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State Governors and Policing Under the Constitution by Dr. Sam Amadi

The ongoing #EndSars protests highlight the importance of the role of state governors in managing security in their states. It also raises question about the relationship between the governors as chief executives in their states and the police as a federal establishment. The governors have often failed to take simple managerial actions required of any chief executives to protect lives and property in their states. Such actions would be necessary in private establishment to protect business continuity. It is true that the state as public institution is different from business as private enterprise. But the same degree of care and diligence is required of chief executives of both enterprises. The question is why state governors are prone to do nothing regarding security in their states and always look to the Inspector General of Police for every desired intervention. My explanation for this failure is that these governors incorrectly understand the constitutional delineation of duties and responsibilities of different levels of government in security management. They wrongly presume that since police is a federal agency and the legislative jurisdiction of states is excluded from police as an item in the Exclusive Legislative List in the constitution, state governors have no role to play regarding security in the states.

Clearly, the Nigerian police is a federal agency that has responsibility to police the entire country. Presently there is a growing clamor for state police. But for now, we are stuck with federal police that is centralized in terms of command and control. This constitutional reality wrongly creates a sense of helplessness by state governors who are usually styled chief security officers of their states. Truly, these governors are not as helpless as they act, or rather ought not to be so helpless.

The #EndSars protests show that the government can rise up to responsibility if they have the proper understanding of the constitutional design of security management in Nigeria. While President Buhari has remained mostly in the basement, as it were, the governors have stepped out to engage the protesters and express support for the campaign to end police brutality. Their association, the Nigerian Governors Forum, has declared support for the campaign to end police brutality. Some of the states with the most notorious cases are where the protests are most intense, and their governors have come out to passionately appeal to the protesters and express dismay at the brutality and criminality of members of the SARS. The governor of Lagos State rushed to State House to speak to the president on the threat posed by the protests and to plead for intervention.

The surprise is why the governors did not act to restraint the criminality of SARS in their states before the protests. There have been many reports of brutal extrajudicial killings by SARS, but no state governor took action to deal with these constitutional violations. The Amnesty International (AI) reports that the Police extrajudicially killed about 122 persons in about 9 months in 2020. Yet we did not hear about any judicial inquiry or legislative hearing on those brutalities and killings. Are state governors that helpless in matter of law enforcement and state security?

This raises concern about the powers of state authorities in Nigeria’s federalism. What really is the proper constitutional relationship between state governors and the police in Nigeria? How should the states be governed in the context of the federal exclusive jurisdiction over police and the Nigerian Police? I argue that the exclusive federal legislative jurisdiction established under the constitution does not in any manner disqualify state governors as chief executives and chief security officers in their states from taking responsibility to manage security in their states. Thus, it is clearly a failure of leadership for these governors to do nothing while law enforcement become roguish in their states because of the false assumption that states have no power in matter of law enforcement. This is clearly a misunderstanding of the constitution and the federalism design in the constitution.

Chairman of the Nigerian Governors Forum, Dr. Kayode Fayemi and members at an NGF meeting.

Section 241 of the Constitution creates a ‘Police Force for Nigeria’ to be called ‘The Nigerian Police Force’ and excludes the establishment of any other police force in Nigeria. The federal character of the ‘Nigerian Police Force’ is further reinforced by the Nigerian Police Act. This means that we cannot have state police or community police except as a department or branch of the Nigerian Police. Again, the structure of the management of the Nigerian Police under the constitution, particularly the Nigerian Police Council and appointment and control of the Inspector General of Police make it clear that the police is a federal agency.

The constitution also makes police a matter exclusively in the legislative jurisdiction of the federal legislature. Section 4 (2) of the Constitution provides that ‘The National Assembly shall have power 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 Exclusive Legislative List contains ‘Police and other government security agencies established by law’ as one of the subject matters that the federal legislature can make law to the exclusion of the state legislature. Section 4 (7) of the constitution grants the House of Assembly of the state ‘power to make law peace, order, and good governance of the State or any part thereof with respect to the following matters” that is not on the Exclusive Legislative List, that is on the Concurrent Legislative List and any other matter necessary for good governance. Interestingly, there is no mention of ‘security’ either in the Exclusive Legislative List or the Concurrent Legislative List.

