is submitted that parliamentarians return to the National Assembly without further delay to address this desperately urgent and necessary issue of devolution of police powers to states, regions and localities; and, in particular, to seek to review the monopoly of arms, ammunitions and explosives within the exclusive legislative competence of the federal government, pursuant to the provisions of section 4, subsection 3, part 1, Schedule II, of the 1999 Constitution (as amended). Whilst this does not amount to a silver bullet or cure all panacea, it nevertheless, empowers state actors a complementary option to address the scale of the terrorist threat.

To finish where I started: nature abhors a vacuum. It may only be a question of time before the agitation for devolution of police powers, underpinned by the existential necessity to bear arms to defend innocent people assumes a more heightened dimension. Now is the time for real imagination, serious political will and resolute action. Verbum sat sapienti!