Because the return to democratic rule in 1999, Nigeria has continued to face a myriad of low-intensity conflicts which pose threats to nationwide safety. These conflicts embody ethnoreligious crises, farmer-herders clashes, communal conflicts, Boko Haram terrorism/insurgency, militancy within the Niger Delta, to say however a number of. The federal government, in any respect ranges, has been making makes an attempt at addressing these conflicts a few of which have proved intractable, stretching the nation’s safety equipment, particularly the Police Pressure to the restrict.
Consequent upon the lack of the Federal Authorities to adequately defend the lives and properties of the residents, some States, and areas in Nigeria have determined to both create their regional safety outfit or state safety, for various political causes.
This piece, is, subsequently, geared toward analyzing the constitutionality and the legality of such acts by a few of the states/areas within the Federal Republic of Nigeria.
All of the actions of the federal government, both the Federal or State, in Nigeria are ruled by the provisions of the Structure. By advantage of part 1(1) of the 1999 Structure, the provisions of the Structure are superior to each provision made in any Act or Legislation and are binding on and have to be noticed and revered by all individuals and authorities in Nigeria. The Structure is the grundnorm and the basic legislation of the land. All different legislations take their hierarchy from the provisions of the Structure. The provisions of the Structure take priority over any legislation enacted by the Nationwide Meeting although the Nationwide Meeting has the facility to amend the Structure itself. By the provisions of the Structure, the legislation made by the Nationwide Meeting comes subsequent to the Structure, adopted by these made by the Home of Meeting of a State. See the case of Okorocha V PDP (2014) 7 NWLR (Pt. 1406) 213, the place the Supreme Court docket held as follows:
The courtroom should do all it may to jealously guard its powers and the supremacy of the structure because the grundnum, which is above all different authorities. The courtroom, because the custodian of the structure, should not, subsequently, be seen to ridicule the very establishment that places it in place. (P. 269, paras. C-D)
The Structure of the Federal Republic of Nigeria, as amended, gives the boundaries of the chief powers of each the Federation and the states. See part 5(1) of the Structure of the Federal Republic of Nigeria which gives as follows:
Topic to the provisions of this Structure, the chief powers of the Federation:
(a). Shall be vested within the President and should, topic as aforesaid and to the provisions of any legislation made by the Nationwide Meeting, be executed by him both immediately or by way of the Vice President and Ministers of the Authorities of the Federation or officers within the public service of the federation; and
(b). Shall prolong to the execution and upkeep of this Structure, all legal guidelines made by the Nationwide Meeting and to all issues with respect to which the Nationwide Meeting has, in the meanwhile, energy to make legal guidelines
(2). Topic to the provisions of this Structure, the chief powers of a state-
(a). Shall be vested within the Governor of that State and should topic as aforesaid and to the provisions of any legislation made by a Home of Meeting, be exercised by him both immediately or by way of the Deputy Governor and Commissioners of the Authorities of that state or officers within the public service of the state; and
(b). Shall prolong to the execution and upkeep of this Structure, all legal guidelines made by the Home of Meeting of the state and to all issues with respect to which the Home of Meeting has, in the meanwhile, energy to make legal guidelines.
See additionally the provisions of part 5(3a) of the Structure of the Federal Republic of Nigeria, as follows:
The manager powers vested in a State beneath subsection (2) of this part shall so be exercised as not to_
(a). impede or prejudice the train of the chief powers of the Federation.
(c). endanger the continuance of a federal authorities in Nigeria. The Nationwide Meeting has the powers to make legal guidelines for the peace, order and good authorities of Nigeria, in respect of the 68 gadgets listed within the unique legislative checklist beneath half 1, to the Second Schedule of the Structure of the Federal Republic of Nigeria, and the opposite gadgets listed on the concurrent legislative checklist in Half 2, Second Schedule to the Structure of the Federal Republic of Nigeria. See the provisions of part 4(2) of the Structure of the Federal Republic of Nigeria, 1999, as altered, which gives as follows:
The Nationwide Meeting shall have powers to make legal guidelines for the peace, order and good authorities of the Federation or any half thereof with respect to any matter included within the unique
legislative checklist set out in Half 1 of the Second Schedule to this Structure.
