By Aare Afe Babalola, SAN,
The Governor of Katsina State, Governor Bello Masari, recently called the residents of the state to take up arms against bandits and kidnappers; a call clearly supported by some Northern socio-cultural groups, including the Arewa Consultative Forum, ACF.
In particularly supporting this move, the ACF, through its national publicity secretary, added that a similar move of self-defence was carried out in the Southwest by Chief Sunday Adeyemo (Sunday Igboho) who rescued Ibarapaland from banditry and the onslaught of Fulani herdsmen.
Similarly, it had earlier been reported that the Executive Governors of Benue and Zamfara states, Governor Samuel Ortom and Governor Bello Matawalle, also called on the residents of their states to rise in their own defence whenever being attacked by killer herdsmen.
Security of lives and properties is the primary duty of government: According to the social contract theory, every government has an obligation to the governed.
In his famous book, The Social Contract, Rousseau propounded that in the state of nature, humans were unwarlike and somewhat undeveloped in their reasoning powers and sense of morality and responsibility. When, however, people agreed for mutual protection to surrender individual freedom of action and establish laws and government, they then acquired a sense of moral and civic obligation.
In order to retain its essential moral character, the government must thus rest on the consent of the governed, the volonté générale (“general will”). Therefore, it is generally agreed that the individual has expressly or tacitly given up his freedom to the government in return for the protection of that government.
As a result, the individuals or citizens are expected to live harmoniously and in accordance with the laws of the land while the government provides security of life and property. This theory pervades all modern societies with varying degrees of success.
Realising the existence of a social contract, Section 14(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:
14.(1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.
(2) It is hereby, accordingly, declared that:
a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority;
b) the security and welfare of the people shall be the primary purpose of government: and
c) the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution
Clearly, from the above, the Nigerian Constitution recognises that it is the primary function of government to ensure the security and welfare of its citizens. Certainly, where there is insecurity, no economic activity can thrive – and will consequently result in food insecurity which is presently being experienced in some northern states where farmers cannot go to the farm without fearing for their lives.
The general failure of the government in fulfilling its constitutional mandate to the people has, more often than not, resulted in dire consequences, usually with the lower-class citizens and the bourgeoisie being the most at the receiving end. Such is the daily reported incidences of banditry, mindless killings, and kidnappings being perpetrated particularly in the Northern region.
According to the 2018 – 2019 report of the Strategic Monitor, security refers both to physical security as well as identity security and when a government can successfully provide both prosperity and security to a citizen, the social contract is fulfilled.
However, if these two factors are not met, then it opens the door to potentially troubling consequences. Insecurity and marginalisation are often synonymous, and where marginalised groups of citizens believe that their security and livelihood are threatened, they may no longer be inclined to support their country’s institutions.
By implication, therefore, declining faith in government can negatively affect its legitimacy, weaken its ability to carry out its functions such as maintaining order, defending national sovereignty, and managing economic conditions, and can eventually lead to the deterioration of social cohesion, justice, and solidarity. A key condition of a functioning social contract is that citizens partially surrender their individual rights and adhere to said contract to maintain social order. This social order allows individuals to obtain prosperity, one that is possible with others rather than alone. However, with rising insecurity, it is difficult to comprehend how the existence or the maintenance of social order can be sustained.
The right of self-defence under the Constitution: The right to self-defence has long been recognised, even in the Bible. It was recorded in Esther 8:11 that ‘by these letters, the king permitted the Jews who were in every city to gather together and protect their lives – to destroy, kill, and annihilate all the forces of any people or province that would assault them, both little children and women and to plunder their possessions. It was later recorded in Esther 9:2 and 5 that ‘the Jews gathered together in their cities throughout all the provinces of King Ahasuerus to lay hands on those who sought their harm… Thus, the Jews defeated all their enemies with the stroke of the sword, with slaughter and destruction, and did what they pleased with those who hated them’.
Though under different climes and circumstances from the biblical reference above, the Nigerian Constitution also recognises the right of a person to self-defence, perhaps in recognition of the possibility of the failure of government in its primary duty to ensure the protection of lives and property. The Constitution absolves any person from criminal liability for the killing of another in the protection of his life or property. Section 33 of the Constitution provides thus:
33(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.
(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –
(a) For the defence of any person from unlawful violence or for the defence of property…
Also, the Supreme Court in Aminu v. State (2019) LPELR-48809(SC), pronounced on the right of a person to defend his life and property from any unlawful violence in the following words: “A successful plea of self-defence negatives the existence of an offence, so that where a person kills another person in defence of any person from unlawful violence or for the defence of property, it is excused, and it does not amount to manslaughter under the Criminal Code or culpable homicide NOT punishable with death under the Penal Code, see Section 33(2)(a)of the 1999 Constitution (as amended) that says: “A person shall not be regarded as having been deprived of his life in contravention of this Section, if he dies as a result of the use, to such extent and in such circumstances, as are permitted by law, of such force as is reasonably necessary- (a) For the defence of any person from unlawful violence or for the defence of property.”
Notwithstanding the above provisions, however, no government should abdicate its primary duty of protecting its citizens.
As a matter of fact, it has been reported that the sophisticated weaponry with which the armed bandits perpetrate their heinous acts has always made a reasonable resistance nearly impossible. Against this fact, how then are the victims of these attacks supposed to defend themselves against fully armed assailants? Will the Federal Government through the office of the Inspector General of Police grant these communities licenses to equally carry sophisticated firearms in the effective defence of their lives and properties? Most likely not.
It, therefore, calls for so much more to be done by the government in bolstering the security apparatus of each state, and not entirely entrusting the citizenry to defend themselves against well-armed bandits with cudgels and sticks. The constant renewal of the social contract through elections is usually accompanied by promises of ensuring the safety and security of citizens and the improvement in the standard of life.
In Nigeria, however, the unfortunate trend is that, as against the basic tenets of the social contract theory, elected government officials in Nigeria have, for several years, failed to show any appreciation for the fact that in exchange for their votes, the people require the service of the government, particularly in ensuring security.
What is often of paramount importance to most politicians in Nigeria is how they will attain political office without any adequate thought as to how they will perform the duties of that office – such would account for why politicians will call on the electorate to vote them into power and, unfortunately, renege on their own end of the bargain to defend the peoples’ lives and properties; sad indeed!