The element of the federalism design of the country that comes out of these sections is that whereas the federal legislative is exclusively responsible for legislating on ‘Police and other government security agencies established by law’, the state legislative assemblies have responsibility to legislate on other forms of security issues by express omission of security among the stipulated items in the Exclusive Legislative list. More so, the competence to legislate for ‘peace, order, and good governance’ of a state’ includes legislating on security matters provided they do not relate to police as an agency.

Section 5 of the constitution provides for the executive power of president and governors of the states. By this section, the executive powers of the president of Nigeria and the governors of the states relate to the legislative competence of the federal and state legislatures, respectively. Therefore, where the federal legislature has competence over a matter, the President has executive power over the subject matter. Similarly, where the state legislative has competence on a subject matter, the governor has executive power over such subject matter. The extent of the powers of the president and the governors is determined by the scope of the legislative competence of the federal and state legislatures.

One element stands out on federalism from the constitution. The powers of the president and the governors are determined by the scope of the legislative competence of the federal and state legislatures. The section 5 powers of the president and the governor embody three distinct functions. The first is function comprised in the office of the Chief Executive. The president is the chief executive of the federal government and therefore has responsibility to enforce and implement the constitution and the laws made by the federal legislature. The president also manages the federal bureaucracy and directs policies and executes programs that achieve the strategic economic and social objectives of the federation. The president is also the commander-in-chief of the armed forces when it comes to matters of defense of the country’s territory from external aggression. The final function flowing from Section 5 power is that of ‘sole organ’. In foreign policy, the president is the sole organ that represents the entire and sign diplomatic commitment on behalf the country or its part.
These functions are more or less indicated in the Section 5 power of the governors. First, they are the chief executives of the states responsible for executing state law and programs to promote peace and governance in their states. As chief executives, they are chief security officers ensuring adequate security for live and business continuity in their states. They are also ‘sole organs’ for purpose of interstate relations.

What this means is that the federal government and the president do not have exclusive responsibility for security in the states. The president is responsible for federal security agencies that operate in the states like the Nigerian Police and the Department of State Services (DSS). This responsibility does not oust the jurisdiction of the state legislature to legislate for the security of their state. Therefore, the exercise of the president’s executive power on matter of security does not oust the valid exercise of executive power by the state governors on security in the state. As long as state governors do not interfere in the management of the Nigerian Police, it can through the state assemblies make laws to determine how the Nigerian Police operates in their state. The governors of the states do not need the Inspector General of Police to determine how police power will be exercised in the states.

Improper understanding of the federalism design in the constitution and how it determines the intersections and convergences of presidential and gubernatorial powers has led to wrong idea that the state governors are powerless in managing law enforcement in their states. This ignorance is what has enabled the terror of SARS and the #EndSars protests convulsing the country. It is ironic that, at the wake of the #Endsars protests, the National Economic Council (NEC) mandated state governors to institute judicial inquiry into the activities of the SARS as a response to the demands of the protesters. The NEC lacks the power to mandate governors to take such action. Notwithstanding, the NEC rightly recognized that only a state governor can trigger the provisions of law relating to judicial inquiry in a state.

State legislatures have the power to regulate law enforcement and exercise of police power in their states, even as they cannot legislate on the management of the Nigerian Police. Therefore, state governors ought to have used the instrument of judicial inquiry to determine the fairness or otherwise of policing in their states. The result of the inquiries could lead to prosecution of errant police officers notwithstanding that these officers are federal officers subject to the managerial control of the Inspector General of Police. They would be prosecuted as citizens who violate the laws of the state. The reports of rape, torture, and unlawful killing would have investigated and transparent handled with due process. This would have averted any need for the sort of convulsive protests spreading through the country.

Henceforth, state government should take charge of security in their states. This includes making laws that set standards and procedure for policing and law enforcement. It is actually incoherent to argue that state legislatures can enact criminal laws but cannot make law to determine the nature of law enforcement in their states. The exclusion of legislative jurisdiction of state legislature over ‘Police and other security organizations established by law’ and the federalization of the Nigerian Police do not in any manner diminish the legislative competence of the state legislature over security matters and the power of state governors to enforce the law to protect the lives, liberties and property of residents of the states. Law enforcement is not an exclusive federal responsibility. State governors have constitutional responsibility to manage law enforcement in their states as chief executives of states as federating units. If they rise up to that responsibility, we may not have the SARS terror and these threatening protests across the country.

EDITOR’S NOTE: Dr. Sam Amadi is a law teacher, development philosopher and strategist who writes from Abuja.

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