By Ayobami T. Durodola, Esq.
INTRODUCTION
In recent times, there has been unending tussle between the Governors of States and the Commissioners of Police as to who holds the scepter of Authority on matters of security within the state, the cold war between the Governors of States and the Commissioners of Police of various states on who is indeed the Chief Security Officer of the State is fast becoming a pig-fight. The war of supremacy between the Governors and Commissioners of Police as at one point in time made River State its locus in quo[1] and at another time most recently made Lagos[2] its branch office. The question of who indeed is the CSO has therefore become a lingering legal question within the Federal System practiced in Nigeria.
THE SUPREMACY OF THE CONSTITUTION
The Constitution of the Federal Republic of Nigeria[3] is supreme and its provisions are sacred such that any other law in conflict with the provisions of the Constitution shall to the extent of its inconsistency be null and void.[4] The court in Attorney-General, Abia State V Attorney-General, Federation (2006) 16 NWLR (PT 1005) 265 at 381 Paras C-E while commenting on the supremacy of the constitution, particularly, My Lord Tobi JSC(rtd) said “The Constitution of a nation is the fons et origo, not only of the jurisprudence but also of the legal-system of the nation. It is the beginning and the end of the legal system. In Greek Language, it is the alpha and the omega. It is the barometer with which all the statutes are measured.
In line with the kingly position of the constitution, all the three arms of Government are slaves of the Constitution, not in the sense of undergoing servitude or bondage, but in the sense of total obeisance and loyality to it”. The above dictun perfectly shows the undisputed supremacy of the Constitution succintly stating the position of the three arms of government to the constitution. It must therefore be on record that the Governor of a state being a member of the executive arm of government is a ‘slave’ to the constitution.
A critical examination of section 176 CFRN 1999 as amended, one will discover that the specific wordings of the section is that “The Governor of a State shall be the Chief Executive of the State” and not Chief Security Officer as widely contemplated by Governors of states of the Federation. A further examination of the Constitution in its entirety equally shows the Constitution did not at any point in time or in any section prounce the Governor of a State as the Chief Security Officer of the State rather, it concentrates the control of the Armed Forces in the President of the country being the Commander in Chief of Armed Forces.
FEDERALISM AND THE TITLE CHIEF SECURITY OFFICER
By virtue of the structure of the Nigerian Democracy, it is visible to the blind that Nigeria practices Federalism[5] and the division of power by the Constitution among the three tiers of government also attests to this fact.[6] The executive powers of the Federation is vested in the President while that of the State is vested in the Governor of the State as clearly provided in Section 5 of the Constitution. (The extent and limitations of the powers are equally contained in the Section)
The implication of the above provision is that power is not centralized at the centre; rather, it is distributed amongst the three tiers of government. Equally, the existence of the Exclusive List[7], Concurrent List[8], and the Residual List[9] is also an attestation to the Federal System practiced in Nigeria.
The Executive as an arm of the government operates through several institutions and one of those institutions is the Nigerian Police Force. The Nigeria Police Force is established by Section 214 (1) of the Constitution[10] and it provides further for the exclusivity of the Nigerian Police Force making it impossible for the establishment of any other Police Force within the Federation.
By virtue of Section 4 of the Police Act 2020, the Nigeria Police is the principal institution saddled with the general security of the Federation.
Despite the fact that Nigeria practices Federalism, the Constitution of Nigeria[11] and the Police Act seems not to recognize Federalism as it fails to give the State Governor explicit authority over the Police Command of a State as given to the President in terms of control over the Police Force all over the Federation. Section 215 (1)[12] puts the power of appointment of the I.G.P who shall superintend over the activities of the Police Force all over the nation in the President of Nigeria and puts the power to appoint the Commissioner of Police who shall superintend over the affairs of the Police Command in the Police Service Commission. The inference of the above is that the Governor is left out of the appointment of the Commissioner of Police who is supposed to marshal the activities of the Police Force in his State.
The marginalization of the Governor of State from the affairs of the Police Force is further strengthened by the provision of Section 215 (2)[13] which expressly places the Nigeria Police Force under the command of the I.G.P and equally places the command of the Police Force in the State under the I.G.P and by extension and delegation, under the Commissioner of Police of the State.
STATE GOVERNORS HANDICAPED
It must be noted that subsection (4) of Section 215[14] made an attempt to extend authority over the Police Force in the State to the Governor but this charade is exposed by the provision added to the section which gives discretion to the Commissioner of Police of the State to refer a matter to the President before acting on the instruction of the Governor. On the face of it, Section 215(4) gives power to the Governor to dish-out instructions to the Commissioner of police on issues bothering on maintenance, securing public safety and public order, to show the extent of power of the Governor, the word ‘SHALL’ which imposes a mandatory duty on the Commissioner to consult the President before acting on the instruction given by the Governor is a clear withdrawal of the authority given to the Governor in the section.
