Operation Amotekun & the Attorney-General’s Legal Advice: A Legal Opinion on the Way Out of Nigeria’s Insecurity Logjam (Part 1)
By Sylvester Udemezue
Governors of the six states that make up the Southwest geopolitical zone of Nigeria recently launched a new security outfit known as Western Nigeria Security Network (WNSN); and code-named “Operation Amotekun.” The launch took place in Oyo State on January 09, 2020. The network, according to the Governors, is expected to complement the efforts of the Nigerian Police Force in combating kidnapping, armed robbery, and other security challenges in the region.
The security network agreement had earlier been entered into in Ibadan, Oyo State in June 2019, at a regional security summit attended by governors and leaders in the Zone. The summit was a reaction to the worsening security situation in the region. The Governors have explained that they had secured a green light (for the establishment of the outfit) from President Muhammadu Buhari with inputs from the Inspector-General of Police (IGP).
However, soon after the setting up of the Security Network, the Attorney-General of the Federal Republic of Nigeria, through a statement issued by one of his Personal Assistants, declared “Operation Amotekun” illegal. The Statement by the Attorney-General gave its own reasons for declaring the outfit illegal: “The setting up of the paramilitary organisation called Amotekun is illegal and runs contrary to the provisions of the Nigerian law.
The Constitution of the Federal Republic of Nigeria 1999 has established the army, navy and air force, including the police and other numerous paramilitary organisations for the purpose of the defence of Nigeria. As a consequence of this, 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.
This is sanctioned by the provision of Item 45 of the Second Schedule of the constitution of the Federal Republic of Nigeria, authorising the police and other federal government security services established by law to maintain law and order.”
The Attorney-General`s statement has generated a lot of tension and reactions. While some described the position of the Attorney-General as partisan, political, tribal, oppressive, discriminatory and so on, others argue that there was nothing wrong nor illegal in setting up Amotekun as the southwest has done. Some others have tried to draw some comparison between Operation Amotekun, on the one hand, and outfits such as Hisbah (Sharia Police, operating in some states in the North), LASTMA (Lagos Sate Traffic Management Agency) in Lagos, and similar outfits in some states in Nigeria.
I think Operation Amotekun is not different from those other groups/outfits. And my major headache is not whether the Southwest states can establish Amotekun, as it has done, but whether any such outfit can be said to have been properly or validly established in the absence of an Enabling Law for that purpose. I respectfully believe that if the southwest or any of its component parts, or indeed anyone, goes to court over Operation Amotekun, as it is currently constituted, two major questions might arise for determination:
(1) Does a State in Nigeria possess the constitutional or legal power to establish a body such as Amotekun? and (2) If the answer to question (1) is in the affirmative, then, was the current Amotekun validly established? In other words, was due process of law followed in setting up Amotekun?
While I personally am of the respectful opinion that each State in Nigeria reserves the right to establish and operate such body (and some States have already done so, especially in the North and parts of the south, as I pointed out above), I doubt any such group can be said to have been validly established without relevant Enabling Law or Laws to define its legal status, define and delimit its powers and set out its mode and scope of operation.
If an Enabling Law had been so passed by the House of Assembly in each of the states that make up the Southwest, establishing Amotekun, it would have been easy for anyone to disinterestedly assess Amotekun and be in a proper position to analyse and offer opinions on whether the outfit was legitimately established, whether there has been any breach of the Constitution or whether each of the relevant Houses of Assembly has or has not exceeded its powers under the Constitution in view of the existing Legislative Lists in the Constitution of the Federal Republic of Nigeria, 1999, as amended.
Status of the Statement by the Hon. Attorney-General of the Federation (AGF) Declaring Amotekun “Illegal”
I am not going to delve into the question as to whether, in making the declaration as he did, the AGF was influenced by considerations other than legal or constitutional. My opinion would not extend to addressing the political allegations. I would as always restrict myself to law and only the legal by analysing the AGF’s statement from only the legal perspective. Some lawyers have argued that the AGF not being a court of law, lacks powers to make any such declaration, as he has made.
I respectfully beg to disagree with such view.
