It is Illegal, Unlawful and Unconstitutional for any State of Region in the Federal Republic of Nigeria to Establish by Law any Government Security in the Federating States

It is Illegal, Unlawful and Unconstitutional for any State of Region in the Federal Republic of Nigeria to Establish by Law any Government Security in the Federating States

February 3, 2022 Uncategorized 0

by Nkem Okoro, Esq.

Since the return to democratic rule in 1999, Nigeria has continued to face a myriad of low-intensity conflicts which pose threats to national security. These conflicts include ethnoreligious crises, farmer-herders clashes, communal conflicts, Boko Haram terrorism/insurgency, militancy in the Niger Delta, to mention but a few. The government, at all levels, has been making attempts at addressing these conflicts some of which have proved intractable, stretching the country’s security apparatus, especially the Police Force to the limit.

Consequent upon the inability of the Federal Government to adequately protect the lives and properties of the citizen, some states, and regions in Nigeria have decided to either create their regional security outfit or state security, for diverse political reasons.

This piece, is, therefore, aimed at examining the constitutionality and the legality of such acts by some of the states/regions in the Federal Republic of Nigeria.

All the actions of the government, either the Federal or State, in Nigeria are governed by the provisions of the Constitution. By virtue of section 1(1) of the 1999 Constitution, the provisions of the Constitution are superior to every provision made in any Act or Law and are binding on and must be observed and respected by all persons and authorities in Nigeria. The Constitution is the grundnorm and the fundamental law of the land. All other legislations take their hierarchy from the provisions of the Constitution. The provisions of the Constitution take precedence over any law enacted by the National Assembly even though the National Assembly has the power to amend the Constitution itself. By the provisions of the Constitution, the law made by the National Assembly comes next to the Constitution, followed by those made by the House of Assembly of a State. See the case of Okorocha V PDP (2014) 7 NWLR (Pt. 1406) 213, where the Supreme Court held as follows:

The court must do all it can to jealously guard its powers and the supremacy of the constitution as the grundnum, which is above all other authorities. The court, as the custodian of the constitution, must not, therefore, be seen to ridicule the very institution that puts it in place. (P. 269, paras. C-D)

The Constitution of the Federal Republic of Nigeria, as amended, provides the limits of the executive powers of both the Federation and the states. See section 5(1) of the Constitution of the Federal Republic of Nigeria which provides as follows:

Subject to the provisions of this Constitution, the executive powers of the Federation:

(a). Shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be executed by him either directly or through the Vice President and Ministers of the Government of the Federation or officers in the public service of the federation; and

(b). Shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws

(2). Subject to the provisions of this Constitution, the executive powers of a state-

(a). Shall be vested in the Governor of that State and may subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that state or officers in the public service of the state; and

(b). Shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the state and to all matters with respect to which the House of Assembly has, for the time being, power to make laws.

See also the provisions of section 5(3a) of the Constitution of the Federal Republic of Nigeria, as follows:

The executive powers vested in a State under subsection (2) of this section shall so be exercised as not to_

(a). impede or prejudice the exercise of the executive powers of the Federation.

(c). endanger the continuance of a federal government in Nigeria. The National Assembly has the powers to make laws for the peace, order and good government of Nigeria, in respect of the 68 items listed in the exclusive legislative list under part 1, to the Second Schedule of the Constitution of the Federal Republic of Nigeria, and the other items listed on the concurrent legislative list in Part 2, Second Schedule to the Constitution of the Federal Republic of Nigeria. See the provisions of section 4(2) of the Constitution of the Federal Republic of Nigeria, 1999, as altered, which provides as follows:

The National Assembly shall have powers to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the exclusive legislative list set out in Part 1 of the Second Schedule to this Constitution.

The House of Assembly of a State also has such powers to make laws for the peace, order and good government in respect of the State or any part thereof and with respect to matters listed in subsection (7) (a)-(c) of section 4 of the Constitution, which also provides as follows:

The House of Assembly of State shall have power to make laws for the peace, order and good government of the 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 to this Constitution.

b. Any matter included in the Concurrent Legislative List set out in the first column of Part 11 of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto; and

c. Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.

It would be preposterous for the House of Assembly of a State to contend that because it has the power to make laws for the peace, order and good government of the State, it could enact a law for the State on a matter on the Exclusive Legislative List. Such a law would simply be invalid and of no effect whatsoever. Each of the National Assembly and the House of Assembly of a State can only operate, orbit, or gravitate, within the parameter, circumference, or fulcrum, laid down by the Constitution. Nigeria operates a constitutional democracy, with a written Constitution and the powers of each organ are to be discerned from the Constitution.