The Home of Meeting of a State additionally has such powers to make legal guidelines for the peace, order and good authorities in respect of the State or any half thereof and with respect to issues listed in subsection (7) (a)-(c) of part Four of the Structure, which additionally gives as follows:
The Home of Meeting of State shall have energy to make legal guidelines for the peace, order and good authorities of the state or any half thereof with respect to the next issues, that’s to say
a. Any matter not included within the Unique Legislative Record set out in Half 1, of the Second Schedule to this Structure.
b. Any matter included within the Concurrent Legislative Record set out within the first column of Half 11 of the Second Schedule to this Structure to the extent prescribed within the Second Column reverse thereto; and
c. Some other matter with respect to which it’s empowered to make legal guidelines in accordance with the provisions of this structure.
It could be preposterous for the Home of Meeting of a State to contend that as a result of it has the facility to make legal guidelines for the peace, order and good authorities of the State, it might enact a legislation for the State on a matter on the Unique Legislative Record. Such a legislation would merely be invalid and of no impact in anyway. Every of the Nationwide Meeting and the Home of Meeting of a State can solely function, orbit, or gravitate, inside the parameter, circumference, or fulcrum, laid down by the Structure. Nigeria operates a constitutional democracy, with a written Structure and the powers of every organ are to be discerned from the Structure.
See the case of AG Lagos State V AG Federation & Ors (2003) LPELR-620(SC) the place the Apex Court docket held as follows:
“Nigeria is little question a Federal Republic with a Federal Structure wherein the Legislative powers of the Federal Authorities by way of the Nationwide Meeting and the legislative powers of the State Governments by way of the State Assemblies have been clearly outlined. These encompass the Unique Legislative checklist on which solely the Nationwide Meeting can legislate; the Concurrent Legislative Record which is shared between the Nationwide Meeting and the State Assemblies and the remaining which known as the residual checklist not included within the Unique or Concurrent Record which solely the State Assemblies can legislate on. It’s subsequently the perform of the courtroom when any dispute arises on the competence of both of them to legislate on any matter, to make sure that every legislative arm operates inside its restrict as offered by the Structure. And with the intention to decide the competence to legislate as on this case, the interpretation of the related provisions of the Structure have to be invoked.”
See Gadgets 38, 45and 68 of the Second Schedule Half 1, of the Structure of the Federal Republic of Nigeria 1999, as amended. Merchandise 38 gives for, navy(Military, Navy and Air Pressure) together with some other model of the armed forces of the Federation. Nonetheless, for this text, we will be specializing in merchandise 45, which gives for the police and different authorities safety companies established by legislation(Emphasis equipped). Merchandise 68, gives to the impact that any matter incidental or supplementary to any of the gadgets talked about within the unique legislative checklist is solely inside the legislative competence of the Nationwide Meeting. By advantage of the inclusion of merchandise 45, within the unique legislative checklist, it means, that solely the Nationwide Meeting can legislate on these points, particularly authorities safety companies, established by legislation. See the case of AG Lagos State V AG Federation (2013) 16 NWLR (Pt. 1380) 383. By extension, as this stuff should not inside the legislative competence of the Home of Meeting, the State Governors, don’t have any government competence, to make any declarations, by which authorities safety might be established. See Sections 4(7) and 5(2b) of the Structure of the Federal Republic of Nigeria, 1999, as amended.
Neither the Home of Meeting nor the Governor of any State within the Federal Republic of Nigeria has any constitutional powers to determine by legislation, any safety within the federating states of the Federation, the outline or appellation of such safety, however, because the powers of the governor
and Home of Meeting of a State, are circumscribed by the provisions of the structure.
