ARGUABLY, Legal luminary, elder statesman, and Chairman of The Patriots, Professor Ben Nwabueze, SAN, 85, is the oldest senior advocate in the country. Of the 13 SANs crowned in 1978, he is one of the two still alive.
The other is Chief Richard Akinjide, SAN, who Nwabueze claims is younger than him. Both are 85, but while Nwabueze was born in March, Akinjide was born in November. The next in seniority after them, he said, is Professor Dele Kasumu, SAN, who was made senior advocate in 1979. Although he is older in age, Nwabueze said Akinjide is higher than him in the SAN rank because the latter got called to the Nigerian Bar earlier.
On the other hand, he was called to the English Bar earlier than Akinjide. Reason: Upon completion of their law degree in London, Akinjide returned immediately to Nigeria while he elected to remain in London and teach at the London School of Economics and Political Science.
At 85, Nwabueze said he is disturbed by what is happening in the country, especially in his much-loved profession – law, and he had to come out of retirement to intervene. Specifically, he said the unconstitutional manner the Department of State Service, DSS and the Economic and Financial Crimes Commission, EFCC, are waging the war against the monster of graft could create a worse monster – anarchy, total break down of law and order.
In a press statement at his Ajao Estate, Lagos residence, Nwabueze, who was one of the law teachers that established the Law Faculty of the University of Lagos, UNILAG, in 1962, recounted how the crisis in the university quickened the military coup of 1966. He also said that the prevailing crackdown on some justices and judges is not only about going after corrupt judges but also borne out of President Muhammadu Buhari’s alleged angst against the Judiciary.
EMASCULATION OF OUR CONSTITUTIONAL DEMOCRACY THROUGH THE SUBVERSION OF THE SAFEGUARDS ENSHRINED IN THE CONSTITUTION FOR THE PROTECTION OF THE INDIVIDUAL AGAINST THE OPPRESSIVE USE OF THE ORGANISED COERCIVE FORCE AT THE DISPOSAL OF THE STATE
by Ben Nwabueze
CONSTITTIONAL DEMOCRACY AND STATE TERRORISM OR A POLICE STATE CANNOT CO-EXIST TOGETHER
At about 1 am on Saturday 8 October, 2016, men of the Department of State Security raided the homes of seven judges suspected to have been involved in corruption. The raid created a lot of public outcry, because those affected are people whose role in governance, judges, makes their persons almost inviolable. For, however much we may not like to say it, judges, though not granted immunity by law from criminal process, are not ordinary people, like the rest of us. Their role, as sentinels of justice and guardians of our liberty, however much tainted by abuse and corruption it may have become, still entitles them to respect over and above that accorded to the ordinary citizens. Disgrace them, and you risk bringing into disrepute and undermining the credibility of that hallowed institution, the Judiciary, the Third Estate of the Estate, which they represent.
The raid of their homes raises an issue of fundamental importance and concern, which does not appear to be sufficiently appreciated. The issue raised is as to whether constitutional democracy and state terrorism or a police state can co-exist together. For twelve years since 2004 a regime of state terrorism has been foisted on us – in the name of a war against corruption. The lawless activities of the Economic and Financial Crimes Commission (EFCC) created ostensibly to fight corruption were increasingly assuming terroristic proportions. Its armed men terrorise State after State – Bayelsa, Plateau, Jigawa, Benue, rendering the terrorised State a helpless captive. From time to time reports appear in the newspapers of state government offices being deserted and of commissioners and other functionaries fleeing in fear generated by the visit of an invading force of EFCC armed operatives, with some of these functionaries being arrested, taken away to Abuja or Lagos, and held in detention for long periods of time in EFCC insalubrious cells.
The activities of the SSS, combined with those of the EFCC, portray Nigeria in the ugly image of a police state, replete with the pernicious instruments of repression that characterise such a state. The name SSS (changed to DSS because of adverse comments) in itself is entirely out of keeping, an anachronism, in a constitutional democracy, due to its association in the public mind with the barbarities of Hitlerism and of socialist/communist despotism. It created fear and a feeling of insecurity amongst the citizenry.
The tragic fact, about which the public is lamentably uninformed, is that the statutes establishing the EFCC and the SSS are, to a large extent, unconstitutional, because they are a subversion of the safeguards enshrined in the Constitution for the protection of the individual against physical coercion by force of arms (vi et armis). Thus, the issue confronting us is not only as to whether the activities of these two agencies are in conformity with the law establishing them, but also whether, more importantly, the law, establishing them are in conformity with the Constitution, the supreme law of the land. In the past ten or so years, I have cried out against the unconstitutionality of these laws, and the illegal activities committed under them by the EFCC and SSS. To me, the public outcry generated by the raid of the homes of judges is a welcome development, because it has helped to force the evil of the emasculation of our constitutional democracy upon the attention of the Nigerian public.
Regrettably, the unconstitutional laws and the so-called enforcement activities of the EFCC and the SSS have made hardly any noticeable impact upon the rampancy of corruption in the country.
NATURE OF THE ORGANISED INSTRUMENTS OF PHYSICAL COERCION OF THE INDIVIDUAL BY FORCE OF ARMS AND VIOLENCE AT THE DISPOSAL OF THE STATE
The state is an organisation of power and force. In other words, the state is characterised by power and physical force. Physical force is the central attribute of the state, and without which it cannot exist – “states exist or not according as they have the force to impose their commands” (see D’Entreaves, The Notion of the State), although this physical force is not just brutish, unregulated and uncontrolled force but rather “force displayed in a regular and uniform manner” in accordance with law that regulates, conditions, controls and therefore limits it. In more succinct language, the state denotes power and force exercised “in the name of the law”; it connotes a legal order, a body of laws that regulates, conditions, controls and limits the exercise of power and force within a given community.
As an organised force, the force at the disposal of the state is an awesomely mighty force, a leviathan, a huge monster, in the apt description of it made familiar to us by Thomas Hobbes in his book, Leviathan (1651), edited by Michael Oakshott (1960) – a force so mighty and awesome the individual cannot resist it, and which he will only defy at his peril. The force is all the more irresistible because it is in the exclusive monopoly of the state. Thus, by section 227 of the Constitution, as reinforced by provisions in the Criminal Code or Penal Code, “no association shall retain, organise, train or equip any person or group of persons for the purpose of enabling them to be employed for the use or display of physical force or coercion.”
In physical terms, the state’s organised force consists, in the main, of
A Nigeria Police force, comprising 371,800 officers and men, with arms and ammunition at their disposal;
An armed forces of the Federation, made up of an Army, a Navy and an Air Force, comprising a total of 102,000 – 6,000 officers and 96,000 men.