In my humble opinion, the statement issued by the AGF is nothing more nor less than a legal opinion by the chief law officer of the federation. It was a mere legal opinion which was in the form of a LEGAL ADVICE to the affected states. Anyone else could as well have offered his or her opinion on the legality or otherwise of the Amotekun. There’s nothing strange nor judicial in such. One option available to affected states, indeed to anyone else, in the face of the AGF’s opinion, is to issue a rejoinder to any such statement/opinion. Another is for the affected region/zone to begin an objective reappraisal of the entire circumstances with a view to ensuring that it is on the right course.
I do not think the Hon AGF has exceeded his powers in having issued the said statement neither could it be said that the Hon AGF has thereby constituted himself into a court of law or that he has in any manner usurped the position of Courts of law. The AGF is entitled to issue such or any legal advice, which however is not binding on the Amotekun States. It is left for those so advised to either heed the legal advice or to ignore/reject it and proceed with Operation Amotekun. Condemning the AGF for merely offering an opinion is unwarranted, except perhaps there are other grounds (beyond law, and the legal) for deprecating such statement. And as I have noted, I refrain from delving into such non-law allegations.
Likely Consequences of Ignoring the AGF’s Legal Advice on Operation Amotekun
I foresee two likely outcomes: (1) If the Amotekun States ignore the AGF’s Legal Advice and continue with Amotekun, the AGF or any other aggrieved Nigerian or group of Nigerians may approach a court of law with prayers that Amotekun be declared unconstitutional, illegal, while its existence and operations be restrained by court orders; or (2) The Federal Government may unfortunately roll out its Federal military might to stop the existence or operations of the Amotekun.
This option, the FG might adopt by directing relevant security or law enforcement agencies to take all steps within their powers to halt Amotekun, and this may result in physical confrontations between the Amotekun boys and ladies and the federal law enforcement agencies. We do not need any such avoidable confrontations as they do not augur well for the peace, progress and unity of Nigeria especially at this very critical time in the history of our nation. The confrontations between the Federal Government and the IPOB boys resulting directly from IPOB’s setting up of a BSS (Biafran Security Services) is still recent in our memories.
Recommendations to All Parties on “Operation Amotekun” & Related Matters
First, I recommend that all stakeholders in the southwest (including lawyers in the region) should forthwith convoke an emergency meeting to review the Legal Advice by the AGF & to discuss all legal and other implications of establishing an Amotekun, and if they believe that establishment and operation of an outfit such as Amotekun is lawful, they must advise or persuade each of the constituent States in the Zone to immediately kick-start procedures and processes to enact a Law formally establishing Amotekun as a vigilante or other group within its territory, and clearly defining its status, powers and modus operandi, as I have advised above.
In this way, the second likely consequence (unhealthy, physical confrontation) would have been completely avoided. Of course, if Amotekun is legally established and backed up by enabling laws, anyone who feels aggrieved would have only one option: to proceed to court to challenge its existence, operations or any part of the enabling law.
Second, and this is closely related to the Amotekun controversy, I respectfully suggest that the office of the Attorney-General of the Federation (AGF) should as a matter of extreme urgency issue a Legal Advice to the Federal Government on the operations of Herdsmen across the country. I honestly believe that it was the illegal and clear terrorist actions and operations of the herdsmen and clear impunity with which they perpetrate these atrocities against Nigeria’s indigenous population, that had necessitated or contributed to such SELF-PRESERVATION efforts (by some sections of Nigeria) as is now seen in the establishment Operation Amotekun.
This is why many welcome ‘Operation Amotekun’ as a child of necessity! Besides, what is sauce for the goose is sauce also for the gander; if the office of the AGF believes that no state in Nigeria is empowered by the constitution to set up or operate self-preservation vigilante groups such as Amotekun, then the AGF should feel himself equally obliged to advert his LEGAL-ADVICE mind to whether any part of the same Constitution of the Federal Republic of Nigeria, 1999, supports or excuses the violent and terrorist activities of herdsmen across Nigeria — activities which range from continual killing and mass murder of indigenous Nigerians, unrestrained banditry, kidnapping, destruction of farmlands and properties of Nigerians to so many other atrocious and constitutionally abominable activities, including incessant rape of our women and children.
