Nigeria continues to be confronted with low-intensity conflicts that pose threats to its national security since 1999 when democracy was restored. These conflicts include ethnoreligious crises, farmer-herders clashes, communal conflicts, Boko Haram terrorism/insurgency, militancy in the Niger Delta, to mention but a few. At all levels of government, attempts have been made to address these conflicts, some of which have proven intractable and stretched the country’s security apparatus, particularly the Police Force, to the limits.
In response to the inability of Federal Government to adequately protect citizens’ lives and property, certain States and regions of Nigeria decided to create their own regional security organization or state security for political reasons.
This article is therefore aimed at investigating the constitutionality and legality of such acts by some of Nigeria’s states/regions.
The Constitution governs all actions of Nigeria’s government, whether it is the Federal or the State. Section 1(1) of 1999 Constitution states that the Constitution is superior to any Act or Law. Its provisions are binding and must be complied with by all Nigerian authorities. The Constitution is the foundation and the supreme law of the land. The Constitution’s provisions are the basis for all other legislations. Even though the National Assembly can amend the Constitution, the provisions of the Constitution have precedence over all other laws. The Constitution states that the law made by a National Assembly is the first to be considered. It follows the laws made by the House of Assembly of a State. Okorocha v PDP (2014) 7 NWLR (Pt. 1406) 213, in which the Supreme Court ruled as follows:
The court must protect its power and ensure that the constitution is the grundnum, the highest authority, is protected. As the custodian, the court must not ridicule the institution that created it. (P. 269, paras. C-D)
The Constitution of Nigeria (as amended) outlines the limits of executive power for both the Federation of Nigeria and its states. Section 5(1) of the Constitution of the Federal Republic of Nigeria provides the following:
The executive powers of the Federation are subject to the provisions in this Constitution:
(a). The President shall have the power to execute the laws, as well as any other law passed by the National Assembly.
(b). This Constitution shall be extended to the execution, maintenance, and enforcement of all laws made by National Assembly, and all other matters that the National Assembly is able to make laws.
(a). Shall vest in the Governor of that state and may, subject as aforesaid to the provisions of any law made in a House of Assembly be exercised directly or through the Commissioners of that state’s Government or officers in public service of that state;
(b). This Constitution shall be extended to the execution of and maintenance of all laws made by state legislatures and all other matters that the House of Assembly is able to make laws.
Also, see section 5(3a), Constitution of the Federal Republic of Nigeria.
A State shall exercise the executive powers conferred by subsection (2) of this Section in such a way as to_
(a). hinder or prejudice the exercise by the Federation of its executive powers.
(c). (c). As amended, section 4(2) of the Constitution of the Federal Republic of Nigeria 1999 provides the following:
The National Assembly shall be empowered to make laws to ensure the peace, order, and good governance of the Federation or any portion thereof in relation to any matter not covered by the exclusive.
Legislative List. Part 1. Second Schedule to the Constitution.
The House of Assembly of a State has the power to make laws to ensure peace, order, and good governance in the State or any portion thereof, and in relation to matters listed under subsection (7)(a)-(c). Section 4 of the Constitution also gives the following:
The House of Assembly of State shall be able to make laws to ensure the order, peace and good governance of the state or any portion thereof in respect to the following subjects, that is
a. Anything not listed in the Exclusive Legislative List, Part 1, of this Constitution.
b. Anything that is included in the Concurrent Legislative Liste set out in Part 11 of this Constitution to the extent specified in the Second Column;
c. Any other matter in which the legislature is authorized to make laws according to this constitution.
It would be absurd for the House of Assembly of a State claim that it can make laws for peace, order, and good governance of the State. However, it cannot enact a law on a subject on the Exclusive Legislative List. This law would be null and without effect. The Constitution stipulates that each member of the National Assembly or the House of Assembly of a State cannot operate, orbit, or gravitate beyond the parameters, circumference or fulcrum. Nigeria is a constitutional democracy with a written Constitution. Each organ’s powers are to be determined from the Constitution.
Take a look at the case of AG Lagos State v AG Federation & Ors (2003) (SC), where the Apex Court ruled as follows:
“Nigeria, a Federal Republic, has a Federal Constitution that clearly defines the Legislative Powers of the Federal Government through its National Assembly and those of the State Governments through their State Assemblies. The Exclusive Legislative List is for the National Assembly only. The Concurrent Legislative List is shared by the National Assembly with the State Assemblies. And the rest, which is known as the residual list that is not on the Exclusive or Concurrent List and which the State Assemblies are allowed to legislate on. The court has the responsibility to resolve any disagreements about the competence of one of them to legislate on any matter. It also ensures that each legislative arm works within the limits of the Constitution. To determine whether a person has the authority to legislate in this instance, .”
