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 citizens, 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)
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 (Pt. 763) 264; A.-G., Ondo State v. A.-G., Fed. (2002) 9 NWLR (Pt. 772) 222; A.-G., Lagos State v. A.-G., Fed. (2003) 12 NWLR (Pt. 883) 1
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