Most Nigerians believe that these herdsmen perpetrate their nefarious operations with impunity. Many a Nigerian is of the opinion that if our leaders had taken very drastic steps to curtail the terrorist actions of these herdsmen, setting up of groups such as Amotekun would hardly having been likely or necessary. Many believe that indigenous Nigerians are entitled to live and farm on their ancestral lands without any form of interference by members of the Miyetti Allah or herdsmen. Most Nigerians are no longer able to sleep with their two eyes closed. The fear of killer herdsmen is now the beginning of wisdom.
In most parts of Nigeria, the situation has got so bad that it is now either you surrender your ancestral land for forcible cattle grazing or you lose both your life and your land! Nigeria is obviously under siege! And we all appear to siddon dey look. This is what necessitated self-protection and self-preservation outfits like “Operation Amotekun!” We must call a spade by its name. Writing in his book titled, “The Vicomte de Bragelonne,” author Alexandre Dumas said: “there are no creatures that walk the earth, not even those animals we have labelled cowards, which will not show courage when required to defend themselves.”
In summary, I humbly recommend the following two steps for an urgent consideration in relation to the menace of herdsmen
(a) OPEN GRAZING OF CATTLE IN NIGERIA IS ILLEGAL AND UNCONSTITUTIONAL AND SHOULD BE BANNED WITHOUT ANY FURTHER DELAY, FOR NIGERIA TO MOVE FORWARD IN PEACE, LOVE, UNITY, AND GENUINE PROGRESS: The Hon AGF should immediately issue Legal Advice to Government to seriously consider placing a BAN on any form of open grazing of cattle in Nigeria. As long as such illegal open grazing is allowed to continue, as is currently the case, the problems perpetrated or caused by herdsmen to Nigeria and in Nigeria would continue, and outfits such as Operation Amotekun might continue to spring up, and tensions would continue to move higher and higher. Nigeria does not need all these unnecessary distractions. The whole world makes genuine progress while we are here still battling to stand and unite. Drastic steps to curb the illegal actions of herdsmen would help to render groups like Amotekun unnecessary, I repeat.
In this wise, I humbly urge the Hon AGF to please seriously consider the wise counsel by Governor Ganduje of Kano State: “Movement of herdsmen to the south should be banned”
(b) In my humble opinion, there’s nothing like FARMERS-HERDSMEN CLASHES in Nigeria. It’s deceptive for anyone to refer to the terrorist aggression by herdsmen against Nigeria as “farmers-herdsmen classes.” What we have had is a clear case of Herdsmen terrorising innocent Nigerians on their farms, in their homes and on their ancestral lands. For those who argue that a farmers-herdsmen clash exists, let us consider this poser:
On whose land do the “farmer-herdsmen clashes” happen? My Answer: is this: If a fight breaks out between Ade and Okon in Ade’s house, the necessary reasonable presumption (albeit rebuttable) is that it was Okon that went to Ade’s compound to provoke or foment trouble. Why are we not addressing or seeing this issue that way? What are herdsmen doing in another man’s ancestral land, without the land owner’s prior approval? The proper, LEGAL approach is that the herdsmen should apply for grazing-land from the land owners. If the land owners give them land, so be it; if the land owners refuse, let the herdsmen carry their bags and cows and go back to their own states and land or, alternatively, stay back in the host states and do other legitimate businesses. This is the true meaning and interpretation of the constitutional right to “live and work in any part of Nigeria.” Live and work must be seen to mean “be law-abiding and be not a bully nor a terror unto your host state.”
