Recently, the Senate Committee on the Amendment of the Constitution of the Federal Republic of Nigeria ( as amended), chaired by the Deputy Senate President, Senator Ekeremadu submitted its Report to the Senate. In the Report, the Committee recommended that the Constitution, which, aberrantly, was promulgated into law by the General Abdusalami Abubakar Federal Military Government under Decree No.24 of May 5,1999, be further amended.
The Constitution, previously, has been amended ( altered ) three times, and these amendments are labeled first, second and third alterations. The National Assembly have rejected all suggestions that a sovereign national conference be convoked to discuss, write and agree on a new constitution for Nigeria, a constitution, which must be ratified in a popular referendum, to pass the test of legitimacy. Instead, the National Assembly has, thus far, embarked on an endless, time consuming and money-guzzling ” panel-beating” of the congenitally flawed military decree being operated as the constitution.
The news media reported that in the Senate Committee’s Report, prisons, railways, stamp duties and wages are recommended to be removed from the Exclusive Legislative List , which contains items over which the National Assembly ( or the Federal Government) has exclusive legislative authority, and put in the Concurrent Legislative List in the Constitution.
This implies that if the Report is accepted by the Senate, and later the House of Representatives, and the requisite number of concurring or approving votes of the Houses of Assembly of the States are secured, the Constitution may be further amended ( for the fourth time), and thus, both the Federal Government and State Governments will be able to separately run their prisons. States may also be empowered to operate intra state and inter-state railways, and disparately fix intra-state wages ( something to worry about, because of its implication for the national minimum wage, fixed under the National Minimum Wage Act).
Under the prevailing situation, no State Government can establish a police force or operate a prison and no state legislature can enact any law on police or prison, police and prison being listed as item 45 and 48, respectively, on the Exclusive Legislative List.
We have publicly posited that Nigeria’s Federalism is fake. It is an adulteration. It is false to label a unitary state a federal state. If Nigeria were to be practicing true federalism, every State in the Federation will not only have a state government, state legislature, state judiciary, but also a state police and a state prison service. Further, every Local Government in a State will have a police service and a prison. In the United States, you have Federal, State and County Prisons. And Federal, State and County Police. That is Federalism.
In Nigeria, however, we have a distortion. We have three layers of government in Nigeria: Federal State and Local. The three layers, ideally, must have their respective law enforcement machineries and penal or prison systems, since law-enforcement is an intrinsic feature of governance. “State governments and local governments” without state police” and “local government area police”, are, therefore, an aberration. A government, without a law enforcement machinery is not a government, properly so called.
It is ridiculous to have federal offences tried by a Federal High Court, state offences tried by a State High Court and local offences that are tried by magistrate and customary courts, and yet have one centralized police system and one centralized prison system. The criminal law in breach of which a person may be arrested, investigated, detained, arraigned, tried and convicted and sent to prison or sentenced to death is a shared legislative responsibility of both the Federal and State Governments.
For example, murder, kidnapping, stealing, and rape are state crimes ( that is criminal offences defined in, and punished by the criminal code laws or penal codes of the States in the “Nigerian Federation”). Terrorism and Treason are Federal Offences ( that is criminal offences defined in and punished by the Criminal Code Act or Penal Code Act of the “Nigerian Federation”, and designated as federal offences therein; or defined in and punished by any other federal criminal legislation ( an Act of the National Assembly).
The ideal arrangement is that a criminal suspect accused of infracting a state offence or crime should be apprehended, investigated, detained and tried by the State Police ( or Local Government Area Police, in appropriate cases) and by the office of the Attorney-General of a State. When such a person is convicted, he or she is made to serve terms in a state prison facility.
Similarly, a criminal suspect accused of infracting a federal offence or crime should be apprehended, investigated, detained and tried by the Federal Police Force or Service, and by the office of the Attorney-General of the Federation. When such a person is convicted, he or she is made to serve terms in a federal prison facility. What we have now is lumping together of both federal offenders and state offenders at the crime apprehension, investigation and prevention stage; and at the imprisonment or criminal judgment enforcement stage.
The Nigeria Police Force, established and provided for under Section 214-216 of the Constitution, and under an Act of the National Assembly ( Police Act), as a unitary organisation, and other sister security organisations ( SSS, DMI, NIA, EFCC, ICPC, etc) that are similarly established and provided for by law, investigate all state and federal crimes; and the Nigeria Prison Service, unitarily organised and operated by the Federal Government of Nigeria houses those serving custodial punishments.
This oddity does not make local and state governments take responsibility for law enforcement and crime punishment in their domains. And so, law enforcement and crime punishment, controlled by the Federal Government from the centre, become unwieldy and ineffective. This is the situation in Nigeria. It is all too common to see the Nigeria Police Force Criminal Investigation Department, Federal Capital Territory, Abuja handling ordinary cases, on transfer, from Cross River, Sokoto, Borno and Lagos States.
If a criminal complainant or suspect writes a petition to the Inspector-General of Police alleging bias, cover-up, corruption or lack of professionalism in the investigation of a criminal matter being handled by a State Police Command, the matter, under investigation, is transferred to Abuja, many times, along with criminal suspects. Other times, the Force Headquarters CID invites suspects to report in Abuja. Land disputes and chieftaincy matters with elements of violence, and homicide cases are transferred to Abuja-all in the name of conducting investigations. And suspects, their relatives and attorneys and complainants and witnesses start incurring huge boarding and lodging expenses. Not to talk of the pain of securing bail for detainees; bail, which the Police, in self-deceit, proclaims is free.
