By Pascal Ukpaka
As a matter of truth and good conscience, Amotekun is constitutional. However, it is pertinent to make adumbration through the provisions of the law so as to sustain the conclusion that Amotekun is constitutional. It is beyond argument that the constitution is the grundnorm, beyond which there is no law and within which every law acquires legitimacy.
See section 1(3) of the constitution: “If any law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the in consistency be void”.
The three arms of government and the offices occupied by Mallami and the governors in this country, no doubt, are all creations of the constitution. Even the Police Act and the Anti-Terrorism Act, often brandished dismally by the government, are inferior to the constitution, and any provision thereof or any overzealous implementation of any of the provisions thereof that contravenes the provisions of the constitution, shall be declared null and void, with those found liable sanctioned.
The extents of the powers of the Federal and States Governments are lucidly contained in section 4 of the constitution, and the exact items on which only the Federal Government can exercise powers are contained in the exclusive list to be found in the 2nd schedule, part 1,while the concurrent list contains the items on which both the Federal and States Governments can exercise powers ,which can be found in the 2nd schedule, part 11,and any other item not contained in either the exclusive or concurrent list is known as the residual list, and it is only the state governments that can exercise powers on them.
Arms, ammunitions ,explosives and defence are contained in the exclusive list, but security is not contained in either the exclusive or concurrent list, which makes it domiciled in the States Governors’ residual list, but item 45 of the exclusive list contains: ” Police and other government security agencies established by law”, which is not the same as security properly so called ,and such security agencies mean only the security agencies established by the Federal Government and not the ones established by the States Governments Section 4(7) provides:” The House of Assembly of a state shall have power to make laws for peace, order and good governance of state or any part thereof with respect to the following matters, that is to say— (a) ” any matter not included in the exclusive legislative list set out in part 1 of the second schedule of this constitution “, which therefore include security.
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The burning question that one need to ask himself, conscientiously, is whether peace, order and good governance are contained in the exclusive list, and if not, whether the killings and destruction of farms and agricultural products are peaceful and orderly activities and also engender good governance in Southwest or in other regions in Nigeria, otherwise, are the state governments not entitled to make laws on security to take care of them ?
Section 33(1) of the constitution provides that :” Every person has a right to life, and no one shall be deprived of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria “. Now ask yourself ,whether the people killed by herdsmen were actually killed pursuant to execution of sentences of courts in criminal offences in which they were found guilty, and whether the herdsmen were authorized by law to execute those found guilty in the circumstances.
Section 33(2) of the constitution provides the following:” A person shall not be regarded as having been deprived of his life in contravention of this section if he does so as a result of the use, to such extent in such circumstances as are permitted by law, of such force as is reasonably necessary–(a) for the defence of any person from unlawful violence or for defence of property”.
It means that the law allows you to protect yourself or any other person and your property or the property of any other person, and in doing so, you are allowed to kill anyone who comes against you or that other person or property with unlawful violence, so long as you will use reasonable force, and such force is the one proportionate to the one used by the assailant.
Subsection 2 of section 33 does not state that you should not use a stick, knife, gun, rocket launcher, etc.; as it all depends on the weapons used by those unleashing the unlawful violence. The law does not state that you should first obtain a license before you can use any weapon to defend yourself, any other person or property, and the law does not say that you should return the weapon to the Police after killing the assailant or that you should even report the incident to any governmental authority after carrying out the necessary killing.
Should someone talk about arms, ammunition, explosives, defence and security services, then refer him to sections 33(1)&(2) and 4 (7) (a) of the constitution; the latter are exceptions to the former, and that all of them are coexisting as constitutional provisions.
Use of reasonable force against someone using unlawful violence against a person or property entails the use of weapons, and since every person has the right to life, he cannot allow himself or another person to be killed by unlawful violence. Consequently, a citizen has the right not to be deprived of the weapon to use and defend himself and his property. Every citizen has the right to kill anybody who attempts to kill him, kill another person or destroy a property ,whether such property belongs to him or not.
A weapon is the license to self defence and defence of property. Therefore, weapon is the necessary instrument for the prosecution of self defence and defence of property.
For the right guaranteed under section 33(1)&(2) to be meaningful, the right to possession of weapons and the use of those weapons for self defence should not be deprived of a citizen. The right to life and defence of oneself, others and property will be absolutely empty without a corresponding right not to be deprived of the weapons which makes such right to life, self-defence ,defence of others or property possible and effective.
Refusal of the use of weapons will make the enjoyment of the right to life and the concomitant right to the use of reasonable force against unlawful violence impossible. There is no derogation in the constitution which allows the government to withhold weapons from citizens necessary for overcoming unlawful violence.