See the case of AG Lagos State V AG Federation & Ors (2003) LPELR-620(SC) where the Apex Court held as follows:

“Nigeria is no doubt a Federal Republic with a Federal Constitution in which the Legislative powers of the Federal Government through the National Assembly and the legislative powers of the State Governments through the State Assemblies were clearly defined. These consist of the Exclusive Legislative list on which only the National Assembly can legislate; the Concurrent Legislative List which is shared between the National Assembly and the State Assemblies and the remaining which is called the residual list not included in the Exclusive or Concurrent List which only the State Assemblies can legislate on. It is therefore the function of the court when any dispute arises on the competence of either of them to legislate on any matter, to ensure that each legislative arm operates within its limit as provided by the Constitution. And in order to determine the competence to legislate as in this case, the interpretation of the relevant provisions of the Constitution must be invoked.”

See Items 38, 45and 68 of the Second Schedule Part 1, of the Constitution of the Federal Republic of Nigeria 1999, as amended. Item 38 provides for, military(Army, Navy and Air Force) including any other brand of the armed forces of the Federation. However, for this article, we shall be focusing on item 45, which provides for the police and other government security services established by law(Emphasis supplied). Item 68, provides to the effect that any matter incidental or supplementary to any of the items mentioned in the exclusive legislative list is exclusively within the legislative competence of the National Assembly. By virtue of the inclusion of item 45, in the exclusive legislative list, it means, that only the National Assembly can legislate on these issues, especially government security services, established by law. See the case of AG Lagos State V AG Federation (2013) 16 NWLR (Pt. 1380) 383. By extension, as these items are not within the legislative competence of the House of Assembly, the State Governors, have no executive competence, to make any declarations, by which government security could be established. See Sections 4(7) and 5(2b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

Neither the House of Assembly nor the Governor of any State in the Federal Republic of Nigeria has any constitutional powers to establish by law, any security in the federating states of the Federation, the description or appellation of such security, notwithstanding, as the powers of the governor and House of Assembly of a State, are circumscribed by the provisions of the constitution.

Consequently, where the governor of a state, exceeds the limits of its constitutional powers as provided for in the Constitution, the Courts can always intervene. See the case of Gov of Akwa Ibom State V Umah (2002) 7

NWLR (Pt. 767) 738, where the intermediate court held as follows: In exercising his executive powers, the Governor of a State must act within the Constitution and under any law validly made by the House of Assembly of the State. In Nigerian democratic set up, a blank or Arbitrary power outside the Constitution and the law is not vested in or possessed by the Governor of a State. (P. 776, paras. G-H)

See the case of Gov of Akwa Ibom V Umah (Supra), where it was further held as follows by the Court of Appeal;

By virtue of section 5(2) of the Constitution of the Federal Republic of Nigeria, 1999, subject to the provisions of the Constitution, the executive powers of a State shall extend to the execution and maintenance of the Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws. (P. 770, paras. D-D)13. On Limit of powers of Governor of a State under section 5(2), 1999 Constitution -The provisions of section 5(2) of the 1999 Constitution is subject to provisions of the Constitution and it means that the section is qualified as it is rendered dependent upon and subjected to other provisions of the Constitution. And, the mere fact that the House of Assembly of a State has the powers to make laws under the provisions of the Constitution does not automatically empower the Governor to act under the provisions where the House of Assembly has not made any law under the relevant section of the Constitution. In any event, there must be a law which must authorize a Governor to act upon under the provisions and such a law must not be inconsistent with the provisions of the Constitution. (P. 771, paras.A-G)

See the case of Alakpi V Gov of Rivers State (1991) 8 NWLR (Pt. 211) 575, where it was also held as follows;

Per OMOSUN, J.C.A. at page 606, paras. E-F:”The Governor is bound by the Law which the Government has made. The constitution which is the supreme law of the land binds him. It is not within his powers to swap the functions of the Civil Service Commission in disciplinary matters. The 1979 Constitution made pro- visions for the functions of the three arms of Government and the 1st respondent cannot unilaterally arrogate to himself the functions of any organ of the Government. 1st respondent’s termination of the appointment of the appellant was Arbitrary and unlawful.