Can anybody who is familiar with the police system in the United States imagine a situation in which an ordinary homicide case in a county in California or in New Jersey is referred to the FBI in Washington, DC, based on a petition that is written by an interested party who is dissatisfied with the level or pace of investigation? Nigeria, indeed, is sick.
State Governments now routinely supplement Federal Government’s budgeting and provision for police and prisons. Take Lagos State for example. A security trust fund was set up. Logistical support, weaponry, equipment, and allowances are provided for the Police Rapid Response Squad and Operation MESA which comprises military personnel, to carry out civil policing. Vehicles and other supports are also provided for the Prisons. And the Chief Judge of the State goes to Ikoyi and Kirikiri Prisons to decongest prisons every time. So, the State Government is supplementing and funding the inefficiency of the Federal Government that is running a unitary system of government and passing it off as a federal system of government.
It has not always been like this. At independence in 1960, and up to 1966, when the military overthrew the government, the police system in Nigeria was truly federal. Chapter VII of the 1963 (Republican) Constitution of Nigeria provided for the Police. Section 105- Section 110 provided for the Establishment of Nigeria Police Force, Control of Nigeria Police Force, Establishment of Nigeria Police Council, Functions of Nigeria Police Council, Establishment of Police Service Commission, and Appointments to Nigeria Police Force, etc, respectively. Section 105 (1) provided that ” there shall be a police force for Nigeria, which shall be styled the Nigeria Police Force” Section 105(4,5,6 & 7 ) then provided that ” subject to the provisions of this section, no police forces other than the Nigeria Police Force shall be established for Nigeria or any part thereof; Parliament may make provision for police forces forming part of the armed forces of the Federation or for the protection of harbours, waterways, railways, and airfields; Parliament may make provision for the maintenance by any local authority within the Federal territory of a police force for employment within the Federal territory; and nothing in this section shall prevent the legislature of a Region from making provision for the maintenance by any native authority or local government authority established for a province or any part of a province of a police force for employment within that province ( in this subsection, “province” means any area that was a province on the thirtieth day of September, 1954)”.
It can be seen that under the foregoing subsections of Section 105 of the defunct 1963 Constitution, not only was the legislature of a Region ( like the House of Assembly of a State) empowered to make a legislation permitting a native authority or local government authority to maintain a police force for any province within a Region, but also the Federal Parliament was empowered to make a legislation permitting any local government authority within the Federal territory to maintain a police force within the Federal territory ( Lagos Federal Capital Territory, then).
If similar provisions were to be incorporated into the 1999 Constitution, it means that legislative houses of states will be able to enact legislations permitting Local Government Councils to maintain police forces all over the Federation, even as the National Assembly can competently legislate to allow the Federal Capital Territory, Abuja to maintain Area Council Police Forces within the Federal Capital Territory. Sadly, however, we are now being told that our Country which was ripe for a federalized police system in 1963 is not ripe for such a system, fifty years after.
This is nothing but a tragedy of statecraft and a mockery of governance. If members of the ruling class who are opposed to the re-federalization of the police system in Nigeria bother to research the past, especially the factors that led to the winding up of a federal police system in Nigeria, they would have found out that the real reason for the scrapping of a federal police system, following the military take-over of government in 1966, and the civil war that quickly followed between 1967 and 1970,was that the military government felt that allowing disparate armed police forces to exist at the local levels in the country was inimical to its unitary, centralized command, and anti-secessionist agenda.
In case it has been forgotten, we recall here that even within the military, there was a selective ethnic-disarmament in the wake of the Gowon-led counter-coup of 1966. Soldiers of Western Nigeria extraction, and in the Western Region of Nigeria who were “not trusted” by the Northern Nigeria-dominated counter coup makers were disarmed. That was the context in which the federal police system was abolished by the military. Unfortunately, what the military conceived as an episodic existential necessity then is now being ignorantly celebrated as an eternal imperative.
Also, at Independence in 1960 and up to 1966, when the military overthrew the government, there was a Prison Ordinance of 1916 under which the central or national government of Nigeria organized and operated her prisons, and the Native Authority Ordinance of 1916, under which Native Authorities ( local governments) similarly were empowered to organize and operate their prisons. When the military took over the government, however, it promulgated the Prisons Control Decree No 9 of 1966, by which the Federal Military Government took over the control of Native Authority Prisons.
Subsequently, following the revision of the prison law and regulations, the current Prisons Act in Nigeria was promulgated as Decree No 9 of 1972.The unification of the prisons by the military was justified on the alleged ground that during the 1st Republic, politicians in power were using native authority police and prison to repress political opponents.
We are amazed that the Senate Committee on the Amendment of the Constitution failed to realize that the grounds for proposing the re-federalization of prisons are also the same grounds for recommending the re-federalization of the Police, and even the Judiciary. Can they quickly make amends in the spirit of this constitution amendment exercise?
Mr. Ogunye, a constitutional lawyer and public interest litigant writes from lagos.