Consequently, the place the governor of a state, exceeds the boundaries of its constitutional powers as offered for within the Structure, the Courts can all the time intervene. See the case of Gov of Akwa Ibom State V Umah (2002)
NWLR (Pt. 767) 738, the place the intermediate courtroom held as follows:
In exercising his government powers, the Governor of a State should act inside the Structure and beneath any legislation validly made by the Home of Meeting of the State. In Nigerian democratic arrange, a clean or Arbitrary energy exterior the Structure and the legislation is just 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), the place it was additional held as follows by the Court docket of Enchantment;
By advantage of part 5(2) of the Structure of the Federal Republic of Nigeria, 1999, topic to the provisions of the Structure, the chief powers of a State shall prolong to the execution and upkeep of the Structure, all legal guidelines made by the Home of Meeting of the State and to all issues with respect to which the Home of Meeting has in the meanwhile energy to make legal guidelines. (P. 770, paras. D-D)13. On Restrict of powers of Governor of a State beneath part 5(2), 1999 Structure -The provisions of part 5(2) of the 1999 Structure is topic to provisions of the Structure and it implies that the part is certified as it’s rendered dependent upon and subjected to different provisions of the Structure. And, the mere indisputable fact that the Home of Meeting of a State has the powers to make legal guidelines beneath the provisions of the Structure doesn’t robotically empower the Governor to behave beneath the provisions the place the Home of Meeting has not made any legislation beneath the related part of the Structure. In any occasion, there have to be a legislation which should authorize a Governor to behave upon beneath the provisions and such a legislation should not be inconsistent with the provisions of the Structure. (P. 771, paras.A-G)
See the case of Alakpi V Gov of Rivers State (1991) Eight NWLR (Pt. 211) 575, the place it was additionally held as follows:
Per OMOSUN, J.C.A. at web page 606, paras. E-F:”The Governor is sure by the Legislation which the Authorities has made. The structure which is the supreme legislation of the land binds him. It’s not inside his powers to swap the features of the Civil Service Fee in disciplinary issues. The 1979 Structure made pro- visions for the features of the three arms of Authorities and the first respondent can not unilaterally arrogate to himself the features of any organ of the Authorities. 1st respondent’s termination of the appointment of the appellant was Arbitrary and illegal.
We submit that it’s not inside the constitutional powers donated to the Governors in Nigeria, to determine, a regional safety outfit, or state safety outfit for any function in anyway. The governors’ powers are exercised inside the gadgets for which the State Homes of Meeting have powers to make legal guidelines. The Homes of Meeting in Nigeria, by advantage of things 45 and 68 of Half 1, Second Schedule to the Structure of the Federal Republic of Nigeria, don’t have any legislative powers over authorities safety, established by legislation. Consequently, no state in Nigeria has powers to determine regional or state safety.
The legislative powers of the State Homes of Meeting can solely be exercised in accordance with the boundaries, as positioned on the State Home of Meeting by the Structure of the Federal Republic of Nigeria. See the case of A.-G., Abia
State v. A.-G., Fed.2006)( 16 NWLR,(Pt 1005) 291, the place the apex courtroom held as follows:
The Structure of a nation is the followers et origo, not solely of the jurisprudence but additionally of the authorized system of the nation. It’s the starting and the tip of the authorized system. In Greek language, it’s the alpha and the omega. It’s the barometer with which all statutes are measured. In step with this kingly place of the Structure, all of the three arms of Authorities are slaves of the Structure, not within the sense of present process servitude or bondage, however within the sense of whole obeisance and loyalty to it. That is in recognition of the supremacy of the Structure over and above each statute, be it an Act of the Nationwide Meeting or a legislation of the Home of Meeting of a State.The supremacy clause is offered for in part 1(1) of the Structure of the Federal Republic of Nigeria, 1999. All of the three arms of Authorities should dance to the music and refrain that the Structure beats and sings, whether or not the melody sounds good or unhealthy. Relating to the primary place part 1 occupies within the Structure, I regard and christen it because the golden part of the Structure, the adjectival variant of the noun gold. It’s the similar golden place in sports activities that the Structure occupies in any jurisprudence and authorized system, together with ours.
Whereas I recognise the constitutional proper of the legislatures, that’s, the Nationwide Meeting and the Home of Meeting of the States, to amend the Structure, till that’s finished, they need to kowtow (utilizing the Chinese language expression) to the provisions of the Structure, whether or not they prefer it or not.
The place the Nationwide Meeting qua legislature strikes from the constitutional purview of part 4(2) of the Structure or vice versa, because it pertains to the Home of Meeting of a State in respect of part 4(7), concern or query or constitutionality or constitutionalism arises, and courts of legislation within the train of their judicial powers, when requested by a celebration, will transfer in to cease any extra in train of legislative energy. That is what I’m doing and part 6 of the Structure is my authority for doing so.