See also Items 38, 45, and 68 of the Second Schedule Part 1 of the Constitution of the Federal Republic of Nigeria 1999. Item 38 covers military (Army, Navy, and Air Force), as well as any other brand of the Federation’s armed forces. For this article, however, we will be focusing only on item 45 which covers the police and other government security agencies established by law (Emphasis added). Item 68 states that any matter which is incidental to or supplementary to any item on the exclusive legislative list falls within the exclusive legislative jurisdiction of the National Assembly. The inclusion of item 45 in the exclusive legislative listing means that only the National Assembly is authorized to legislate on these matters, including government security services established by law. Refer to the case AG Lagos State v AG Federation (2013) 16 NWLR. (Pt. 1380) 383. These items do not fall within the legislative jurisdiction of the House of Assembly. Therefore, the State Governors have no executive power to declare any measures that could establish government security. See Sections 4(7) & 5(2b) of the 1999 Constitution of the Federal Republic of Nigeria.
The House of Assembly and the Governor of any state in the Federal Republic of Nigeria do not have the constitutional power to create by law any security in the Federation’s federating states. This is in addition to the governor’s powers.
The constitution defines the boundaries of the House of Assembly and the House of Assembly of a State.
The Courts may intervene if the governor of a state exceeds its constitutional powers as set forth in the Constitution. Gov. Akwa Ibom State v Umah ((2002)
NWLR (Pt. NWLR (Pt.
The Governor of a State must exercise his executive power within the Constitution of the State and any law made validly by the House of Assembly of the State. The Governor of a state does not have any Arbitrary or blank power in Nigeria’s democratic system. (P. 776, paras. G-H)
Refer to the case of Gov of Akwa Ibom v Umah (Supra), in which it was further held by the Court of Appeal.
The Constitution of the Federal Republic of Nigeria 1999, section 5(2), provides that the executive powers of a State include the execution and maintenance of the Constitution and all laws made by the House of Assembly of the State, and all matters with which the House of Assembly is for the time being empowered to make laws. (P. 770, paras. D-D)13. D-D)13. The mere fact that a state’s House of Assembly is empowered to make laws under the Constitution does NOT automatically give the Governor the power to act in accordance with the provisions. A law that authorizes a Governor to take action under the provisions must exist in any case. It must also not conflict with the Constitution. (P. 771, paras.A-G)
Refer to the case of Alakpi v Gov of Rivers State (1991). 8 NWLR (Pt. 211) 575 was also held there:
Per OMOSUN J.C.A. at page 606, paras. E-F: “The Law that the Government has made binds the Governor. He is bound by the constitution, which is the supreme law in the land. He cannot swap the Civil Service Commission’s functions in disciplinary matters. The 1979 Constitution provided pro-visions for the functions and powers of each of the three arms. Therefore, the 1st Respondent cannot unilaterally assume the functions of any of the Government’s organs. The 1st respondent terminated the appointment of appellant. This was arbitrary and illegal.
We contend that it is not within Nigeria’s constitutional powers to create a regional security organization or a state security unit for any purpose. The powers of the governors are limited to the items for which the State Houses of Assembly can make laws. By virtue of Sections 45 and 68 of Part 1 of the Constitution of Nigeria, the Houses of Assembly of Nigeria have no legislative power over established government security. Therefore, Nigeria’s states do not have the power to create state or regional security.
The Constitution of Nigeria places limits on the State Houses of Assembly’s legislative power. A.-G. Abia is an example.
State, Fed.2006),( 16 NWLR) 291, where the apex Court ruled as follows:
The Constitution of a nation, is not only the fan et orgo of the jurisprudence, but also the legal system. It is both the beginning and end of the legal system. It is also known as the alpha and omega in Greek. It is the barometer that all statutes are measured with. All three arms of Government are considered slaves of the Constitution in accordance with its kingly status. This does not mean that they will be subject to servitude or bondage but rather in the sense that they will obediently and loyally follow the Constitution. This is to recognize the supremacy of the Constitution above all other statutes, whether they are Acts of the National Assembly or laws of the House of Assembly of a State. The Constitution’s music and chorus must be heard by all three branches of Government, regardless of whether it is good or bad. Concerning section 1, I refer to it as the “golden section” of the Constitution. It is the adjectival version of the noun golden. It’s the same position in sports as the Constitution occupies in any other jurisprudence or legal system, even ours.
