Insecurity and the right to bear arms
One of the cardinal responsibilities of government is the safeguard of lives and properties, provided under Section14 (2) (b) of the 1999 Constitution as amended. So paramount is this responsibility that the entire economic, social and political progress of any society depends on it.
Nigeria for the past decade has witnessed unprecedented amount of bloodshed, destruction of properties and displacement of people from their native homes and places of business. The level of insecurity today is unprecedented in the history of Nigeria. Few states or geographical location in Nigeria which have witnessed enormous insecurity lately, which could be ethnic, religious and land motivated killings are Benue, Plateau, Taraba, Ebonyi, Enugu, Southern Kaduna, Enugu, Asaba, Anambra and Nasarawa
Insecurity has raised serious questions about the preparedness and efficiency of all law enforcement agencies in tackling crime, in addition to this concern is a paramount question “Should responsible citizens bear arms for the safety of their lives, families and community?”
To answer this question, it is imperative to explore the underlining principles of self-defence or private defence, as many would call it. Historically Africans and the nations in Nigeria before western colonialism allowed individuals to bear arms, be it farming or hunting tools or war weapons. This could be found mostly on male members of the community who belong to age grades. Also, male age grades in communities had access to sophisticated tools or components for manufacturing weapons within their community, which could be used for self-defence or tribal wars.
Historically, some towns or states in Nigeria were known for the local manufacture of guns, one of those natives are the ancient Awka people in the present-day Anambra State. The Blacksmiths in Awka at the time did excellent hand-made guns for wars, protection and as status symbol for young men in their various age grade groups. In the Western hemisphere, particularly America, the second amendment to the United States Constitution documented this principle. It provides thus, “A well-regulated militia being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed”. This provision laid the foundation of the modern-day principle of self-defence in America, so sophisticated is this principle that some states allow citizens to openly carry weapons without restraint.
However, that of Nigeria is different. Nigeria became independent in 1960, with it came a Constitution. Interestingly the Exclusive list part I Item 11 provided for defence while the concurrent list Part II Item 2 provides for arms and ammunition. This development was from the fact that at the time local ownership of arms was prevalent considering that conservative African life style, tradition and the culture of ownership of guns was much in vogue and communally acceptable as well as the fact that the regional government had relatively more powers with respect to issues that bother on livelihood and welfare of citizens. This meant that the State legislatures could make laws with respect to issues not covered by the federal legislation with respect to gun legislation.
However, years later came the 1999 Constitution. The Second Schedule Part Item 2 and 17 of the 1999 Constitution provides for arms & ammunition and defense. These two items were placed under the Exclusive list unlike the 1960 Constitution. Going further, the 1999 Constitution guarantees every citizen the right to life under Section 33 (1). It can be validly argued that beneath the right to life is the right to protect your life from harm or unlawful attack with reasonable force. Therefore Section 33 (2) (a) gives private citizen the authority to use reasonable force to defend him or herself from unlawful violence or for the defence of property. This is the right to self-defence. On the 12th of August 2020 the Governor of Benue State, Mr. Samuel Ortom made a passionate request from the Federal Government for responsible Citizens to bear AK47 rifle. This request raised mixed reactions among many citizens. However, his comment was not out of place or far reached. Nigeria accounts for 70% of illegal guns in West Africa according to United Nations report in August 3rd 2016, hence the level of insecurity. This raises serious questions on insecurity and how to curb gun proliferation in Nigeria. Since there is the right to self-defence, is there any right or privilege to bear arms in Nigeria in furtherance of self-defence. The answer can be gleaned from the Firearms Act.
Section 2 of the Firearms Act defines firearms as any lethal barreled weapon of any description from which any shot or bullet or other missile can be discharged and includes a prohibited firearm, a personal firearm and a muzzle loading firearm of any of the categories referred to in part I, II and III respectively of the schedule to the Act and any component part of any firearm. Part I refers to prohibited firearms such as artillery, rockets weapon, bombs and grenades, machine guns, revolvers. No person is allowed to bear a prohibited firearm in his possession except in accordance with a license granted by the President acting in his discretion.