For purposes of civil government, the Nigeria Police Force is the primary coercive force at the disposal of the Nigerian state, supported by the armed forces to aid in the “suppression of insurrection and restore order when called upon to do so by the President.”
The nature of the organised coercive force at the disposal of the state is defined, albeit only obliquely, by the reference in section 227 of the Constitution to “physical force or coercion”, or in the similar words used in the New Webster’s Dictionary of the English Language “physical coercion or violence.” That dictionary defines the term enforce as “to force compliance with, as of laws; to compel or impose upon by force.” The maintenance and enforcement of law and order by the state involves, therefore, the use, for compelling compliance with the laws and generally for maintaining public order, of the state’s organised instruments of physical coercion and violence. It is the function of government that exposes the individual and his liberty to the gravest danger of being pounced upon by the organized instruments of physical force and violence at the disposal of the state.
Thus, the central problem confronting the entire concept of limited government, i.e. government limited in its powers by a constitution as supreme law, is how to protect the individual against the abuse of this organised coercive force. It is perhaps the greatest challenge facing us in devising a constitution for the country, comprising, as it does, a large number of ethnic groups, big and small, living together under a common government susceptible to control by the majority ethnic groups.
The protection of the individual, especially the individual belonging to the minority ethnic groups, against the oppressive use of the state’s organized force of physical coercion became a burning issue during the constitutional conferences preceding independence, with the minority ethnic groups insisting on protection by safeguards clearly spelt out and enshrined in the Constitution. The principal concern was for constitutional safeguards against the oppressive use of the police force as the primary instrument of physical coercion and violence.
Constitutional safeguards for the protection of the individual against the oppressive use of the state’s organised force of coercion and violence are not anything peculiar to Nigeria because of the ethnic composition of its society. It may indeed be said that such protection is as fundamental to constitutional democracy everywhere in the world as his right to vote in an election for the choice of persons to govern the affairs of the community, which is the thing primarily focused on by the generality of Nigerians as what democracy is all about, that being what they readily perceive and appreciate. But democracy is incomplete and deficient unless freedom to choose the rulers at an election is matched with freedom from the arbitrary and oppressive use of the state’s organised instruments of physical coercion by force of arms.
THE SAFEGUARDS ENSHRINED IN OUR CONSTITUTION FOR THE PRETECTION OF THE INDIVIDUAL AGAINST THE OPPRESSIVE USE OF THE STATE’S ORGANISED FORCE OF PHYSICAL COERCION AND VIOLENCE
Implementing the agreements reached among our political leaders during the constitutional conferences preceding independence in 1960, the Nigerian Constitution, truly faithful to the requirements of limited government which it is its underlying object to establish for the country, and conscious of the awesomeness of the power of physical coercion of the individual by force of arm involved in law-enforcement and the maintenance of public order, with the proneness of the power to oppressive use, does enshrine the following safeguards for the protection of the individuals belonging to both minority and majority ethnic groups.
1. A guarantee of fundamental rights in chapter iv of the Constitution, but the guarantee is designed to provide protection against infringement of rights generally, not protection against the somewhat special problem of the oppressive use of the state’s organized force of physical coercion (vi et armis).
2. The insulation of the administration of justice from the control of the government of the day by vesting it in an arm of the government, the judiciary, separate from the executive/legislative arms, and whose independence is secured by insulating the appointment and removal of judges from undue political influence.
3. The insulation of the process of criminal prosecutions by vesting its control in a reputable professional lawyer of distinction and unquestionable integrity.
4. The insulation of the operational use and control of the Nigeria Police Force from political influence by the government of the day.
5. Restriction on the power of the government of the day in respect of the operational use and control of the armed forces of the Federation.
The insulation of the operational use and control of the Nigeria Police Force as the primary organized force for the physical coercion of the individual, from undue influence and manipulation by the government of the day
Herein lies the crux of the problem facing us in this matter. The safeguards enshrined in the Constitution for this purpose are designed to implement the agreements reached among our political leaders during the constitutional conferences preceding independence aimed especially to allay the fears of minorities. The safeguards, as enshrined in the Constitution, must now be set out:
i. To begin with, the Constitution does not leave it to the state to establish or create by ordinary law a police force; rather it establishes it directly by itself in the form of the Nigeria Police Force (NPF) (section 214); it defines, either expressly or by implication, its powers and functions.
It prohibits the establishment of any other police force for the country or any part thereof (section 214(1)) without prejudice, however, to the formation of branches of the NPF as may be authorised by law “for the protection of harbours, waterways, railways and airfields”: section 214(2)(c). The prohibition needs to be emphasized because of its bearing with respect to the establishment by ordinary statute of other police or police-like organisations, such as the Economic and Financial Crimes Commission (EFCC) and the State Security Services Agency (SSS).
(ii) It establishes the Nigeria Police Council, with the President, State Governors, Chairman of the Police Service Commission and the Inspector-General of Police as Chairman and members, and charges it with responsibility for the organisation, administration and general supervision of the Force, excepting the control of its operational use; a Police Service Commission, consisting of a chairman and such number of other members not more than nine or less than seven appointed by the President and charged with responsibility for the appointment and disciplinary control, including dismissal, of members of the Force, other than the Inspector-General – section 153 and the Third Schedule.
(iii) The third safeguard is the most significant of all. The Constitution vests the command (i.e. the use and operational control) of the Police Force in a professional, non-partisan policeman (section 215(2)) by the designation of Inspector-General of Police (IGP) whose office it directly establishes and vests his appointment in the President “on the advice of the Nigeria Police Council” (section 215(1)). The implication of vesting the command of the Police Force in a professional, non-partisan policeman, and not in the President to whom the power should normally belong as part of the executive power vested in him by section 5(1), is that he (the President) is not part of the command structure of the police; he is not its commander-in-chief as he is of the armed forces, and cannot therefore lawfully control or direct its operational use except to the extent indicated in the next following paragraph. Section 130(2) of the Constitution designates the President, “the Commander-in-Chief of the Armed Forces of the Federation” – see also section 218(i); it does not designate him Commander-in-Chief of the Nigeria Police Force and in no provision of the Constitution is he so designated, either expressly or by implication.
The IGP’s command is, however, qualified by the power reposed in the President and the Governor of a State to give “lawful” direction with respect to the maintenance and securing of public safety and public order – section 215(3) and (4). The word “public” is underlined to emphasise the limited extent of the President’s or State Governor’s power to give direction to the IGP. The provisions of subsections (3 and 4) of section 215 are significant. They qualify the IGP’s command by authorizing the President (or State Governor) to give direction with respect to the maintenance and securing of public safety and public order. The provision of subsection 3 needs to be set out in its exact terms because of its important bearing on the issue of control of the operational use of the police force; (subsection (4) is in similar terms): The provision is reproduced later at page below.