Another pointer to the fact that the Governor of a State is less-privileged and handicapped on matters of superiority and hierarchy on matters of Police Force is the inclusion of a proviso in 215(4) while no such proviso is included in 215(3). The power of the President over the Police Force is absolute, put differently, unfettered not forgetting the fact that he is the Commander-in-chief of the Armed Forces.
However, the Governor also should be allowed to enjoy such privilege bearing in mind that Nigeria practices a Federal system and the Governor oversees the affairs of a State. At best, the authority of a Governor over the Commissioner of Police should be maximum and subject only to the authority of the President of the Federal Republic and not the sharp contrast evinced by the wordings of Section 215(4), the lawful directions issued by a Governor is subject to the discretion of the Commissioner of Police and subsequently the authority of the President.
As if the above cited annihilation of the powers of the Governor over the Police Command in his State is not enough, the Constitution also places Police under the Exclusive List which means the business of the Police Force is entirely and purely a Federal matter.
The one million dollar question therefore is whether the wordings and provisions of Section 215[15] in its entirety in consonance with the tenets of Federalism, bearing in mind the provisions of Section 2(2) of the Constitution?
The answer is in the negative. A Federal State has peculiarly as one of its characteristics, the division of power between the federating states and the government of the Central. If the above is true, then the power and duty of security of life and properties of the citizens of Nigeria as it is in section 14(b) of the Constitution should be shared between the President at the Federal level and the Governor presiding over the federating states, hence, the reasoning that such Governors have power to secure their subjects or citizen through control over the security apparatus in the State, particularly the Police.
It is therefore safe to say that the provisions of section 215(4) betrays the presumption of Nigeria as a Federal State and equally makes it impossible for the Governors of State to protect their citizens and make security of their citizens their priorities as they have no command over the security apparatus of the States.
THE CHIEF SECURITY OFFICER IN THE EYE OF THE CONSTITUTION
By virtue of section 214(1) and (2) of the 1999 Constitution, there is only one Nigeria Police Force and it is for the whole Federation and not for any part thereof. The Nigeria Police Force and the Inspector General of Police are therefore agencies of the Federal Government.
The Court of Appeal interpretes the above cited section perfectly in the case of Aniakor V Nigeria Police Force & Ords. (2014) 15NWLR (PT 1429) 155 where Per YAHAYA J.C.A. at pages 173-174, paras. A-C opined that “it is a single united Force under the command of the Inspector-General, who is appointed by the President, on the advice of the Nigeria Police Council. A Commissioner of Police is appointed not by States, but by the Police Service Commission and is posted to a state of the federation. The Commissioner of Police for a State is under the Nigeria Police Force and so is under and answerable to the Inspector-General of Police. He is not working as an agent of the State where he is posted. Contigents of the Nigeria Police Force are then stationed in each State of the Federation and they are under the command of the Commissioner of Police, not the States where they are stationed. The Commissioner of Police is subject to the Authority of the Inspector-General of Police, not the State where he is posted to. The position therefore, is that the States do not establish a Police Force, and do not appoint or control the officers of the Nigeria Police Force. The responsiblilities fall squarely, by virtue of the 1999 Constitution, on the President and the Police Service Commission. The presence of the Force in a State is for the purpose of administration, not control. The duties of the Nigeria Police Force discharged in arresting, detaining, prosecuting offenders and keeping the peace and security of the Nation are in pursuance of the functions of the Federal Goverment, not the state, as such, it is therefore a Federal Agency”. The dictum cited above makes it naked to all that the Police contigent resident in a State of the Federation is not responsible to the Governor of such State, rather it is responsible to the Federal Government being an apparatus of the Federal Government and a Federal Government Agency.
WAY FOREWARD
Conclusively, to salvage the situation, it is best that the National Assembly amends the wordings of Section 215 to recognize the unfettered power of the Governors over the security apparatus in their States, particularly the Commissioner of Police. This is imperative to lay to final rest the recurrent friction between the Governors of the States and the Police hierarchy in the States of the Federation.
Ayobami T. Durodola, Esq. Is currently an NYSC Associate at Yusuf O. Ali SAN & Co. He can be reached at: durodolatosin1234@gmail.com or on 07031863481
Footnotes
[1] https://guardian.ng/news/wike-foils-dss-police-plot-to-adopt-high-court-judge/ accessed on 16th March 2022
[2] https://punchng.com?breaking-police-csp-deployed-to-magodo-by-malami-igp-defies-sanwo-olu-openly/?amp
[3] Constitution of Federal Republic of Nigeria, 1999 as Amended
[4]Section 1(1) & (3) CFRN 1999 as amended
[5] Section 2, CFRN 1999 as amended
[6]Section 4, 5 & 6, CFRN 1999 as amended
[7]Part I, second schedule to 1999 Constitution as amended
[8]Part II, second schedule to 1999 Constitution as amended
[9]All maters excluded from the exclusive and concurrent lists are placed within the domain of the state to legislate on.
[10] Op.cit.
[11]CFRN 1999 as amended
[12]Ibid
[13] Ibid
[14] Ibid
[15] Ibid e