It is just the Nationwide Meeting that may make legal guidelines incidental or supplementary to any matter, talked about within the unique legislative checklist. Consequent upon the foregoing, we submit most humbly, that the Homes of Meeting of the States of the Federation, don’t have any legislative competence to make any legislation pertaining to the safety of any State within the Federal Republic of Nigeria, as it’s the unique protect of the Nationwide Meeting given the provisions of things 45 and 68 of Half 1, Second Schedule to the Structure of the Federal Republic of Nigeria.
Merchandise 45 Half 1, of the Second Schedule to the Structure, gives as follows:
Police and different authorities safety companies established by legislation.
Whereas merchandise 68 Half 1, of the Second Schedule to the Structure, gives as follows:
Any matter incidental or supplementary to any matter talked about elsewhere on this checklist.
We submit, that given the 2 provisions above, no Home of Meeting within the Federation, has the legislative competence to legislate on any authorities safety service established by legislation, or some other matter incidental or supplementary thereto. We submit that any laws by any Home of Meeting within the Federal Republic of Nigeria, establishing any state safety, regardless of the title given to such safety outfit, is void, as similar would battle with the provisions of the Structure of the Federal Republic of Nigeria, 1999, as amended. It is usually extremely vires any state Home of Meeting to make such legal guidelines, given the clear and succinct provisions of the structure referred to, above. See the case of Chevron Ltd V Imo State Home of Meeting (2016) LPELR- 41563(CA).
We submit that, given the provisions of part 4(7a-c) of the Structure of the Federal Republic of Nigeria, and gadgets 45 and 68 Half 1, of the Second Schedule to the Structure, any legislation made by any State Home of Meeting, establishing any safety outfit in Nigeria, is null, void, invalid and of no impact in anyway. See the case of A.G. OF Lagos State V A.G of the Federation (2003) 2 NWLR (Pt. 833) 1, the place it was held as follows:
If the provisions of any legislation are inconsistent with any of the provisions of the Structure, they’re liable to be struck down beneath the “blue pencil rule” in accordance with the provisions of part 1(3) of the 1999 Structure. [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 web page 244, paras. A-D:
“The Structure is the barometer on which the constitutionality or in any other case of a statute is measured. The place a statute is inconsistent or in battle with any provision of the Structure, the availability of the statute shall be null and void. That is primarily the language of part 1(3) of the Structure.”
It is usually vital, that we x-ray the provisions of the 2nd Schedule Half 2, of the Structure of the Federal Republic of Nigeria, because it pertains to the concurrence legislative checklist, to find out, whether or not something, because it pertains to the institution of presidency safety by legislation, was offered for within the stated a part of the structure, in favour of a state Home of Meeting.
The Home of Meeting of a state can solely legislate on 13 gadgets, on the concurrent legislative checklist, in Half 11, Second Schedule of the Structure of the Federal Republic of Nigeria as follows:
1. Grants and Loans. 2. Antiquities and Monuments. 3. Archives and Public Data. 4. Assortment of any Tax, charge or price. 5. Legal guidelines with respect to the election of native authorities Council. 6. Electrical energy, its distribution and transmission in a state. 7. Censorship of cinematograph movie and to ban or prohibit the exhibition of such movies. 8. Industrial, business or agricultural growth. 9. Scientific and technological analysis. 10. Statistics. 11. Trigonometrical, cadastral and topographical surveys. 12. Institution of an establishment for the needs of a college, technological or skilled training.13. technical, vocational, submit main, main or different types of training.
See the case of A.G. Lagos State V Eko Resorts Ltd (2006) 18 NWLR (Pt. 1011) 378, the place the Supreme Court docket held as follows:
Beneath part 4(7) of the Structure of the Federal Republic of Nigeria, 1999 the Home of Meeting of a State is restricted to make legal guidelines on issues not included within the Unique Legislative Record set out partly 1 of the Second Schedule to the Structure. It may solely make legal guidelines on issues included within the Concurrent Legislative Record set out within the first column of half II of the Second Schedule to the stated Structure, to the extent prescribed within the second column reverse thereto. The Home of Meeting of a State also can make legal guidelines on some other matter with respect to which it’s empowered to make legal guidelines in accordance with the provisions of the Structure. The subsection clearly vindicates the idea 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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