The extent of the power conferred on the President (or State Governor) by the two subsections is delimited by the fact that the maintenance and securing of public safety and public order, wide as it is because it includes the security of the state and its government, does not embrace all police functions, like the enforcement of laws relating to common crimes committed by single individuals which have no direct or proximate bearing on public safety and public order; the word “public” is in bold letters to emphasise that it refers to the state, its government and the people as a collectivity or a considerable part of them. That is what state security is about. A direction with respect to the use of the police force for a purpose other than the maintenance and securing of public safety and public order, like its use to coerce the individual by force in the pursuit of the lawful activities of his life, as in a police state, is outside the scope of the power, and is not a “lawful” direction within the meaning of that word in the subsection.
Subversion of the constitutional safeguards
The present situation where the President directs the use of the police force in all manner of cases, as if he is its commander-in-chief, is a perversion of this safeguard. It is, indeed, common knowledge that the command of the Police Force vested in the IGP by section 215(2) is routinely encroached upon, or rather usurped, by successive civilian Presidents since 1999. The IGP is hamstrung to resist the encroachment because, unless and until the courts declare it null and void, section 9(4) & (5) of the Police Act cap. P19, Laws of the Federation, 2004 edn, gives legal backing to the encroachment. The two subsections provide:
“(4) The President shall be charged with operational control of the Force;
(5) The Inspector-General shall be charged with the command of the
Force subject to the directive of the President”.
The above provisions are patently and manifestly inconsistent with the provision of section 215(2) & (3) of the Constitution noted above. The two subsections of the Constitution do not make the IGP’s command “subject to the directive of the President,” as regards the operational control of the Police Force. As earlier noted, the Constitution does not provide in any of its sections that the President shall be the commander-in-chief of the NPF. The President’s power to give directions to the IGP is conferred by section 215(3) and is explicitly limited to the giving of “lawful directions with respect to the maintenance and securing of public safety and public order.” Being inconsistent with the Constitution, the provisions of section 9(4) & (5) of the Police Act are unconstitutional, null and void.
The provisions of section 5 of the Police Act (establishing the offices of IGP and Commissioner of Police for each State), section 9(4) & (5) (establishing the Nigeria Police Council and prescribing its functions) and section 10 (empowering the President and the Governor of a State to give directions respectively to the IGP and the State Commissioner of Police with respect to the maintaining and securing of public safety and public order – significantly the word “lawful” is omitted from the provision – are also unconstitutional, null and void for duplicating the provisions of section 215(1), (3) & (4) and paragraphs 27 & 28 of the Third Schedule to the Constitution. The legal consequences of such duplication are laid down definitively by the Supreme Court in its decision in Att-Gen of Abia State v. Att-Gen of the Federation (2002) 6 NWLR (Pt 763) 264 at page 369, per Kutigi JSC delivering the judgment of the Court; re-affirmed in INEC & Anor v. Balarabe Musa & Ors (2003) 3 NWLR (Pt 806 72 at page 158, per Ayoola JSC; Att-Gen of Abia State v. Att-Gen of the Federation (2005); noted more fully below.
The above-mentioned provisions of the Police Act are a product of the era of military absolutism. It hardly speaks well of the elected civilian National Assembly that took over legislative power from the military since 1999 that the provisions have been allowed to remain in our statute books, to undermine, if not to subvert, the system of limited government established for the country by the Constitution.
The powers of the NPF with respect to the enforcement of the law derive partly from the provisions of section 215(3) & (4) noted above, partly by implication from other provisions of the Constitution, particularly section 214(1) establishing it as a coercive force, a police force, and partly from statutory provisions enacted pursuant to section 214(2)(b) and item 45 of the Exclusive Legislative List.
It needs to be re-emphasised that these safeguards are designed as protection for democracy and liberty; they are enshrined in the Constitution because they are deemed necessary for the maintenance of democracy and the liberty of the individual. By enshrining them, the Constitution manifests an unmistakeable and jealous concern to guard against as much as possible the use by the President of the organized instrument of physical coercion and violence represented by the Nigeria Police Force as an instrument of personal power for the coercion, victimization and oppression of the individual for political or other reasons. The aim is to check the emergence of personal rule – of a dictatorship.
RESTRICTION ON THE POWER OF THE GOVERNMENT OF THE DAY IN RESPECT OF THE OPERATIONAL USE AND CONTROL OF THE ARMED FORCES OF THE FEDERATION, AND THE PERVERSION OF THE RESTRICTION
Like in the case of the Nigeria Police Force (NPF), the Constitution does not leave it to the state to establish by its own statute “an armed forces of the Federation”; rather it does so directly itself in section 217(1) which establishes it consisting of “an Army, a Navy, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.” It defines its functions as:
“(a) defending Nigeria from external aggression;
(b) maintaining its territorial integrity and securing its borders from violation on land, sea or air;
(c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly; and
(d) performing such other functions as may be prescribed by an Act of the National Assembly.” : section 217(2)
Under the Constitution, therefore, the primary functions of the armed forces are the defence of Nigeria against external aggression, and the safeguarding of its territorial integrity and the security of its borders from violation on land, sea or air, but they can be called in to “aid the civil authorities” only in the event of the occurrence of an “insurrection” making it necessary to call in armed soldiers to help “restore order”.
The occurrence of an insurrection is thus the decisive condition warranting the invocation of section 217(2)(c). The New Webster’s Dictionary of the English Language defines “insurrection” as “an open revolt against established authority; an incipient rebellion.” It would be doing violence to language to describe the street processions protesting the removal of petroleum subsidy on 9 January, 2013 as being, by any stretch of imagination, “an incipient rebellion” or “open revolt against established authority.” What happened in the streets on the 9th of January, 2013 and the days following was not an incipient rebellion or open revolt against established authority. The protesters were certainly not rebels; they were only exercising the democratic right and freedom guaranteed to them by the Constitution. The use of soldiers against the protesters was therefore a violation of section 217(2)(c) of the Constitution.
By protecting the people against unwarranted coercion and oppressive use of the organised armed force in the exclusive monopoly of the State in the name of the maintenance and enforcement of law and order except in the event of an insurrection, section 217(2)(c) is one of the great pillars and guarantees of democratic freedom under the Constitution.
The word “restore” or “restoring” in section 217(2)(c) has great significance as implying or indicating that order has already broken down by reason of the occurrence of insurrection, as defined above. Had the Constitution omitted or not included the definitive limitation in section 217(2)(c), such omission or non-inclusion would have rendered largely nugatory the democratic rights and freedoms guaranteed to the people of Nigeria by sections 33 – 46 of the Constitution.