THE CONSTITUTIONAL RIGHT OF ALL NIGERIANS TO LIVE AND WORK IN ANY PART OF THE COUNTRY DOES NOT PERMIT ANYONE TO GO ON ANOTHER’S LAND WITHOUT THAT OTHER’S PERMISSION. Look at this scenario for clearer illustration of the point I try to make:
Okon, from Rivers State, is a farmer, producing yam, cassava, coco yam, etc, on his own (Okon’s) ancestral land. Ade, an indigene of Ogun State, is a livestock farmer (a herdsman) rearing cattle. Now, Ade takes his cows and travels to RIVERS State; goes on Okon’s land, and (without Okon’s knowledge or consent) begins to graze his cattle on Okon’s ancestral land and in the process, destroying Okon’s farms, crops, and lands. In reaction, Okon, frustrated after several warnings and pleadings, takes a stick or whatever and hits a cow.
Then, Ade gathers/mobilizes fellow killer herdsmen and they attack Okon’s house and village, in the night, killing Okon’s kith and kin, destroying houses, properties and human lives. Then, the press/newspapers and governments tell us there was/is a farmer-herdsman clash.
The above scenario shows pure injustice against OKON and his people, and against OKON’s village and villagers. It is not a mere clash, neither is it a two-fighting scenario. It is pure terrorism. The herdsmen ought to be immediately cautioned to either acquire land legitimately for cattle-grazing in their host states, or to take their cows and go back to their own land. Until we adopt this approach to the so called “farmers-herders crises,” these problems might never end. Nigerians are tired of being killed as chicken and common animals by people who come on their lands illegally.
A couple of years ago, a group of herdsmen announced openly to Nigerians that they had organised and killed over 80 persons (human beings) in a village in BENUE State, only because the villagers had earlier “killed” their cows. Is it not absurd to compare human life to the lives of cows? Only in our society, Nigeria! The other day, Governor Obiano of Anambra State reportedly warned killer herdsmen that they (the herdsmen) would thenceforth pay N500,000 (five hundred thousand naira) for every Anambrarian killed by herdsmen.
This means, indirectly, to Mr. Obiano, that a human head is now worth just N500,000. Is that not an indirect license on herdsmen to go ahead killing people, provided they pay N500,000 for each human head killed (https://www.google.com/amp/s/elombah.com/fulani-to-pay-n500000-if-they-kill-anyone-in-anambra-obiano/amp/).
Furthermore, when the Commissioner of Police, Zamfara State warned herdsmen to cease acts of banditry or be prepared to face the law’s wrath, the head of the herdsmen had responded that banditry would continue for as long as the native Zamfara land owners refused to allow unhindered open cattle-grazing. (see, ”End banditry in two weeks, Zamfara CP orders Miyetti Allah” on. https://www.google.com/amp/s/punchng.com/end-banditry-in-two-weeks-zamfara-cp-orders-miyetti-allah/amp/). This means that herdsmen are now above the law.
THE MOST ANNOYING PART OF ALL THESE IS THAT THERE IS LITTLE OR NO EVIDENCE THAT THESE HERDSMEN ARE EVER BROUGHT TO FACE THE LEGAL CONSEQUENCES OF THEIR ATROCIOUS ACTIONS; this fuels the impression among many a Nigerian that these herdsmen are ABOVE NIGERIAN LAWS and may have the backing of our leaders to continue their unscrupulous actions with impunity. Else, why do Miyetti Allah leaders feel bold enough to take and accept responsibility for mass murder of Nigerians and no one does anything to call them to order?
Why do Miyeti Allah leaders feel bold enough to accept responsibility for banditry, and threatening to continue, and yet no one arrests or prosecutes their leaders, at least to show Nigerians that Miyetti Allah is not above the law? Governor Ganduje’s honest, statesmanly and pro-Nigerian suggestion, as I pointed out above, is the permanent panacea to this ugly menace, if we truly want to tackle the problem once and for all. Government should ban open grazing and free movement of cows/cattle all over the country.
