Is Operation Amotekun Illegal?

By Sunday Isuwa

Since the declaration as illegal of a paramilitary organisation code named “Amotekun” by the federal government, there have been several reactions.

The operation Amotekun was recently launched by South West governors namely Lagos, Ogun, Oyo, Ondo, Osun and Ekiti, as a security formation to tackle the problem of insecurity within the region.
This collaboration, tagged Operation Amotekun, according to them is expected to complement the efforts of the regular police force in the area of combating kidnapping, armed robbery, as well as herdsmen and farmers contentions.
The establishment of this security outfit which has been widely applauded by the southerners and Nigerians at large, to many, is an attestation of the failure of the current security system at bringing about the needed safety of lives and property in line with the fundamental objectives and principles of state policy as captured in Chapter II, Section 14(2b) of the Nigerian Constitution.
The outfit officially launched last Thursday, January 9 , 2020 at the Oyo State governor’s office, State Secretariate, Agodi, Ibadan is  to among other things help tame  the disheartening situation of insecurity which assumed a frightening height with the painful murder of the daughter of the Afenifere leader, Reuben Fasoranti, by yet-to-be identify gunmen along Ore road.
Olufunke Olakurin, was said to have been shot while on her way to Lagos by masked hoodlums after a visit to her father in Akure on June 23, 2019.
Her killers are yet to be found while investigations into the incident by the police is yet to yield positive result.
Even though insecurity is ravaging every part of the country, other deadly activities in the South West which many believe to have prompted this move dates back to 2015,  with the kidnap of former Secretary to the Government of the Federation, Chief Olu Falae, by suspected herdsmen right on his farm in Akure.
President Muhammadu Buhari had on recieving informationn about his ordeal ordered the Inspector General of Police (IGP) to rescue him unhurt. In spite of the involvement of the top echelon of the police hierarchy, the old man still parted with N5 million to regain his freedom. The criminals have been arrested and now standing trial.
Recall also that the Ondo State Governor, Rotimi Akeredolu, at the time also told his rather interesting story of his encounter with the armed men, who attempted to halt his convoy and attack him, but he managed to escape.
Shockingly, barely some days after the launch of Amotekun, the federal government through the office of the Attorney General of the Federation declared the outfit as illegal , insisting that Nigeria is a sovereign entity governed by law.
Abubakar Malami
Abubakar Malami
AGF harped that the Constitution of the Federal Republic of Nigeria 1999 (as amended) has

established the Army, Navy and Airforce, including the Police and
other numerous paramilitary organisations to defend the nation.

A statement issued by the SA Media and Public Relations officer in the office of the Attorney-General of the Federation and Minister of Justice, Dr Umar Jibrilu Gwandu, said the Federal Republic of Nigeria is a sovereign entity and is governed by laws meant to sustain its corporate existence as a constitutionald democracy.

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“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 of Government of Nigeria. No other authority at the state
level, whether the executive or legislature has the legal authority over defence.”

“The setting up of the paramilitary organisation 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 Airforce, including the Police and
other numerous paramilitary organisations for the purpose of the
defence of Nigeria,” the statement said.

Various groups including National Association of Nigerian Students (NANS), Yoruba socio-cultural group, Afenifere, Southern and Middle Belt leaders amongst several others have slammed the Attorney General’s statement, insisting the operation has come to stay.

 They questioned the rationale behind the existence of a Sharia police, Hisbah operating in Kano state and the Civilian Joint Task Force (JTF) operating in some states especially Borno, where they help in tackling insurgency.

Except for the Civilian JTF which has no legislative backing, the Sharia police, Hisbah, operating in Kano State, is a creation of the State House of Assembly that was formalised in 2003 and gazetted.

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Is Operation Amotekun Illegal ?

The origin of the office of Attorney-General is usually traced to the thirteenth century when, as King’s Attorney or King’s Serjeant, he was responsible for maintaining the interests of the King in the royal courts.

The first reference to a regular crown counsel appeared in the reign of Henry III when it was recorded that one Lawrence del Brok pleaded for the King from 1253 to 1267.

However, the office appears to have become a fixed institution only after the accession of Edward IV in 1461, when John Herbert (the first person to be called ‘Attorney-General’) was appointed as the King’s principal law officer.

The Nigerian constitution gave the Attorney-General the power  to: 1. Institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act.

2. Take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

 3. To discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

The Attorney General is also empowered to advise on issues of public interest, justice and the need to prevent abuse of legal process.
Sections 174(3) and 211(3) of the 1999 Nigerian Constitution provide that in exercising their prosecutorial powers, the Federal and States’ Attorneys-General ‘shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.

On the public interest, national security and the rule of law, the relevant consideration under the common law has long been the public interest.

It was not out of place that the chief law officer in Nigeria drew the attention of the South West governors about the security outfit they set up.
But he should be reminded that government of Nigeria consists of three tiers: Federal government; State governments and Local governments with each the constitution granted the privilege of making laws for it’s good governance.
Under the Nigerian law, the state governor leads the executive branch of the government. This position places its holder in leadership of the state with command authority over the state affairs.
The governor is frequently described to be the number one citizen and the chief security officer of the state.

Article II of the Nigeria constitution vests the executive power of the state in the governor and charges him with the execution of state law, alongside the responsibility of appointing state executive, diplomatic, regulatory, and judicial officers subject to the approval of the Assembly members.

The legislature is referred to as the first branch of government with the executive and judicial arms evolving thereafter. This created a system of limited government, with checks and balances and separation of powers, to prevent any one branch or element from consolidating control.
The president (governor in a state) who heads the executive arm, lawmakers, and the courts who represent the judiciary arm, need the cooperation or consent of one another to take action.
While the establishment of Operation Amotekun has been widely applauded, the fact remains that the action of the South West governors, though with very good intentiom to aid governance by providing security was without a law enacted by the lawmakers, this action thereby, makes operation Amotekun illegal as stated by the Attorney General and Minister of Justice, Abubakar Malami.
To save this security outfit from operating illegally, the Southwest governors needs to sponsor executive bills, private citizens in the respective states can also sponsor  bills or the lawmakers in the affected states can initiate bills to give legal backing to operation Amotekun in the South West.

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