It is true that the armed forces may also be used to perform “such other functions as may be prescribed by an Act of the National Assembly” under section 217(2)(d), but such other functions must not be inconsistent with those set out specifically in section 217(2)(a), (b) and (c) of the Constitution. Section 217(2)(c) limits the extent the armed forces can be used for the maintenance and securing of public safety and public order in Nigeria.
Any law made by the National Assembly under section 217(2)(d) which gives the armed forces any functions in relation to the maintenance and securing of public safety and public order is unconstitutional, null and void insofar as such functions go beyond the suppression of insurrection and aiding the civil authorities in its suppression and restoration of order when order has actually broken down or been seriously disturbed by the occurrence of insurrection. Otherwise the whole scheme of protecting the individual and his rights and freedoms from or against the use or abuse of the state’s organised force would, as earlier stated, have been rendered largely nugatory.
The provision is section 8(3) of the Armed Forces Act, cap. A20, Laws of the Federation, 2004 edition, that the “operational use of the Armed Forces includes the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order” is therefore unconstitutional, null and void as it can derive no validity from section 217(2)(d) viewed in the light of section 217(2)(c) i.e. insofar as section 8(3) of the Armed Forces Act actually authorizes the use of the armed forces for any public safety and public order purposes other than the suppression of insurrection and restoration of order.
It is of course for the courts, in the exercise of their interpretative jurisdiction, to say whether or not section 217(2)(d) is subject to the definitive limitation in section 217(2)(c). But a provision so potentially subversive of our democratic freedoms as that in section 217(2)(d) is, cannot be interpreted otherwise than by making it subject to section 217(2)(c)..
Likewise, the provision in section 218(1) that “the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the Armed Forces” must be read as subject to, and as limited by, the provision of section 217(2)(c) and other relevant provisions of the Constitution. The Constitution cannot have intended or contemplated that the President’s power to “determine the operational use of the armed forces” shall be at-large, i.e. without limitations. It cannot have been the intention that the power should enable him to use the armed forces against the individual, to use them to trample on the individual’s rights and freedoms, as he pleases, as if the government was a regime of absolute, unlimited powers, instead of one limited by an elaborate scheme of rights and freedoms guaranteed to the individual in chapter IV of our Constitution and other safeguards enshrined in the Constitution.
The seminal decision of the U.S. Supreme Court in Youngstown Sheet and Tube Co v. Sawyer, 343 U.S. 579 is decisive upon the issue. A state of emergency was declared in the country by the President following a war in Korea in which the United States was involved. In response to a strike call in the steel industry during the emergency, the President, acting solely on his independent authority under the U.S. Constitution to preserve the security and safety of the nation, ordered the steel factories to be seized and operated by government agents in order to avert a national catastrophe which, owing to the strike, might ensue from a stoppage of steel production during the war, steel being an essential material for the manufacture of ammunition. The President had tried, among other sources, to derive legal authority for his action from the provision of the Constitution designating him as the commander-in-chief of the armed forces.
The argument based on the President’s power as commander-in-chief of the armed forces, and all the other grounds relied upon by the President, were rejected by the Court, and the seizure was declared unconstitutional and void. As the Court held in memorable words:
“We cannot with faithfulness to our constitutional system hold that the commander-in-chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labour dispute from stopping production……The Constitution did not contemplate that the title, Commander-in-Chief of the Army and Navy, will constitute him also commander-in-chief of the country, its industries and its inhabitants.” ibid at p. 587 and pp. 642 – 4 (emphasis supplied).
As Commander-in-Chief of the Armed Forces, the President of Nigeria cannot even deploy any member of the armed forces “on combat duty outside Nigeria” “except with the prior approval of the Senate”: Section 5(4(b).
The deployment of armed soldiers in the streets of the major cities of Nigeria or at check points on the high roads as well as their deployment at polling centres during elections, which has indeed become a routine feature of life in the country, is thus an unconstitutional invasion of our democratic freedoms, and is no less condemnable now than under the “constitutional dictatorship” of former President Olusegun Obasanjo. It is, in one case as in the other, careless of the lessons of history, and recent history for that matter. It ignores or manifests ignorance of recent events in Romania during the on-slaught of the 1989 – 90 Democratic Revolution that swept across the world where the Romanian President, Ceausescu, ordered armed soldiers to shoot protesters demanding multi-party democracy. When the soldiers could no longer stand shedding the blood of hundreds of fellow citizens, they refused to continue the shooting. Whereupon the protesting mob, breaking loose, surged into the presidential palace, seized Ceausescu, tied him to a post, and had him shot, leaving his body to rot away as a warning to all who abuse or misuse state power, of the wrath of the Sovereign People in a democracy. The account of this event, as given by Timothy Garton Ash in his book, We the People (1990), has the makings of an epic story.
Professor Sir Karl Popper, in his great book, The Open Society and Its Enemies (1966), echoes this warning eloquently thus:
“The working of democracy rests largely upon the understanding that government which attempts to misuse its powers and to establish itself as a tyranny (or which tolerates the establishment of tyranny by anybody else) outlaws itself, and the citizens have not only the right but also a duty to consider the action of such a government as a crime, and its members as a dangerous gang of criminals.”
In this connection, the installation of a new Administration following the presidential election in March 2015 has brought a welcome change in one respect. Military checkpoints on the roads throughout the country have been or are being dismantled as ordered by our new President, Muhammadu Buhari, after a meeting with the service chiefs and the director of military intelligence. This must be applauded as conforming with the requirements of constitutional democracy. It is no justification for engaging the military outside the permissible limits of the functions assigned to them under the system of limited government established for the country by the Constitution, that the Police Force, to whom the maintenance of order, security and safety belongs under the Constitution, lacks the operational capacity, in terms of personnel, organisational structure, technological equipment and motivation, for effective discharge of its function, especially given the peculiar security challenges facing the country. Its lack of operational capacity by the NPF and its inadequacy in many other respects, including its notorious corruption, do not justify the usurpation of its constitutional functions by agencies created by the state by its own statutes, notably the EFCC and the State Security Service Agency.
SUBVERSION OF THE CONSTITUTIONAL SAFEGUARDS BY THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) ACT 2004, AND BY THE ILLEGAL ACTIVITIES OF THE COMMISSION IN REAL LIFE
A first point to make is that the Economic and Financial Crimes Commission Act 2004 (replacing an earlier Act of 2002), is, in many respects unconstitutional and void because it over-steps the limits of the powers of the Federal Government under the division of powers in the Constitution between it and the State Governments. Its relevant provisions show that the Act is premised on a view of Nigeria as a unitary state, not a federal state, with the limitations on power which federalism imposes. President Olusegun Obasanjo, the originator of the Act, is said to have borrowed it from some unitary state, and foisted it on Nigeria without the adaptations which our federal system makes necessary or dictates. It will over-burden this write-up to examine the many respects in which the EFCC Act trenches on the domain and powers of the State Governments.