We submit that it is not within the constitutional powers donated to the Governors in Nigeria, to establish, a regional security outfit, or state security outfit for any purpose whatsoever. The governors’ powers are exercised within the items for which the State Houses of Assembly have powers to make laws. The Houses of Assembly in Nigeria, by virtue of items 45 and 68 of Part 1, Second Schedule to the Constitution of the Federal Republic of Nigeria, have no legislative powers over government security, established by law. Consequently, no state in Nigeria has powers to establish regional or state security.

The legislative powers of the State Houses of Assembly can only be exercised in accordance with the limits, as placed on the State House of Assembly by the Constitution of the Federal Republic of Nigeria. See the case of A.-G., Abia State v. A.-G., Fed.2006)( 16 NWLR,(Pt 1005) 291, where the apex court held as follows:

The Constitution of a nation is the fans et origo, not only of the jurisprudence but also of the legal system of the nation. It is the beginning and the end of the legal system. In Greek language, it is the alpha and the omega. It is the barometer with which all statutes are measured. In line with this kingly position of the Constitution, all the three arms of Government are slaves of the Constitution, not in the sense of undergoing servitude or bondage, but in the sense of total obeisance and loyalty to it. This is in recognition of the supremacy of the Constitution over and above every statute, be it an Act of the National Assembly or a law of the House of Assembly of a State.The supremacy clause is provided for in section 1(1) of the Constitution of the Federal Republic of Nigeria, 1999. All the three arms of Government must dance to the music and chorus that the Constitution beats and sings, whether the melody sounds good or bad. Regarding the first place section 1 occupies in the Constitution, I regard and christen it as the golden section of the Constitution, the adjectival variant of the noun gold. It is the same golden position in sports that the Constitution occupies in any jurisprudence and legal system, including ours.

While I recognise the constitutional right of the legislatures, that is, the National Assembly and the House of Assembly of the States, to amend the Constitution, until that is done, they must kowtow (using the Chinese expression) to the provisions of the Constitution, whether they like it or not.

Where the National Assembly qua legislature moves from the constitutional purview of section 4(2) of the Constitution or vice versa, as it relates to the House of Assembly of a State in respect of section 4(7), issue or question or constitutionality or constitutionalism arises, and courts of law in the exercise of their judicial powers, when asked by a party, will move in to stop any excess in exercise of legislative power. This is what I am doing and section 6 of the Constitution is my authority for doing so.

It is only the National Assembly that can make laws incidental or supplementary to any matter, mentioned in the exclusive legislative list. Consequent upon the foregoing, we submit most humbly, that the Houses of Assembly of the States of the Federation, have no legislative competence to make any law pertaining to the security of any State in the Federal Republic of Nigeria, as it is the exclusive preserve of the National Assembly given the provisions of items 45 and 68 of Part 1, Second Schedule to the Constitution of the Federal Republic of Nigeria.

Item 45 Part 1, of the Second Schedule to the Constitution, provides as follows:

Police and other government security services established by law.

Whereas item 68 Part 1, of the Second Schedule to the Constitution, provides as follows:

Any matter incidental or supplementary to any matter mentioned elsewhere in this list.

We submit, that given the two provisions above, no House of Assembly in the Federation, has the legislative competence to legislate on any government security service established by law, or any other matter incidental or supplementary thereto. We submit that any legislation by any House of Assembly in the Federal Republic of Nigeria, establishing any state security, no matter the name given to such security outfit, is void, as same would conflict with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It is also ultra vires any state House of Assembly to make such laws, given the clear and succinct provisions of the constitution referred to, above. See the case of Chevron Ltd V Imo State House of Assembly (2016) LPELR- 41563(CA).

We submit that, given the provisions of section 4(7a-c) of the Constitution of the Federal Republic of Nigeria, and items 45 and 68 Part 1, of the Second Schedule to the Constitution, any law made by any State House of Assembly, establishing any security outfit in Nigeria, is null, void, invalid and of no effect whatsoever. See the case of A.G. OF Lagos State V A.G of the Federation (2003) 2 NWLR (Pt. 833) 1, where it was held as follows:

If the provisions of any law are inconsistent with any of the provisions of the Constitution, they are liable to be struck down under the “blue pencil rule” in accordance with the provisions of section 1(3) of the 1999 Constitution. [Balewa v. Doherty (1963) 2 SCNLR 155; A.-G., Abia State v. A.-G., Federation (2002) 6 NWLR (Pt.763) 264; A.-G., Ondo State v. A.- G., Federation (2002) 9 NWLR (Pt.772) 222 referred to.] (Pp. 119, paras. A-D; 244, paras. A-D) Per TOBI, J.S.C. at page 244, paras. A-D:

“The Constitution is the barometer on which the constitutionality or otherwise of a statute is measured. Where a statute is inconsistent or in conflict with any provision of the Constitution, the provision of the statute will be null and void. This is essentially the language of section 1(3) of the Constitution.”