Cattle owners and all Herdsmen should go and settle in the various RUGAs built in states that have accepted RUGA. And RUGA must not be forced upon any State that does not want it. The land mass in the states that have already accepted RUGA, are more than enough for the herdsmen to ranch their cattle. Besides, herdsmen and cattle owners are free to either purchase or otherwise legitimately (I emphasise, LEGITIMATELY, and not by force) acquire land in any state, for cattle-grazing purposes. The Government has an urgent responsibility to immediately stop these herdsmen from terrorising Nigeria. T
his is why I think it is high time the AGF also issued a statement and offered Legal Advice to the Federal Government on how curb the nefarious activities of herdsmen across Nigeria. I repeat that respected Governor Ganduje’s advice must be given serious attention without any further delay. Likewise, Mr. Femi Adesina’s unfortunate declaration must be retracted immediately: “Giving Land For Ranching Better Than Death,” says Femi Adesina. (https://www.google.com/amp/s/www.informationng.com/2018/07/giving-land-for-ranching-better-than-death-femi-adesina.html/ampaccessed 18 January 2020).
There’s NO segment of the Nigerian Constitution or any law in Nigeria, under which any Nigerian citizen is placed UNDER ANY OBLIGATION to surrender his ancestral land for cattle-grazing or for settlement of any group in Nigeria, just as there is NO section of the Nigerian Constitution that permits any Nigerian to use his own business to destroy another Nigerian’s property or life the way herdsmen have been doing with impunity.
Further, there is no law in Nigeria that permits anyone to exercise his own fundamental right to the detriment of or in total disregard of the fundamental rights of other citizens (as the herdsmen are doing). The welfare and wellbeing of cattle should not be allowed to prevail over the wellbeing and welfare of Nigerian citizens.
The rights of animals should not be preserved to the detriment of the lives of human beings. If we fail to resolve to immediately curtail the terrorist activities of herdsmen, such would continue to cause serious problems in Nigeria. I end by restating that Nigerians are entitled to have peace in their farms and their homes. Herdsmen and their terrorist activities constitute a seriously danger to the lives and properties of indigenous peoples of Nigeria. Open grazing by herdsmen and their wanton destruction of properties and lives of Nigerians are clear unconstitutional acts URGENTLY deserving of the AGF’s Legal Advice and Government’s immediate action as suggested above.
WHAT IS SAUCE FOR THE GOOSE IS SAUCE FOR THE GANDER!
Back to Operation Amotekun, it is truly shocking that states in the southwest had failed to advert their minds to the implications of establishing such an outfit without any ENABLING LAW. Did they not previously seek Legal Advice from legal experts among them? The southwest has and also harbours some of the best brains in the legal profession in Nigeria; I am certain that if the governors and leaders of the region had sought legal advice, they would have been properly guided and the current tensions would have been considerably avoided.
I personally believe the leaders of the southwest had acted hastily, out of anger, following and flowing from recent events and developments in the region especially in the area of INSECURITY — ranging from the terrorist activities of herdsmen, increasing cases of kidnapping, to banditry and murder of prominent south-westerners, rape of women and children in the southwest and other parts of the country to wanton destructions of farmlands and properties by invaders masquerading as herdsmen. Leaders of the region must have felt genuinely ANGRY.
But anger can be blinding. This is why prolific writer, Sue Cartwright who goes under the pen name “Nikki Sex” observed that an angry man rarely stops to let facts get in the way of his fury. Yet, it is when one is angry that one is expected to exercise the most care, so as to not allow one’s anger to push one into grave errors. As Chaim Potok (1929-2002), American Jewish author and rabbi once stated: “It is when you are angry that you must watch how you [act].” Yes, anger is a valid emotion, but becomes bad when it takes control of you and makes you to do the things you should not do.
Those behind the Amotekun had allowed anger to take control, hence, they had acted hastily and in the process forgot what the law says on this matter with respect especially to procedure for legally establishing such a laudable SELF-PRESERVATION outfit. It is however not too late to take the right steps. Let all those who have ears hear.
I humbly submit.
And the above is my unsolicited advice to all parties. Although it is said that giving advice is a thankless exercise, yet there’s one obviously interesting thing about advice; this is well-captured in the words of Matshona Dhliwayo: *”Bad advice will blind you, good advice will instruct you, but excellent advice will enlighten you, and transcendent advice will elevate you.” Accordingly, as suggested by an Indian author and entrepreneur, Mohith Agadi, “when one sees good advice, one should not only listen to it, but should also take it.”
Sylvester Udemezue (UDEMS)
(Nigerian Legal Practitioner)