Apart from the unconstitutionality arising from the subversion of the federal system, the powers given by the Act to the Commission for the enforcement of its provisions are frightfully wide-ranging and sweeping, and are contained mainly in sections 6, 8(5), 21, 24, 25 and 26. Section 6 has 16 numbered paragraphs only five of which are set out here as the most crucial ones; they provide that “the Commission shall be responsible for –
(a) the enforcement and the due administration of the provisions of this Act;
(b) the investigation of all financial crimes….;
c.the enforcement of all economic and financial crimes laws and the co-ordination of enforcement functions conferred on any other person or authority….
(h) the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved…..
(m) taking charge of, supervising, controlling, co-ordinating all responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes” (emphasis supplied; the word enforcement is emphasized to underscore its special significance.)
(The words “in consultation with the Attorney-General” which appeared at the end of paragraph (m) above in the 2002 version of the Act were removed in the 2004 version.)
The central question arising from the powers contained in section 6 of the EFCC Act (quoted above) is as to whether the power of enforcement of economic and financial crimes laws given to the EFCC by the Act is consistent or inconsistent with the safeguards provided by the Constitution limiting the use of the state’s frightful and irresistible coercive force for the purpose of law-enforcement; in other words, what are the implications of EFCC’s frightfully wide-ranging powers for the safeguards provided by the
Constitution for the protection of liberty and democracy?
First, the words “shall be responsible” in section 6 of the EFCC Act imply and seem in the context clearly intended to imply that the powers thereby conferred on the Commission exclude the same or similar power in any other person or authority. The intended effect is to make the Commission the sole authority for the enforcement of all economic and financial crimes, as defined in section 46, i.e. to the exclusion of the NPF and the Attorney-General as the instrumentalities established by the Constitution for the enforcement of the laws with the limitations it imposes on them.
To the extent that the powers of the EFCC for the enforcement of economic and financial crimes laws do not exclude those of other authorities or persons, the latter are subjected to its supervision or control, and can only have and exercise subordinate power. The subjection or subordination arises from the words “shall be responsible” as well as from the phrase “the co-ordination of enforcement functions conferred on any other person or authority” in section 6(c) (emphasis supplied), and, more explicitly and unequivocally, the phrase “taking charge of, supervising, controlling, co-ordinating all responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes” in section 6(m) (emphasis supplied). The power of co-ordination, supervision and control vested in the EFCC is not shackled or restrained by the safeguards enshrined in the Constitution for the protection of the individual against physical coercion by force of arms.
The second implication of the powers of the EFCC for constitutional democracy in Nigeria is far graver. It lies in the fact that the EFCC is not only empowered, to the exclusion of the NPF and the Attorney-General, to enforce economic and financial crimes laws, but also the words “shall be responsible” in section 6 of its constituent Act have the effect of putting at its disposal for the purpose, the use of the entire organized coercive force of the Nigerian state represented by the NPF, with the Commission’s Chairman supplanting for that purpose the IGP as its commander. As regards the use of the Nigeria Police Force for the investigation and prosecution of economic and financial crimes, the IGP is now placed under the supervision and control of the Commission’s Chairman. He cannot stop the latter from using the police force for the investigation, prosecution and enforcement generally of economic and financial crimes, however much he may think the use of the force in any particular case to be illegal or otherwise unjustified.
For this purpose, the Chairman of the EFCC means in effect the President, by whom the Chairman is appointed and may be removed, which enables the President to direct and control him as he likes. As far as the enforcement of economic and financial crimes laws is concerned, the President has been enabled by the EFCC Act to re-appropriate the command of the police force which is withheld from him by the Constitution, except as regards the giving of direction for the maintenance of public safety and public order.
Third, not only is the Nigerian state’s entire organised instrument of physical coercion and violence put at the disposal of the Commission for the enforcement of economic and financial crimes, but it is also provided as follows in section 8(5) of the EFCC Act:
“For the purpose of carrying out or enforcing the provisions of this Act, all officers of the Commission involved in the enforcement of the provisions of this Act shall have the same powers, authorities and privileges (including power to bear arms) as are given by law to members of the Nigeria Police” – emphasis supplied.
By this provision, which was not in the original 2002 Act but was only added in 2004, the officers of the Commission concerned are constituted, to all intents and purposes, into a separate police force in clear violation and subversion of the prohibition in section 214(1) of the Constitution that “no other police force shall be established for the Federation or any part thereof.”
Fourth, the provisions in section 6 of the Act quoted above deprive the Attorney-General of the control over criminal prosecutions vested in him by section 174 of the Constitution as far as economic and financial crimes are concerned (section 211 in the case of the Attorney-General of a State). In respect of economic and financial crimes, he cannot now “institute or undertake criminal proceedings” or “take over and continue any such criminal proceedings” instituted by the Commission or any other person or authority any more than he can discontinue them. He is now placed under the supervision and control of the Commission’s Chairman and has ceased to be the controller as regards prosecutions of economic and financial crimes. As the authority in control of all prosecutions of economic and financial crimes, the Commission (or its Chairman), in the exercise of that power, is not bound, as the Attorney-General is bound, to have “regard to the public interest, the interest of justice and the need to prevent abuse of legal process”, as provided in section 174(3) of the Constitution (section 211(3) in the case of the Attorney-General of a State).
These provisions making the EFCC “responsible for the enforcement of all economic and financial crimes laws” constitute it a unique law – enforcement agency altogether different from other law – enforcement agencies, like the Customs, Immigration and Prison Services established by their respective statutes: see the Immigration and Prison Services Board Act, cap 12, Laws of the Fedn 2004; Nigerian Customs Service Board Act cap. 100; Customs and Excise Management Act, cap C45.
Fifth, as the person who appoints and may remove the Chairman and other members of the Commission (section 2(3) & 3(2) of the Act), which gives him absolute power to control and direct them, the President is now freed from, he is left unfettered by, the limitations imposed by the Constitution on the use of the state’s organised instrument of physical coercion and violence for the purposes of the enforcement of economic and financial crimes. He is now enabled to direct the Commission as to who or who not to investigate, arrest, detain or prosecute for alleged economic and financial crimes. The constitutional safeguards enshrined in the Constitution for the protection of the individual against physical coercion by force of arms have been thrown out of the window and in its place is now enthroned the personal power of one man with unfettered power to unleash against anyone that frightful leviathan – the Nigerian state’s organised instrument of physical coercion and violence. He has been abusing the limitations on his power over the NPF anyway, but now there is no need to resort to perversion as far as the use of the police for the enforcement of economic and financial crimes laws is concerned. The law itself has given him a free hand.
