Amotekun is unconstitutional, Malami insists as Southwest Governors say no going back


The Minister of Justice and Attorney General of the Federation (AGF), Abubakar Malami (SAN) on Thursday insisted that the inauguration of a paramilitary organisation Amotekun by south-western states of the country is contrary to provisions of the law. But the Chairman of South-west Governors Forum and Ondo State Governor, Chief Rotimi Akeredolu (SAN), ruled out scrapping the South-west security network, Amotekun, on account of the federal government’s opposition to its establishment.


“The setting up of the paramilitary organization called ‘Amotekun’ is illegal and runs contrary to the provisions of the Nigerian law,” Malami said in a statement by his media aide Umar Jibrilu Gwandu. “The Constitution of the Federal Republic of Nigeria 1999 (as amended) has established the Army, Navy and Airforce, including the Police and other numerous paramilitary organisations for the purpose of the defence of Nigeria.”


Nigeria’s south-western states, Lagos, Ogun, Oyo, Ekiti, Ondo and Osun launched Amotekun on Thursday, January 9 in Ibadan, as its security outfit to tackle kidnapping and other criminal activities in the region. The state governors said the security network will complement the efforts of the Nigerian Police Force and other agencies in ensuring the security of lives and properties.


However, days after the launch, the Nigerian government declared the security network as illegal, saying no state or group of states has the power to set up its own security outfit. “No other authority at the state level, whether the executive or legislature has the legal authority over defence,” Malami said.


He said government’s position against the security outfit is powered by “the provision of Item 45 of the Second Schedule of the Constitution of the Federal Republic of Nigeria (as amended) authorizing the Police and other Federal government security services established by law to maintain law and order.”


Malami, on Tuesday, had maintained: “No state government, whether singly or in a group has the legal right and competence to establish any form of organisation or agency for the defence of Nigeria or any of its constituent parts,” saying the Southwest states did not consult the government for guidance on the matter.


But prominent lawyers including legal luminary, Aare Afe Babalola, faulted Malami’s pronouncement, saying Amotekun “is absolutely constitutional and legal.” In a statement titled, ‘No law prohibits the establishment of Amotekun,’ Babalola said: “The issue of Amotekun is an issue of public safety and protection of property. There is no law in Nigeria, which prevents citizens from being able to secure their life and property. The Nigeria Police does not enjoy exclusive jurisdiction when it comes to the protection of life and property. As a matter of fact, in many parts of Nigeria, various outfits such as Civilian JTF, Hisbah Police and vigilantes have been performing the duty of protecting life and property.”


He added: “Given the provisions of the Criminal Code in Sections 272-275, the right of citizens to arrest any person for committing an offence is legal and may be exercised individually or communally. In any event, the regional community security outfit known as Amotekun cannot be set aside by oral pronouncement by the Attorney General or any other body. Only the court of law can declare the establishment illegal.”


Similarly, Chief Bolaji Ayorinde (SAN) said the Attorney General does not have the power to declare Amotekun illegal. He advised Malami to go to court if he feels strongly about the matter. “I see no controversy about this matter. Do I need court pronouncement to engage private security guards and provide them with vehicles and uniforms? There is nothing strange in what the southwest governors did. They can see Malami’s comment as his opinion and not the position of the law, which only the court can interpret.”


At the 16th Gani Fawehinmi Annual Lecture organised by the Nigerian Bar Association (NBA), Ikeja Branch, yesterday, a former NBA president, Dr. Olisa Agbakoba (SAN), said: “What they (governors) are doing is not policing but security measures,” implying they have not breached the constitution. Human rights lawyer, Femi Falana, who was also at the event, said the governors are only trying to protect their people in line with the constitution. According to him, what the law expressly forbids is the establishment of a military wing.


Abuja-based lawyer, Abdulaziz Chuba Ogbui, said: “When there is a dispute between a state and the Federal Government or between a state and state, they go to the Supreme Court. The issue of jurisdiction may arise because the southwest zone is not a legal entity recognised by the constitution. Each of the southwest states is autonomous and they cannot sue or be sued as an amalgam of states. When that hurdle is crossed, the issue of whether they can establish an armed force as a regional power constitutionally will arise. If allowed, a Biafra situation may resurrect.”