I recognize the constitutional rights of the legislatures (that is, the National Assembly, and the House of Assembly of the States) to amend the Constitution. However, until that happens, they must kowtow to the Constitution’s provisions, using the Chinese expression.
If the National Assembly qua legislature moves out of the constitutional purview of Section 4(2) of Constitution or vice versa, in relation to the House of Assembly of a State with respect to section 4(7), issue, question, or constitutionalism arises. Courts of law, in the exercise of their judicial power, will ask a party to stop the excess in the exercise of legislative authority. This is what I am doing, and section 6 of Constitution is my authority to do so.
Only the National Assembly can make laws that are incidental or supplementary in any matter not already on the exclusive legislative list. We submit that the Houses of Assembly of the States of the Federation have no legislative power to make laws pertaining to the security of any state in the Federal Republic of Nigeria. This is because it is the sole preserve of the National Assembly, according to the provisions of the Part 1 Second Schedule to the Constitution of the Federal Republic of Nigeria.
The Second Schedule, Item 45 Part 1 of the Constitution provides the following:
Police, other security services for government established by law.
Whereas, item 68 Part 1 of the Second Schedule is the Constitution and provides the following:
Any matter that is incidental to or supplementary to the matter in this list.
Given the above provisions, we submit that no House of Assembly in Federation has the legislative power to legislate about any government security service or other matters incidental or supplementary to such service. Any legislation of any House of Assembly in Nigeria establishing any type of state security, regardless of its name, is null and void. This would be contrary to the 1999 Constitution of the Federal Republic of Nigeria. Given the concise and clear provisions of the constitution, it is also illegal for any state House of Assembly, to make such laws. Chevron Ltd v Imo State House of Assembly (2016) LELR- 41563(CA).
We contend that the Constitution of Nigeria’s Federal Republic of Nigeria Section 4(7a-c) and the sections 45 and 68 Part 1 of the Second Schedule to it, all laws passed by any State House of Assembly establishing any security organization in Nigeria are null, null, invalid, and of no effect. A.G. OF Lagos State v A.G of the Federation (2003/2 NWLR) (Pt. It was held in the following:
Any law whose provisions are incompatible with the Constitution’s provisions can be invalidated under the “blue pen rule”, as per the 1999 Constitution. [Balewa (1963) 2 SCNLR 155, A.G. Abia State against A.G. Federation (2002) 6 NWLR(Pt.763) 262, A.G.. Ondo State against 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 standard by which a statute’s constitutionality or non-constitutionality is determined. Any statute that is inconsistent with or conflicts with any provision in the Constitution will be declared null and void. This is basically the language in section 1(3) of Constitution.
It is important that we also x-ray the contents of the 2nd schedule Part 2 of the Constitution of Nigeria as it pertains to the concurrence legislative listing, to determine if anything, as it concerns the establishment of government safety by law, was included in the constitution.
A state’s House of Assembly can only legislate on 13 items from the concurrent legislative list in Part 11 of the Constitution of Nigeria, Second Schedule.
1. Loans and grants 2. Antiquities and Monuments 3. Archives and Public Records 4. Any Tax, Fee or Rate Collection 5. The laws governing the election of local government Council. 6. The distribution and transmission of electricity in a state. 7. Cinematograph film censorship and the prohibition or restriction of their exhibition. 8. Industrial, commercial or agricultural development. 9. Research in science and technology. 10. Statistics. 11. Trigonometrical and cadastral topographical surveys. 12. 13. Establishment of an institution to provide university, technical or professional education. Technical, vocational, post-primary, primary or any other form of education.
Refer to the case A.G. Lagos State V Eko Hotels Ltd (2006) 18 NWLR. (Pt. 1011) 378 where the Supreme Court ruled as follows:
Section 4(7) of 1999 Constitution of the Federal Republic of Nigeria gives the House of Assembly of a State the right to not make laws concerning matters that are not on the Exclusive Legislative List. It cannot make laws regarding matters not included in the Concurrent Legislative List in the first column, part II, of the Second Schedule. This is subject to the limitations set forth in the second column. The House of Assembly of a State may also make laws regarding any other matter it is authorized to do so in accordance to the Constitution. This subsection supports the notion of federalism that Nigeria is committed to. [A.-G., Abia State v. A.-G., Fed. (2002) 6 NWLR. (Pt. 763) 264; A.-G., Ondo State v. A.-G., Fed. (2002) 9 NWLR. 772) 222; A.-G., Lagos State v. A.-G., Fed. (2003) 12 NWLR, (Pt. 883) 1