Part II of the firearms Act contains Personal Fire arms such as Shotguns other than- automatic and semi-automatic shotguns, Sporting rifles, Air guns, Air rifles or Air-pistols etc. No person shall have in his possession these firearms except with a license granted by the Inspector-General of Police, in accordance with principles decided upon by the National Council of Ministers.
Part III contains Dane-guns – unrifled and muzzle-loading, Flint-lock guns etc., which can be owned ordinarily except it is prohibited by the Inspector General of Police, but interestingly when an application for license for it is made it shall not be refused except only on these five reasons (a) the person is below 17years, (b) unsound mind (c) not fit because of defective eyesight (d) a person of intemperate habits (e) has during the previous five years been convicted of an offence involving violence or the threat to violence.
This simply means that guns under part citizens can own III without approval from any authority, however where there is a ban or prohibition on it and an application is made such license must be issued once these five reasons are not barriers. Some jurisdictions have acknowledged defence to property. In South Africa, the case of In Ex parte Minister of Justice: In re S v Van Wyk (1967) (1) SA 488 A and 1967 84 SAJL 123.) is very instructive. The defendant had tried numerous methods of ending hoodlums from burgling his shop. With the knowledge of the South African police, he rigged up a shotgun, which would be triggered by any hoodlum entering the shop through one of his windows or tampering with his groceries in the shop. The gun was fixated in such a way that it would aim at the legs of the intruder only and he had also placed a notice on his shop door warning of the trap. In spite of this step a man broke into the shop and was fatally shot. At his trial the defendant successfully pleaded private defense and was acquitted.
The court decided that killing in defence of property can be justified in circumstances where no other less dangerous or effective method is available to protect property. According to the court, the test is whether the means of defending the property were reasonable by having regard to all the circumstances, such as the nature and extent of the danger, the value of the property, and the time and place of the occurrence. The value of the property seems an important factor in determining the reasonableness of the defence. With respect to Nigeria, the continued creation of Internally Displaced Persons Camps across States in Nigeria, children not getting proper education as a result of incessant attacks, outbreak of dangerous diseases in the camps and the likelihood of loss of life in the process of destruction of property makes it more advisable for responsible citizens to be armed as well as shooting an assailant on the verge of destruction of property. In this case defence to property ought to be a valid defence.
One of the challenges with the insecurity in Nigeria is that weapons used to commit these atrocious acts are done with weapons under Part I, which are prohibited. The prohibition can be drawn from the fact that they are automatic weapons with capacity for rapid casualty. These bullets of these category of guns have little or less intervals and quick succession when operative. These weapons have remarkable precision and can cover long distance as well as pierce through hard objects or materials. The call by the Governor Ortom in my opinion was for responsible citizen to be able to withstand the firepower of the hoodlums when they are attacked with rifles or prohibited weapons. On the other hand getting license for personal firearms is rigorous, if not banned currently.
Considering the level of insecurity in Nigeria the Firearms Act and its ancillary regulations does not foster nor enable citizens to protect themselves when security agencies fall short of their duties. The Act ought to be amended or supported with polices that are liberal as well as more favorable to the principle of enunciated under section 33(2) (a) of the 1999 Constitution which is the right to kill in defense of oneself or in defense of one’s family or property. Licenses should be made easy for responsible citizens to obtain. For now, the five criteria under the Firearm Act earlier mentioned, is still potent to prevent the abuse of the right to bear arm.
The Federal Government cannot pretend or assume that the war on terror or fight against bandits or unlawful onslaught of innocent citizens will disappear very soon, it is highly unlikely. For now, it can only be contained or managed, such management or containment cannot be complete without the right of responsible citizens to bear arms.
We cannot deny that in the past native and indigenous tribes in present day Nigeria did not bear arms of all sorts during and after the advent of the colonialism. It remained till too much was given aware through legislation. The World is changing with increase in armed conflict and violence. We had the power to protect ourselves as well as bear arms but colonialism destroyed it. We may not have the power to stop the proliferation of arms but it will be tragic if we don’t give responsible citizens the authority to protect their lives, properties and that of their communities.
Chijioke Ifediora is a legal Practitioner and Partner at LawChest Nigeria