It is also important, that we x-ray the provisions of the 2nd Schedule Part 2, of the Constitution of the Federal Republic of Nigeria, as it relates to the concurrence legislative list, to determine, whether anything, as it relates to the establishment of government security by law, was provided for in the said part of the constitution, in favour of a state House of Assembly.

The House of Assembly of a state can only legislate on 13 items, on the concurrent legislative list, in Part 11, Second Schedule of the Constitution of the Federal Republic of Nigeria as follows:

  1. Grants and Loans. 2. Antiquities and Monuments. 3. Archives and Public Records. 4. Collection of any Tax, fee or rate. 5. Laws with respect to the election of local government Council. 6. Electricity, its distribution and transmission in a state. 7. Censorship of cinematograph film and to prohibit or restrict the exhibition of such films. 8. Industrial, commercial or agricultural development. 9. Scientific and technological research. 10. Statistics. 11. Trigonometrical, cadastral and topographical surveys. 12. Establishment of an institution for the purposes of a university, technological or professional education.13. technical, vocational, post primary, primary or other forms of education.

See the case of A.G. Lagos State V Eko Hotels Ltd (2006) 18 NWLR (Pt. 1011) 378, where the Supreme Court held as follows:

Under section 4(7) of the Constitution of the Federal Republic of Nigeria, 1999 the House of Assembly of a State is restricted to make laws on matters not included in the Exclusive Legislative List set out in part 1 of the Second Schedule to the Constitution. It can only make laws on matters included in the Concurrent Legislative List set out in the first column of part II of the Second Schedule to the said Constitution, to the extent prescribed in the second column opposite thereto. The House of Assembly of a State can also make laws on any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution. The subsection clearly vindicates the concept of federalism which Nigeria operates. [A.-G., Abia State v. A.-G., Fed. (2002) 6 NWLR.

In the case of AG Lagos State V Eko Hotels Ltd (Supra) the Supreme Court  further held as follows:

Since the Companies and Allied Matters Act, 1990 has  copiously and comprehensively provided for the floatation of  and transfer of shares, the terms of reference of the Tribunal  of Inquiry set up by the appellant fall within the precinct or  purview of Item 32 of the Exclusive Legislative List of the 1999  Constitution, which is within the legislative competence of the  National Assembly. Moreover, the respondents qualify as  bodies corporate within the meaning of Item 32 as they are  companies within the meaning of the Companies and Allied  Matters Act, 1990. The purported making of Lagos State Legal  Notice No. 10 of 1999 constituting the Tribunal of Inquiry was, therefore, ultra vires. Accordingly, the Lagos State Government  had no legislative competence to set up a Tribunal of Inquiry  to probe the acquisition of shares of the 2nd respondent by the  1st respondent (P. 430, paras. A-B) 

We submit most humbly, that given the clear provisions in the concurrent  legislative list, in Part 11, Second Schedule to the Constitution, state Houses of  Assembly in Nigeria, lack the competence, to legislate, or make laws as it  relates to government security established by law and cannot purport to make  any law establishing a state or regional security. Furthermore, the powers of  the Governor of a State is limited only to the items for which the state House  of Assembly for the time, has the powers to legislate on. We humbly refer this  Honourable Court to the case of APC V ESIEC (2021) 16 NWLR (Pt. 1801) 1,  where the Supreme Court held as follows: 

The powers of the governor of a state are as circumscribed  under section 5(2) of the 1999 Constitution (as amended),  which states that subject to the provisions of the Constitution,  the executive powers of a state: shall be vested in  the governor of a State and may subject as stated in the  provision and the provisions of any law by a House of  Assembly, be exercised by him either directly or through the  Deputy Governor, Commissioners of the Government of that  State or officers in the public service of the (a) state; and shall  extend to the execution and maintenance of the Constitution,  all laws made by the House of Assembly of the State and to all  matters with respect to which the

the House of Assembly has, for the time being, (b) powers to make laws. (P. 69, paras. D-G

See the case of Towoju V Gov of Kwara State (2005) 18 NWLR (Pt. 957) 324, where it was held as follows:

By virtue of section 5(2) of the 1999 Constitution, a governor of  a State has the executive powers to run the affairs of his State.  Such powers include but is not limited to the execution and  maintenance of the Constitution, all laws made by the House of Assembly and to all matters with respect to which the House  of Assembly has for the time being power to make laws. (Pp.  352-353, paras. G-D) 

See further, the case of A.G of Lagos V Eko Hotels Ltd (Supra) where it was  further held as follows:  

By virtue of section 20 of the Tribunals of Inquiry Law, Cap.  20, Laws of Lagos State, 1994 which provides that the powers  conferred by the law upon the Governor may be exercised by  him in respect of any matter in the legislative competence of  Lagos State, the Governor of Lagos State is only competent to  set up a Tribunal of Inquiry in respect of matters which the  House of Assembly of Lagos State can legislate under section  4(7) of the Constitution. The Governor of Lagos State cannot  set up a Tribunal of Inquiry in respect of matters in the  Exclusive Legislative List, which are reserved for the National  Assembly to legislate. Thus, in the instant case, the act of  Governor of Lagos State in setting up the Tribunal cannot be  said to be ultra vires, but the powers conferred on the Tribunal  being related to shares in a company, are ultra vires, null and  void. (P. 459, paras. D-F) 

It is our respectful submission that in interpreting the provisions of the  Constitution cited above, a narrow meaning should not be given to it. Rather,  a wide and liberal interpretation ought to be applied unless there is express  provision to the contrary and this must be done to carry out or give effect to,  the intention of the makers of the Constitution. See the following cases; [Rabiu  v. State (1981) 2 NCLR 293; Tukur v. Government of Gongola State (1989) 4  NWLR (Pt. 117) 517; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR  (Pt. 91) 622; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506; A.-G., Ondo State  v A.-G., Federation (2002) 9 NWLR (Pt. 772) 222; Alegbe v. Oloyo (1983) 2  SCNLR 35 referred to.] (Pp. 117, paras. G-H; 159, paras. C-E). 

It is our respectful submission that the makers of the Constitution of the  Federal Republic of Nigeria did not intend, given, the peculiar nature of  Nigeria, to give the federating states, powers over regional securities in each  state of the Federation. This is manifest given the provisions of items 45 and 68  in the exclusive legislative list.  

We submit most humbly that the object of interpreting a statute or the  Constitution is to discover the intention of the legislature, which intention is  usually deduced from the language used. Therefore, the golden rule of  interpretation of constitutional provisions is that the words of the Constitution must, prima facie, be given their ordinary meaning, which means that the court  must look closely at the words used in the provisions and assign them their  ordinary meanings if the words are not ambiguous. The court must also give  the words a liberal interpretation. The approach of the court to the construction  of the Constitution should be one of liberalism. It is not the duty of the court  so to construe any of the provisions of the Constitution as to defeat the obvious  ends the Constitution was designed to serve. [Rabiu v. State (1981) 2 NCLR  293; Senate v. Momoh (1983) 4 NCLR 269; A.-G., Bendel v. A.-G., Federation  (1982) 3 NCLR 1; Awolowo v. Shagari (1979) 6 – 9 SC 51; Salami v. Chairman,  L.E.D.B. (1989) 5 NWLR (Pt. 123) 539; Egolum v. Obasanjo (1999). 

See also the case of AG Abia State V AG Federation (Supra) where the Apex  Court held as follows: 

The court should, when interpreting the provisions of the  Constitution, bear in mind that the function of the  Constitution is to establish a framework and principles of  government, broad and in general terms, intended to apply to  the varying conditions which the development of our plural  and dynamic society must involve. Therefore, mere technical  rules of interpretation are to some extent inadmissible in a way  so as to defeat the principles of government enshrined in the  Constitution. And where the question is whether the  Constitution has used an expression in the wider or in the  narrower sense, the court should, whenever possible, and in  response to the demands of justice, lean to the broader  interpretation, unless there is something in the test or in the  rest of the Constitution to indicate that the narrower  interpretation will best carry out the objects and purposes of  the Constitution

[Rabiu v. Kano State (1982) 2 NCLR 117; Aqua  Ltd. v. Ondo State Sports Council (1985) 4 NWLR (Pt.91) 622;  Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt.117) 517;  Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 referred to.] 