As earlier stated, the guarantee of fundamental rights and freedoms in chapter IV, section 33 – 46, is among its provisions the Constitution enjoins in section 1 that the country “shall not be governed….except in accordance” therewith, and to which the vesting of executive powers in the President (or Governor) by section 5 is made subject. The powers of the EFCC under its constituent Act are a subversion of the rights so guaranteed not only because they have enabled the Commission, either by the operation of the express provisions of the Act or as those provisions are applied in practice, to subject the individual illegally to arbitrary arrest, prosecution, detention in insalubrious cells for indefinite periods of time without trial by a court of law, coercive interrogations in the course of which illegal methods are used to extract incriminating evidence, and degrading or humiliating treatment, like hand-cuffing, but also to forcible seizure, confiscation or forfeiture and sale of his properties and assets; see sections 24, 25, 26 and Part V of the Act – all of which involve the use of the state’s organized instrument of physical coercion and violence.
Without going into details of the infringements by the EFCC of the freedom of the individual from arbitrary arrest, detention, prosecution and from degrading treatment, it is necessary to condemn here, as purely vengeful and spiteful, the hand-cuffing of a former Inspector-General of Police and of an illegally removed State Governor for the non-violent offence of money laundering and corruption. The hand-cuffing could not have been for any other reason than to disgrace or humiliate them in order to satisfy the vengefulness and spite of the power-that-be.
The Nigerian public sees every corrupt official as a public enemy undeserving of the protection of the Constitution and the laws. But a people incapable of rising above this kind of mob sentiment is not ripe for constitutional democracy. We must not let our understandable abhorrence of corruption overbear our faith in constitutional democracy and the Rule of Law as the most acceptable system for the government of human society. It is more regrettable that lawyers should subscribe to this mob sentiment.
X X X
The discussion above shows that a good part of EFCC’s powers under the Act is unconstitutional, null and void. It is these illegal powers that are being used in an illegal manner by the Commission – case of double illegality, or illegality upon illegality.
SUBVERSION BY THE NATIONAL SECURITY AGENCIES ACT, OF THE SAFEGUARDS ENSHRINED IN THE CONSTITUTION FOR THE PROTECTION OF THE INDIVIDUAL AGAINST PHYSICAL COERCION USING THE STATE’S ORGANISED FORCE
The State Security Service (SSS), now renamed the Department of State Security (DSS), is established by the National Security Agencies Act. The historical antecedents of the DSS brand it, from its birth, as a usurpation of the functions of the Nigeria Police Force (NPF). It was created by Decree of Gen. Obasanjo’s Federal Military Government (FMG). Following accusations of inadequate police security at the time of the assassination of General Murtala Muhammed during the February 1976 abortive coup, the Special Branch of the Police Force was hived off later that year by the General Obasanjo military government, and formed by decree into a separate entity, the repressive and dreaded National Security Organisation (NSO), which was later transformed into the State Security Services (SSS) now renamed DSS. As an agency established by ordinary statute, the DSS is like the EFCC, but it is unlike the NPF which is established directly by the Constitution – subject to what is said later below.
Apart from its historical origin as a hive-off of the Special Branch of the Nigeria Police Force, the functions of the DSS are embraced in those of the NPF under the Constitution, so that they remain, as they have been from its birth, at best, a duplication and, at worst, a usurpation, although both duplication and usurpation carry the same consequences in law. By the provision of section 2(3) of its constituent Act, the DSS “shall be charged with responsibility for –
a.The prevention and detection within Nigeria of any crime against the internal security of Nigeria;
b. The protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and
c.Such other responsibilities affecting internal security within Nigeria as the National Assembly or the President as the case may be, may deem necessary.
The words “shall be charged with responsibility” imply and are in the context clearly intended to imply that the power thereby conferred on the SSS is to the exclusion of any other authority or person, including in particular the NPF and the Inspector-General of Police (IGP). Their intended effect is that the SSS shall replace the NPF as the agency responsible for those functions.
There can be no doubt that those functions are embraced in the power vested, expressly or by implication, in the NPF by the Constitution, which establishes it: section 214. The “internal security of Nigeria” for which the SSS is charged with responsibility is certainly embraced in the power vested in the NPF and its commander, the IGP, with respect to “the maintenance and securing of public safety and public order” under section 215(2) & (3) of the Constitution. The term “public safety” is wider than, and embraces, “internal security”, however the latter term is interpreted.
That the NPF and its commander, the IGP, are given power by the Constitution with respect to the maintenance and securing of public safety is beyond dispute. Section 215(3) of the Constitution provides:
“The President or such Minister of the Government of the Federation as he may authorise in that behalf may give to the Inspector General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary and the Inspector-General of Police shall comply with those directions or cause them to be complied with” (emphasis supplied.
The provision thus leaves it in no doubt that the maintenance of public safety, which embraces internal security, is part of the functions of the NPF under the Constitution, and are within the command powers vested in the IGP by section 215(2) of the Constitution. It is a usurpation to take the function away from the NPF and transfer it to the DSS, as it is to divest the IGP of his command power with respect to the maintenance and securing of public safety, and vest it in the Director-General of the DSS.
Looked at in another way, the provision of section 2(3) of DSS Act is, at best, a duplication of sections 214 and 215 of the Constitution; the consequences of such duplication have been definitively laid down by the Supreme Court in Att-Gen of Abia v. Att-Gen of the Federation (2002) 6 NWLR (Pt 763) 264 at p. 369, where the Court, Kutigi JSC (later CJN) delivering the judgment of the Court, held:
“where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision then the provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative. The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provisions will be treated as unconstitutional and therefore null and void.” (emphasis supplied).
The decision is re-affirmed by the Court in INEC & Anor. v. Balarabe Musa & Ors  3 NWLR (Pt 806) 72 at page 158, per Ayoola JSC for the Court.
In a later case decided in 2005, Att-Gen of Abia State & Ors v. Att-Gen of the Federation, the Supreme Court held unconstitutional, null and void, a law made by the National Assembly which enjoined the States to establish a State Joint Local Government Account Allocation Committee, on the ground that the provision is a duplication of a provision to the same effect in section 162(6) of the Constitution.
The decision of the Supreme Court in these three cases has a good rationale to support it. An inconsistency arises from the different sources of authority for the two provisions, one source of authority, namely the Constitution, being superior to the other i.e. an ordinary law made by the legislature; for this reason, a statutory provision, deriving authority from an inferior source, simply cannot exist and operate together with the same or similar provision in the Constitution which it duplicates. It makes hardly any sense that something established or existing by the Constitution should be established yet again by an ordinary law which is inferior to the Constitution; the basis of its existence, its character and authority is certainly not changed from the Constitution to the ordinary law, nor will the repeal of the ordinary law terminate its existence and powers under the Constitution.
