In February 2006, the Federal Government declared Hisbah (a local sharia implementation taskforce) an illegal organization, arrested its top leadership in Kano and charged them on 3 counts of felony and membership of an illegal organization.
In the words of Frank Nweke Jr, Obasanjo’s minister of information: ‘the establishment of Hisbah contravenes section 214, subsection 1 of the Nigerian constitution.’
The Kano State Government took the Federal Government to the Supreme Court seeking constitutional interpretation of the disputed section while the two detained Hisbah leaders sued the Federal Government at the federal high court for damages over what they termed as their illegal arrest.
They were acquitted and each was awarded the sum of 500,000 Naira as damages. On the KNSG Vs FG issue, the Supreme Court dismissed the case for lack of original jurisdiction and asked that the case be filed appropriately (starting from the FHC).
Fast forward to 2020, Governors under the South-West Governors Forum established a security outfit to help keep their communities and people safe. It is seen by many as an important move towards regional integration and the South-West is leading the country towards that future.
In a move reminiscent of Obasanjo’s, Buhari’s AGF Malami came out to denounce the security outfit, declaring it unconstitutional and illegal and threatening to arrest any of its members.
Since then, there have been diverse opinions over the appropriateness or otherwise of Malami’s intervention.
The declaration by the Antorney General of Federation is merely an opinion, an expression of official Federal Government stance. Only the courts can ban or proscribe Amotekun.
Therefore, either the Federal Government or the South-West governors should go to court to seek interpretation of Section 214 in order to finally lay this issue to rest, at least, as far as the 1999 constitution is concerned.
AGF Malami said that his office was not consulted when setting up the security outfit.
The fact is, state governors are under no obligation to consult his office over such issue. They have been in consultation with the IG of Police who has given his blessings. If there’s any problem, it is the lack of synergy between the office of the AGF and that of the IGP, both FG appointees and law enforcement institutions.
Amotekun is not backed by any enabling law. In their bid to launch the security outfit, the South West governors have put the cart before the horse by failing to enact enabling legislation to guide its establishment and operations.
Considering the extensive legal background among South-west governors and politicians, the lack of enabling law for Amotekun is not an oversight. It is deliberate. Aware that section 214 restricts state governments from creating a state police, South-West politicians have been coy about Amotekun as a merely intelligence gathering outfit (as said by Fayemi, Makinde and Akeredolu and others), but anyone following its launch will attest that it is a regional police in disguise, more than just the intelligence outfit its founders are now claiming.
Creating that ambiguity due to the absence of an enabling legislation will give them the leverage and maneuverability to give Amotekun wideranging regional policing role. A legislation will tie their hands if their real intentions is to create a regional police.
Because it is either they make Amotekun merely symbolic and dysfunctional or clearly run foul of section 214 and fail any potential judicial interpretation.
On its part, the Federal Government’s reaction is entirely predictable. It will do anything to guard its policing monopoly. The Nigerian constitution rest enormous powers on the executive. Any of the South-West governors or present advocates of Amotekun will oppose it if he were president, or at best, ensure that its roles are largely symbolic.
Beyond the furore over it is legality or otherwise, the Amotekun debate raises two fundamental questions: the security question and the federalism question.
The security question can be interpreted in the alarming deterioration in security as our overstretched armed forces scramble to confront emerging challenges across most parts of the country, leaving a huge security vacuum.
If this vaccum is not filled by Amotekun or any state-sponsored initiative, our communities risks getting overrun by bandits and criminals, the consequences of which are better left unimagined.
No doubt, cases of excesses and arbitrariness may abound with Amotekun, like they happen even with our police, but that’s why Amotekun should be properly set up via an enabling legislation to provide legal safeguards against such excesses.
The second question is a corollary to the first, that as long as the FG does not exclusively retain the monopoly of violence, and as long as regional actors continue to play greater role in internal security, then the present Nigeria’s federal arrangement is unsustainable.
This, whether we like it or not, will necessitate the conditions that will push Nigeria towards greater federalism at best or disintegration at worse. Strategic actors don’t wait for such conditions to be imposed on them, they impose the conditions on others.
By Ahmed Musa Hussaini