By Femi Falana
My position on the amotekun debate is not based on sentiments but on the relevant provisions of the Constitution and decided cases of our courts. The
Attorney-General of the Federal Government and Minister of Justice, Mr. Abubakar Malami SAN has unequivocally asserted that amotekun is illegal and unconstitutional on the grounds that defence is an item in the exclusive legislative list. He also said that it is illegal for states governments, either singly or jointly to set up any security outfit under the current democratic dispensation. Of course, Mr. Malami knows that I do not agree with him that amotekun is illegal simply because the enabling law has not been enacted. The fact that the office of the special assistant to the Attorney-General of the Federal Government and Minister of Justice on media is not a creation of the Constitution does not make it illegal!
On a more serious note, I was not surprised that the federal government was initially opposed to Amotekun. Like Amotekun the Sharia State Police callled ‘Hisbah’ was ferociously attacked by the federal government. Even though Hisbah was established by the Kano State Hisbah Law No 4 of 2003 the federal government said it was illegal. In fact, in a letter addressed to the Kano state government, President Olusegun Obasanjo expressed concern over the constitutionality of Hisbah. Thereafter, the President sent a fact finding delegation to Kano on the matter. Based on the antagonistic posture of the federal government the Nigeria Police Force took steps to outlaw the Hisbah. Apart from declaring the Hisbah illegal and unconstitutional the Police arrested the commander-general of Hisbar and his deputy in Kano and took them to Abuja where they were detained.
When the harassment of the Hisbah by the police continued unabated the Kano state government approached the supreme court to test the constitutional validity of the Hisbah Law. Curiously, the supreme court struck out the suit for want of jurisdiction on the grounds that there was no dispute between the the federal government and the Kano state government on the existence and operation of Hisbah. See Attorney- General of Kano State v. Attorney-General of the Federation (2007) 6 NWLR (Pt 1029) 164.
Even though the suit was struck out on technical grounds the Police stopped further harassment of the Hisbah. Since then other state governments have set up similar security outfits to enforce Sharia Law or protect the general public from kidnapping, armed robbery and other violent crimes.
I have called on the south west state governments to enact the necessary laws to back the establishment of Amotekun in order to institutionalize it as I believe that it has come to stay. It is indisputable that the six states in the south west zone has no joint parliament. Hence, I have called on each state house of assembly to enact a law for the establishment of amotekun. However, since the six states have been been grouped together and recognised as the “south west zone” by the Federal Character Commission Act (Cap F7) Laws of the Federation of Nigeria, 2004 they are not precluded from collaborating in securing the life and property of every person living or visiting the region. After all, the federal government has never challenged the legality of the Odua Investment Company Limited, the economic union of the six states in the south west zone.
Finally, instead of apologising for misleading the nation on the legal status of the security outfit the Attorney-General has decided to attack me without any justification. Notwithstanding such unwarranted attack, I am of the view that the belated volte face of the Attorney-General on Amotekun is a welcome development.
-Femi Falana, civil rights fighter, is a Senior Advocate of Nigeria