This rationale finds further support in the decision which, based on the superior authority of a federal law vis-à-vis a state law on a concurrent matter, holds that where the Federal Government has legislated completely and exhaustively on such matter, so as to cover the entire field of the subject-matter, then, a state law on the same matter which duplicates the federal law is void for inconsistency, since the state law, deriving its existence from an inferior authority, cannot exist together with the federal law: Att-Gen of Ogun State v. Att-Gen of the Federation (1982) NSCC 1, particularly pages 11 (per Fatayi-Williams CJN delivering the judgment of the Court) and 28 (per Idigbe JSC). But see the judgment of Eso JSC who, dissenting on this point, holds that the identical state law is only in “abeyance” or in suspension, but not void: at page 35.
To compound the unconstitutionality of the statute establishing it and of its powers under that statute, the SSS, now the DSS, is now extending its activities in the repression and coercion of individuals, in the name of the preservation of internal security, to matters that do not really affect or relate to the preservation of internal security, which is its defined area of responsibility under its constituent statute. It now arrogates to itself power to stop relations and close associates of the Niger Delta militants from contesting the April 2007 general elections. The Director of the SSS in Delta State, Mr Adebayo Babalola, was reported in the Vanguard newspaper of 31 January, 2007 to have said:
“We are not going to allow militants and their sponsors including their relations and close friends to participate in the electoral process by running for offices. How can we allow it? They (militants) will capture whitemen in the creeks and their brothers are here running for elections. We will make sure you (political parties) don’t recommend those that are dangerous in society….Even if they enter into the race, we are going to disturb them.”
The Chairman and Secretary of the Nigeria Labour Congress (NLC), Oyo State Chapter, were, according to reports in the newspapers of 16 January, 2006, arrested by men of the SSS for directing workers in the State to stay away from their duty posts until the illegally removed Governor of the State, Senator Ladoja, was restored to office, and for calling on the National President of the NLC and his counterpart in the Trade Union Congress to “rise immediately in defence of democracy and the rule of law in the State”. Cases of people being arrested by the SSS or being required to report at its headquarters in Abuja for interrogation, as in the case of the invitation to late Chief Ojukwu, are frequent occurrences.
Its latest incursion was the raid of the homes of some judges on suspicion of involvement in corruption, upon the strained notion that corruption has reached such proportions as affect our internal security as a country. But whether corruption can rightly be regarded as a matter affecting our internal security as a country, such as to justify the subversion of the safeguards enshrined in the Constitution for the protection of the individual against the oppressive use of the instruments of coercion by force of arms at the disposal of the state, is not the real issue raised by the raid of the homes of judges by men of the DSS. The real issue is a constitutional one, namely, that the State Security Agencies Act is, for reasons stated above, unconstitutional, and the powers it confers on the DSS are, by reason thereof, unlawful.
THE EXCRESCENCE OF THE ENTRENCHMENT IN THE CONSTITUTION OF THE LAW ESTABLISHING THE SSS
Section 315(5) & (6) of the Constitution provide:
(5) Nothing in this Constitution shall invalidate the following
enactments, that is to say –
a.The National Youth Service Corps Decree 1993;
b.The Public Complaints Commission Act;
c.The National Security Agencies Act;
d.The Land Use Act,and the provisions of these enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9(2) of this Constitution.
(6) Without prejudice to subsection (5) of this section, the enactments mentioned in the said subsection shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution. (emphasis supplied)
It should be stated that the above-quoted provisions of section 315(5) & (6) were not in the draft of the Constitution prepared by the Constitution Drafting Committee (CDC) in 1976 or in the version of it approved by the Constituent Assembly (1977). They were put there subsequently by General Obasanjo’s Supreme Military Council. Subsection (6) was not even in the Constitution as originally enacted by the Federal Military Government (FMG); it came into the Constitution by way of a later amendment by Decree of the FMG.
The provisions of the two subsections, as they relate to the SSS established by the National Security Agencies Decree (now Act), are clearly an excrescence that disfigures the face of our constitutional democracy. They give rise to two questions:
i. Whether the effect of those provisions is to incorporate the listed enactments as integral part of the Constitution or merely to entrench them therein
The constitutional direction in section 315(5) that the enactment “shall continue to apply and have effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution” (my italics) suggests that the Act (i.e. the National Security Agencies Act) is incorporated in the Constitution as an integral part thereof. This view of the matter is strengthened by the word “other,” which has meaning only if the provisions of the Act are regarded as forming part of the Constitution. The High Court at Maiduguri (Borno State) and Ibadan (Oyo State) presided over by their respective Chief Judges have indeed asserted, almost as if the point admits of no argument, that the Land Use Act (one of the four Acts named in section 315(5)) is part of the Constitution.1
Against the view that the Act is an integral part of the Constitution, the High Courts at Enugu (Anambra State), Ikeja and Lagos (Lagos State) have held it to be an ordinary law, or a “federal enactment” in terms of section 315(6).2 On this view, the effect of section 315(5) is merely to entrench the Act in the Constitution, and to give it the overriding effect of the provisions of the Constitution vis-a-vis other ordinary laws that are inconsistent with it. This, as Justice Oluwa says, places the Act on a “higher pedestal” than other ordinary laws.3
The view that the listed enactments remain ordinary statutes, and that the effect of section 315(5) is only to entrench them in the Constitution, has more to support it, and is therefore to be preferred. First, if the enactments are part of the Constitution, it would have been unnecessary to have said that “nothing in this Constitution shall invalidate” them, for the Constitution cannot invalidate part of itself. Secondly, the direction in subsection (6) that the enactment shall continue to have effect as “federal enactment” is inconsistent with its being part of the Constitution. While it (i.e. the Constitution) was enacted by the FMG as a way of bestowing the formal quality of law upon it, the Constitution is not a “federal enactment.” A “federal enactment” is a law made by or deemed to be made by the National Assembly. The National Assembly is a creation of the Constitution, and is subject to its overriding supremacy. It would therefore be absurd to speak of the Constitution or any provision forming part of it, as a federal enactment, implying that it is to be deemed to have been made by its own creation. On the contrary, the Constitution is the organic and supreme law of the land, supposed conceptually to have been made by the people and for “the purpose of promoting the good government and welfare of all persons in our country” (preamble). Thirdly, since it is the Constitution that establishes the exclusive legislative list, it is meaningless and contradictory to say that a provision forming part of the Constitution shall have effect as if it related to matters on the exclusive legislative list.
