Constitutionalism: Decentralisation of police powers in a federal structure

A quote commonly, albeit incorrectly, ascribed to the 1921 Nobel Prize winner, the physicist, Albert Einstein, affirms that insanity is doing the same thing over and over and expecting different results. The inference suggests the converse apprehends a logical truism. That is, sanity entails doing things differently and securing different results. Why is this relevant? Because decentralised police powers in federal structures, accords with democratic accountability and brings government closer to the people, from whom sovereignty truly emanates.

This article reviews the constitutional underpinnings of policing powers, reviews the arguments for and against decentralisation, policing models in progressive democratic countries operating federal models, and advances the case for devolution of police powers in Nigeria. The backdrop to this is the heightened state of insecurity, terrorism, kidnapping and serious criminality across all states of the country.

Some examples of the latter are summarised for context. In the month of May 2022 alone, David Sunday, a sound engineer, was lynched by suspected motorcyclists in Lagos; a college student, Deborah Samuel, was attacked and immolated by her supposed school mates, who constituted themselves into a quartet of accusers, judges, jury and lynch 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. Worse still, terrorists have threatened to summarily execute the 62 surviving kidnapped victims of the Abuja -Kaduna train attack of March 28, 2022 unless their demands are met! There are more pernicious examples of the breakdown of law and order nationwide, however, the point is made.

Working collaboratively with other security agencies, the vision of the Nigeria Police Force is to “make Nigeria safer and more secure for economic development and growth; to create a safe and secure environment for everyone living in Nigeria.” That vision crystallizes the aspirations of the Nigeria Police Force Act 2020, which aims to provide an effective police force, which accords with the norms of accountability, freedom, protection of human rights and transparency.

Self-evidently, the policing status quo, even with the best will, patriotic and committed officers, is significantly constrained. Limited and overstretched resources, low morale and poor pay are just some of the challenges officers routinely encounter. They simply cannot be everywhere! Interpol reports that in 2016, the Nigeria Police force had a staff strength of approximately 371, 800 (with aspirations to increase that number to 650,000), or an estimated ratio of 1:539 (or one officer to five hundred and thirty-nine citizens). Lagos State alone, with a population of circa 20 million inhabitants was policed by approximately 30,000 officers an estimated ratio of 1:666 (or an officer to six hundred and sixty-six inhabitants). Barely enough, when juxtaposed with officers on administrative duties, secondees, those on personal protection and VIP duties.

Comparatively, New York with a population of approximately 19, 095, 300 is policed by 60,000 officers (uniformed and otherwise). That’s an estimated ratio of 1: 318 (or an officer to three hundred and eighteen inhabitants). The disparity is obvious in the case of New York, which is cited given demographic similarities with Lagos.

Like America, Nigeria operates a presidential system of government wherein the constitutional doctrine of separation of powers, with the executive, judicial and legislative arms of government, operating on a quasi-independent basis, is normative. The president in both countries heads the executive arm of government at federal level, whilst the governor heads the executive arm at state level in both countries. Mayors head municipalities in America. Section 5(1)(a) of the 1999 Nigerian Constitution (as amended), stipulates that the President heads the executive arm of government at federal level; whilst, section 5(1)(b) vests executive powers of the state in the Governor.

The 10th Amendment of the U.S. 1789 Constitution, ratified in 1791, stipulates that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.” Police powers in America, are not delegated powers to the Federal Government in America, and, are within the jurisdictional purview of States. Germany, a democratic federation operates state policing too. The rationale is simple. It is an eloquent manifestation of the government of the people, by the people and for the people – the narrow meaning of democracy- in that, decision making and policing powers; are determined by states and municipalities headed by freely elected by the citizens.

Practically, it makes sense that criminal investigations, intelligence gathering and law enforcement are undertaken, with effective, and nimble overlaps, with federal security agencies, by local folks who, in all probability, are reasonably more conversant with the nooks and crannies of their local terrain by the very fact that they reside therein. Besides, power should not be over-centralised in any Federal Government: after all, absolute power corrupts absolutely.