Kano-based lawyer, Abubakar Sani, said: “Only the National Assembly can regulate security services sponsored or promoted by governments at any level…either state or federal (including even local governments). In other words, I expect the Supreme Court to align itself with the provisions of Item 45 of the Exclusive Legislative List of the Constitution. “With Tanko in charge, the Supreme Court has assumed a decidedly conservative, pro-Buhari, pro-’Arewa’ hue. So, it will likely side with the attorney general (therefore, Buhari). But we have to keep our fingers crossed.


Nobel Laureate and social critic, Prof. Wole Soyinka, at a media briefing in Lagos yesterday said a serious government that cares for its citizens would not object to Amotekun. “The initiative is quite legal and constitutional and in any case, the Federal Government should go to court,” he said. Soyinka said having “some people who have been sleeping all this while, taking belated actions, who watched all the security threats that citizens suffer saying the initiative is illegal and unconstitutional is unacceptable.”


According to him, Amotekun is not only appropriately required, but also long overdue. He said: “I’ve always believed passionately in self-policing. If it is possible to eliminate any kind of formal policing, I will be forward. But there is a need for an organised security. “To say that the people do not have a right to defend their lives, secure a livelihood and flush out the evil elements and pick up the slack that existing securities are unable to fulfill is an enemy action and inhumane.”


In an open letter to Malami yesterday, the Aare Ona Kakanfo of Yorubaland, Gani Adams, said: “It is unfortunate that rather than praise the governors, you are condemning their action, thereby strengthening the hands of those who believe the Federal Government is against some sections of the country.” He said: “As a lawyer and a Senior Advocate, you should know that you are not the law. You are only the attorney general, not a court. It is only a court of competent jurisdiction that will decide if what an individual, group of individuals, an entity or a state does is legal or otherwise.


“I don’t need to bother you about killings, kidnappings, banditry, and other criminal vices in the southwest recently. Even Mrs. Funke Olakunrin, the daughter of Yoruba leader, Pa Reuben Fasoranti, was killed and nobody has been arrested in respect of all these killings. One thing is clear, Nigerians have the right to protect themselves. Not only that, southwest people have a right to protect and defend themselves against attacks. Amotekun is an initiative by the southwest governors to defend our people.”

Also, the chairman of the South West Governors Forum and Ondo State Governor Rotimi Akeredolu said the six governors of the region were committed to the success of Amotekun. According to him, the declaration by Malami that the security outfit is illegal would not impede its full operation. The governor, who stated this during the 2020 Armed Forces Remembrance Day celebration in Akure, maintained that Amotekun would complement the efforts of other security agencies.


His Oyo State counterpart, Seyi Makinde, told journalists after a closed-door meeting with former President Olusegun Obasanjo that Malami “cannot just wake up and make his own laws. He may interpret and advise the president if there are legal issues but I haven’t seen anything that gives power to the AGF to make such a declaration.”


Several Yoruba groups also took a swipe at Malami, denouncing his declaration as faulty. The Oodua Youth Coalition (OYC), in a statement by National President Oluyi Akintade Tayo and National Publicity Secretary Oluwagbenga Ajongbolo, rejected Malami’s stance.


“We won’t wait till insurgents, kidnappers, highway robbers, ritualists, armed bandits, and other criminals run over us and turn us into refugees in our own land. Is this what Malami or Buhari want? We will do everything to support these brave governors as they work tirelessly for a more secure South West people and states,” the coalition said.


The Oodua Youth Parliament (OYP) said: “The entire Yoruba race will only accept Amotekun as illegal if the Federal Government also declares Civilian JTF, Hisbah, Gato De Gora and Sharia police illegal.”

It added: “Failure to do so, we reject the statement of the Federal Government through the attorney general in totality, and we will do anything within the ambit of the law to stand against this injustice and sectional decision of the government.”


The Yoruba Council of Elders (YCE), on its part, described Malami’s position as an “aberrant” opinion. “The attorney general has just expressed his personal opinion, irrespective of the position he holds,” YCE National Secretary Kunle Olajide noted. He said further: “You have security failures in the north, everywhere. In fact, it has been a bitter experience for us in the southwest. Our people have been kidnapped, raped, and murdered.


On its part, the National Association of Nigerian Students (NANS) condemned Malami’s position at a press conference in Abeokuta, the Ogun State capital, urging the government not to play politics with the lives of people. The Zone D coordinator, Kowe Odunayo, who spoke on behalf of the association appealed to southwest governors to “stand on their feet and ensure the laudable initiative is not killed by the enemies of our peace.” He declared that NANS is willing “to support in its entirety all that Amotekun stands for because Amotekun has come to stay.”