Not being part of the Constitution, the enactments are necessarily “existing law” within the meaning of section 315. It is untenable to concede that any of the listed enactments is an ordinary law and at the same time maintain, as does Justice Oluwa,4 that it is not an existing law within the meaning of section 315. A law in existence at the commencement of the Constitution is either part of the Constitution by incorporation or it is an existing law as defined in section 315(4)(b), i.e. “any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.” Once admit that a law in existence at the commencement of the Constitution is not incorporated into it as an integral part thereof, it becomes untenable to maintain that it is not an existing law. We need not take up here the view that the listed enactment, as ordinary laws in existence at the commencement of the Constitution, are not “existing laws” within the meaning of section 315 because they are not amenable to adaptation by “the appropriate authority” to bring them into conformity with the Constitution; for an extensive discussion of the untenability of this view, see my Federalism in Nigeria (1983, reprinted 2003) pages 158 – 162.
Conflict between the Constitution and the National Security Agencies Act
Conscious of this conflict between the Constitution and the National Security Agencies Act, the Federal Military Government (FMG) that enacted the Act inserted in it an express declaration that the provisions of section 2(3) quoted above “shall have effect notwithstanding the provisions of any other law to the contrary, or any matter therein mentioned” (section 2(4), and that, “if any other law is inconsistent with the provisions of this Act, the provisions of this Act shall prevail and that other law shall to the extent of the inconsistency be void” (section 7(2)). The word “any other law” are not stated to exclude but are intentionally designed to include the Constitution, considering that the Act originated, as earlier stated, as a Decree enacted by the FMG in 1986 in the exercise of its supremacy over the Constitution.
The Act is in conflict with the Constitution for the additional reason that, unlike the NPF, whose powers are limited and circumscribed by various safeguards enshrined in the Constitution for the protection of the liberty of the individual, the SSS is an instrument of personal power in the hands of the President by whom its principal officer (to be known by such designation as the President may determine) is appointed and may be removed, and to whom he is “directly responsible”; (section 3). The President too determines “the number and level of staff to be employed” by the SSS, the transfer and posting of such staff, its structure, the manner in which it is to be administered and its functions exercised, etc.
Thus, the President’s control over the personnel of the SSS – their appointment, removal, promotion and disciplinary control – and of its staff level, structure and administration is absolute and free from the restrictions on his power arising from the powers vested by the Constitution in the Nigeria Police Council in respect of the organisation, administration and general supervision of the NPF; and in the Police Service Commission in respect of the appointment, removal and disciplinary control of the Force.
Moreover, the activities and the exercise of the functions of the SSS are under the unfettered control and direction of the President (section 4), unlike in the case of the NPF whose command is vested by the Constitution in a non-partisan, professional policeman by the title of IGP.
These limitations imposed by the Constitution on the executive power vested in the President by section 5(1) are meant to constitute the IGP, the Nigeria Police Council and the Police Service Commission as independent agencies of the law for the protection and safeguarding of democracy and the liberty of the individual in order to ensure that the Force is not used as, or rather perverted into, instruments of personal power in the hands of the President. In contrast, the President’s control of the SSS is free of, and unfettered by, any restrictions and safeguards, thus constituting it an instrument of personal power. It is in fact being used as such.
It is true that the Exclusive Legislative List in the Second Schedule to the Constitution has as one of the items (item 45) on which the National Assembly may make law, “police and other government security services established by law;” but the listing of matters in the List does not enable the National Assembly to make any law that conflicts or is inconsistent with any provision in the body of the Constitution. Section 1(3) of the Constitution is clear and unequivocal that “any other law inconsistent with the provisions of this Constitution….shall to the extent of the inconsistency be void.” Besides, the principle is well-settled that, whilst a schedule to a statute (like the Second Schedule to the Constitution) is part of the statute to which it is annexed, a provision in the body of the statute prevails in the event of conflict between it and the schedule : see Att-Gen v. Lamplough (1878) 3 Ex.D 214 at page 227; Dean v. Green (1882) 8 P.D. 79 at page 90.
The question whether, given the conflict between them, the Constitution or the Act is to prevail raises some difficulty. The difficulty arises not really because of the stipulation that nothing in the Constitution shall invalidate any of the listed enactments. To say that one law prevails over another does not necessarily imply the invalidity of the latter. It may mean simply that, while both are valid law, one is to be applied in preference to the other; put differently, the one denied application is thereby rendered inoperative, but not invalid. This is exemplified by a case where two provisions of the Constitution being in conflict with one another, one has to be applied in preference to the other; no question of invalidity arises at all, for the Constitution (or other law) cannot invalidate part of itself.
The difficulty arises rather because of the stipulation that the provisions of the listed enactments “shall continue to apply and have full effect…..to the like extent as any other provisions forming part of this Constitution.” The interpretative difficulty is whether this provision should be construed as referring to the effect which the listed enactments are to have vis-a-vis the Constitution or vis-a-vis other laws. In other words, is the provision concerned to determine the relation of the enactments to the Constitution, or merely their relation to other laws? It may be said that the relation of the enactments to the Constitution is not the concern of the provisions. What seems to have been meant is that, in relation to other laws, the listed enactments are to have effect and operate with the same overriding supremacy as the Constitution. The provision is intended to protect the substantive provisions of the enactments against implied alteration or repeal by subsequent legislation which is not enacted in accordance with the prescribed procedure for altering the Constitution. That is its purpose (the relation of the enactments to the Constitution is governed by a different provision, that which says that nothing in the Constitution shall invalidate the enactments.) However that may be, one thing is clear from the provision, namely that the provisions of the listed enactments are not to have a greater effect than those of the Constitution, as they would have if they are to prevail over the provisions of the Constitution with which they are in conflict. And since one must prevail over the other given such conflict, the Constitution, as the organic and supreme law of the land, is the one entitled to prevail.
In view of the provision that the provisions of the Constitution “shall prevail” over any other law that is inconsistent with them (section 1(3)), and given the inconsistency or conflict or section 2(3) of the SSS constituent Act with section 214 and 215 of the Constitution, it would be preposterous if the former were to prevail over the latter. The Constitution would have been turned upside down. These issues are more fully discussed in my Federalism in Nigeria, op. cit., and need not be pursued further here.
The entrenchment in the Constitution of the SSS constituent statute and the glaring conflict between its provisions and those of the Constitution are therefore part of Obasanjo’s grievous legacy of subversion of the Rule of Law in Nigeria. The National Assembly owes to Nigerians an explanation as to why its constitutional review exercise that has been going on for some time now left section 315(5) & (6) of the Constitution unexpunged and thus allowed it to continue to disfigure the Charter of our corporate existence. The Instrument (i.e. the Constitution) in its entirety should be abrogated if for no other reason than to excise the excrescence.
Professor Ben Nwabueze