Also, checks and balances on police powers at state level, are regulated by constitutionally protected rights for individuals’ civil liberties. Example; section 1 of the U.S. Constitution (14th Amendment) establishes that: “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Because the Constitution is the supreme law, States cannot ride roughshod over citizens’ rights. Arguendo, the U.S. model achieves a nuanced and rational balance with States exercising jurisdiction in Police powers.

Section 4, subsection 45, Part 1 of the Second Schedule of the 1999 Constitution defines “Police and other government security services established by law” as an exclusive list item, strictly within the legislative competence of the Federal Government.

Now, 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.”

This provision begs several questions. Of what purposive effect are these provisions, when a State Governor, the head of the government at State level, cannot discharge his/her overriding constitutional duty as enshrined in section 14 (b) of the Constitution supra? The primary “security and welfare of the people” obligation imposed on “government” implicates the head of Government at State level too. To the extent that it does, it surely implies the means of enforcing the said “security and welfare of the people.” How then is a Governor, democratically elected by the people, supposed to do that without exercising jurisdiction in policing powers at State level? And especially now, given the extremely precarious state of insecurity besieging all states of the country? Of what use is a State Governor’s role as chief security officer in his State, when he controls no security apparatus? Why should a State Governor traverse overlapping layers of federal bureaucracy to address a desperately urgent security crisis on his patch?

Consider the U.S. State California. The democratically elected Governor, is lawfully empowered to declare a state of emergency and exercise “complete authority over all agencies of the state government and the right to exercise all police power vested in the state.” Simply, if there is a major security threat in California, he deals with it dynamically and instantly. The material point is action to safeguard lives and property of citizens.

Critics of decentralisation of policing powers to States, contend that it risks concentrating too much power in the hands of governors on the one hand, and that it could be used against political opponents. However, are these contentions sustainable upon robust forensic examination? The answer is no on three counts. One, like the 1798 US Constitution, the 1999 Constitution is the supreme law: s1 (1) therein establishes that: “this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”.

Two, Chapter IV, specifically sections 33, 34, 35, 36, 37, 38, 39 through 43 inclusive, of the Constitution affords citizens the right to life, dignity of the human person, personal liberty, fair hearing private and family life, freedom of expression et al, subject to exceptions. Therefore, fundamental rights embedded in the supreme law, the 1999 Constitution, affords necessary legal protection to citizens, against any attempt by a State Governor, to overreach his authority relative to the exercise of any potential Police powers at state level. Three, a State Governor who overreaches his powers can be impeached by virtue of section 188 (1) and section 188 (11) of the 1999 Constitution.

In the final analysis, the Nigeria Police, is centralised with strategic, de facto operational command and control ultimately overseen by the overall head, the Inspector General of Police. Police Commissioners at State level, (supported by local commanders and officers) are responsible for operational control in their respective states, but are ultimately answerable to the Inspector General of Police.

To consolidate its achievements, notwithstanding the enormous security challenges confronting the country, my recommendations are:1.) a constitutional amendment removing Policing powers from the federal exclusive legislative list and affording Governors full powers to run State police forces, whilst working collaboratively, with federal security agencies; 2.) for each State to develop a security trust fund actively supported by corporate organisations and well-meaning individuals; 3.) to brigade quasi-security and security organisations like Amotekun, Civil Defence and Neighbourhood Security Corps into well-trained and fully-fledged security outfits, to help proactively address the heightened insecurity and terrorism confronting the country; 4.) make the latter democratically accountable to the States; 5.) create employment and retraining opportunities for unemployed and underemployed youths roaming the streets.

To finish where I started, one definition of insanity is doing the same thing over and over and expecting different results. The whole question of policing at State level calls for fresh thinking, demonstrable political will and action now.
Ojumu is Principal Partner at Balliol Myers LP, a firm of legal practitioners in Lagos, Nigeria.