We submit that the makers of the 1999 Constitution of the Federal Republic of  Nigeria, knew, the diversities in ethnic, religious and cultural composition of  Nigeria, hence they decided to centralize the issues about the establishment of  government security by law, by including it as item 45, in the exclusive legislative list. We submit humbly, that by this singular act, the drafters of the  1999 Constitution effectively removed the establishment of any government security by law, within the powers of the federating states in Nigeria. To better  understand this, we shall give a brief historical perspective and development  of the Nigeria Police. 

Nigeria Police exists as a force to provide, security for Nigerians. It was  established in 1930 by the colonial government. Before 1930, we had the Hausa  Constabulary, established in 1879, the Royal Niger Company Constabulary  (1888), the Niger Coast Constabulary (1894), and the Lagos Police, which was  established in 1896. 

Unlike Nigeria before it in 1914, the different police forces were merged for,  administrative convenience. From that moment on, the police was  administered from Lagos. 

In 1960, at our independence, the police was also centrally controlled by the  Federal Government. However, Nigeria’s first Constitution after  independence gave each region in Nigeria, the right to have regional police  forces while the FG retained oversight with Nigeria Police Force. However,  because of the role of the Northern Police forces in the pogroms of 1966, the  Gowon regime disbanded the regional police forces. The process of  disbandment started in October 1966 and was complete by the end of 1972. 

The 1979 Constitution gave the Federal Government exclusive control over the  Nigeria Police Force. This centralization of the control of the police was also  retained by the 1999 Constitution of the Federal Republic of Nigeria, as  amended. We submit given this brief history of the Nigeria Police, that the  framers of the 1999 Constitution of the Federal Republic of Nigeria, never  intended any state, or region to have separate police, under any guise or name  whatsoever. It will have to take the amendment of the constitution before any  state of the Federation, can legally create its police under any guise  whatsoever. 

See section 214 of the Constitution which provides as follows: There shall be a Police Force for Nigeria, which shall be known  as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established shall be  established for the federation or any part thereof. 

See the case of IGP V Ikpala (2016) 9 NWLR (Pt. 1517) 236, where it was held  as follows: 

By section 214(2)(b) of the constitution of  the federal republic of Nigeria, 1999 (as amended),  the Nigeria Police Force established under section 214(1) is  primarily saddled with the enormous responsibility of  maintaining law and order in the society. A very difficult,  tasking and at times dangerous duty every reasonable person  living in this country would readily admit. The functions as  are more specifically provided for in section 4 of the Police Act are for the prevention and detection of crime, apprehension of  offenders, the preservation of life and property, the due  enforcement of all laws and regulations which they are  directly charged with and the performance of such military  duties within and outside Nigeria as may be required of them  by or under the authority of the Police Act or any other Act of  Parliament in Nigeria. (P. 287, paras. E-G) 

See section 2(1) of the Constitution of the Federal Republic of Nigeria, which  provides as follows: 

Nigeria is one indivisible and indissoluble sovereign state  known by the name of the Federal Republic of Nigeria. 

We submit that the reference to single police for Nigeria, in section 214 of the  Constitution, clearly indicates that there cannot be any other further regional  police in Nigeria under any guise whatsoever. This is especially given the  provisions of items 45 and 68 in Part 1, of the Second Schedule to the  Constitution, which took away the powers of a state in the Federation to  legislate on government security services established by law.  

We submit most humbly that the Constitution of the Federal Republic of  Nigeria, 1999, as altered, having made exhaustive provisions as it relates to  having one police in the entire Federation, has covered the field, of policing in  Nigeria, consequently, no State House of Assembly, can make any other law  about state policing, or establishment of any other state security to assist the  police, in the performance of its duties. See section 214 and items 45 and 68 of  the 1st Schedule Part 1 of the Constitution of the Federal Republic of Nigeria.  See the case of INEC V Musa (2003) 3 NWLR (Pt. 806) 72, where it was further  held as follows: 

Howsoever it is described, where the constitution has covered the field as to the law governing any conduct, the provision of the constitution is the authority statement of the law on the subject. The constitution would not have ‘covered the field’ where it has expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the constitution has enacted must show that and how, it has derived its legislative authority to do so from the constitution itself.

The writer is, therefore, of the firm view, given the foregoing submissions, that  it is not within the constitutional powers of either the state governors or the  state houses of Assembly in the Federal Republic of Nigeria, to establish state  security outfit under any name whatsoever. It is illegal, unlawful and unconstitutional for any state in the Federal Republic of Nigeria, to purport to  establish its state security. 

Nkem Okoro, Esq.

Human Rights Activist & Constitutional Lawyer

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