See section 23 of the Criminal Code, Cap C38, LFN,2004 :”A person is not criminally responsible, as far as an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without an intention to defraud”. In this law, there is no limit to the strength or the type of weapon or the force to be used to assert your right to property, such as farm, forest, farm products houses, cars, etc, as it depends on what the fellow exercising unlawful violence has, and there is nothing prohibiting many people from exercising this right to property jointly if it jointly belongs to them.
Section 26 of the Criminal Code Act provides as follows: “Subject to the express provisions of this code relating to act done upon compulsion or provocation or on self-defence, a person is not criminally responsible for an act done or omission made under circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise”.
The right to defend property, otherwise, known as bona fide claim of right and the right to self-defence, both of which are covered by sections 23 and 26 of the Criminal Code Act ,are legal rights or interests ,and there is no limit to the number of persons that can exercise these rights or protect these interests , and nothing, under the law hinders several persons from exercising these rights jointly. The rights to life and defence of a person or property against unlawful violence guaranteed under section 33(1)&(2) of the constitution are also legal rights and interests ,and there is no limit to the number of persons that can exercise these rights jointly at any one time.
Section 40 of the constitution provides the following: ” Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form and belong to any political party, trade union or any other association for the protection of his interests “.
Amotekun, obviously, was formed for the protection of the legal rights or interests of their members guaranteed under section 33(1)&(2)of the constitution and sections 23 and 26 the Criminal Code Act, and the Governors of the States can set up such security organisation under section 4(7)(a) of the constitution through the laws made by the states houses of assembly.
The issues of right to life, use of reasonable force against. anyone using unlawful violence against life or property, bona fide claim of right and self-defence under extraordinary emergency are not in the exclusive or concurrent list. Amotekun is also protected from disabilities and restrictions from the Federal Government, that may arise as a result of ethnicity, by virtue of section 42 of the constitution, and Amotekun is not in the lower class of purpose and ethics as Hisba, Yan Banga, Civilian JTF or their likes and yet they are allowed to operate freely in Northern Nigeria
Therefore, the constitutionality or, otherwise, the legality of Amotekun is squarely predicated on the provisions of Sections 1(3),4(7)(a),33(1)&(2),40 and 42 of the constitution and sections 23 and 26 of the Criminal Code Act ,and as long as the rights to life, defence by the use of reasonable force against unlawful violence, freedom of assembly, freedom of association and freedom from discrimination are not in the exclusive or concurrent list ,which by implication places them in the domain of the residual list, and in so far as the power to make laws for peace, order and good governance are within the powers of the state government, the National Assembly cannot legislate on them without first amending the constitution to its advantage in those respects, and no legislative resolution of the National Assembly or any executive or administrative act of the Presidency can be lawfully exercised to emasculate the virility of those provisions of the law that inure to the advantage of the Amotekun. Even now, Nigerians can lawfully demand guns from the Federal Government, failing which they can lawfully take out writs of mandamus to compel the government to give them guns as instruments necessary for the exercise of the rights guaranteed under section 33(1)&(2) of the constitution, in addition to the rights provided under sections 23 and 26 of the Criminal Code Act.
Mallami is not a court of law and he has not shown how Amotekun is unconstitutional. All the laws known to Mallami are also known to Lawyers from the Southwest, and so what is the advantage of meeting him? If he has any legal advice to give, let him give it to the members of Miyetti Allah, Hisbah, Yan Banga and the Civilian JTF already operating lawlessly in Northern Nigeria, and which were not established under section 33 of the constitution. They are not as noble as Amotekun.
Tinubu is neither a lawyer nor a security expert and no one goes to him for legal advice. His preference for the collapsing of the regional Amotekun and its replacement with distinct neighborhood watch for each state, such as the one in Lagos State that ‘ostensibly’ engages in intelligence gathering for onward transmission to the Police cannot satisfactorily secure the people of the Southwest and their properties. For instance, if an attack occurs, probably against a mother of a certain boy, at a farm that is located at about 5 or 10 kilometers from the office of the neighborhood watch, and if the boy runs to go to give information to the office of the neighborhood watch, the carnage would have been fully carried out before he would have traversed 2 kilometers. Each state has an Attorney General that is capable of giving sound legal advice. Going by way of that fangled advice, would Akeredolu Ondo State also be advised to go to Mallami. Unless the idea is to weakly and cowardly go to Mallami, cringing and whimpering and urging him to show mercy, otherwise, going to him by the Southwest Governors, as suggested is only begging the question which is absolutely preposterous.
Ukpaka, a Lawyer, wrote from Lagos
