NIGERIA POLICE: ANY POWER TO SHUT DOWN A LEGISLATIVE CHAMBER?

ABSTRACT

This article shines a light on an area of the Nigerian Constitution which concerns whether it lawfully granted power to the Nigerian Police Force to be able to shut down the House of Assembly established by the same Constitution, and without the possibility of judicial intervention, as happened to the Ekiti State House of Assembly. The legal analysis of the Constitution in this area found that the shutdown was unlawful. To discourage arbitrariness by those granted power under the Constitution, the author calls for the Constitution’s reform and encourage a new culture in Nigeria where every ’every Nigeria’ sees himself or herself as not the law but one who is answerable to the Constitutional law.¹

INTRODUCTION

The prevention of Benue and Ekiti State House of Assembly’s plenary by the Nigerian Police Force warrants an investigation into the Nigerian laws which governs the exercise of the Force’s duty. This action by the NPF in July 2018 was the prevention of the Ekiti and Benue State Assembly Members from entering the respective House of Assembly’s building to have plenary, therefore shutting down a Nigerian constitutional Assembly. These occurrences are now one of the too many actions taken by the NPF. This article scrutinises the legal power of the NPF to conduct the shutdown. It is mightily vital that any power granted to public officials to exercise control or enforce law and order in a country has its confines and limits, without which abuse of the power is inevitable. The role of the police in a nation is indispensable, in that they are fundamental to the protection of lives and properties, and the maintenance of a country’s law and order. It is, therefore, one of the top primary central institutions of a nation – in Nigeria, one of the top four: The Presidency, the NPF legislature and judiciary. From the NPF’s past and recent actions, which includes the battery allegation of a sitting Governor Ayodele Fayose of Ekiti State, the prevention and bar of Mr Aminu Tambuwal (the then Speaker of the House of Representatives) from entering the National Assembly, the prevention of legal election rallies in Ekiti State, the barricade of the house of the Senate President and his deputy to prevent them leaving – on what was credibly rumoured as a plot to unseat the both of them – and their brutalisation of many Nigerians when they have an ordinary encounter with them on circumstances that need only explanation or interaction or the application of the law to resolve or result. This article investigates whether the NPF are acting on the power granted them by the Nigerian Constitution, or on competing laws, or other powers. Whatever the case, this article seeks to expose the grant of power that should be supreme, and whether the NFA are acting unlawfully when they prevent a constitutionally established Assembly from holding a constitutional plenary and the likely remedies to curb or eliminate such action, which if not urgently and immediately subdued would give the NPF supremacy power over the Nigerian Constitution by what they can do unquestionably.

Any action or law that prevents the operation of a Constitution would be unlawful. In the common law jurisdiction, which Nigeria is one, the Parliament or Constitution is the ‘supreme’ authority. Thus meaning that when there is a law or authority which is competing with the Constitution or Parliament, the latter must prevail, or in a layman’s term, must be followed.  Nigeria has – no evidence that it was followed in many instances- a written Constitution. That Constitution is, therefore, the supreme authority of the land and cannot be prevailed over by any other authority whose law or power must only have been derived from the Constitution. The 1999 amended Nigerian Constitution¹, Section 1 (1) (CFRN 1999) states that ‘This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.’ The subsections (2) and (3) of the same Section goes on to say:

(2) ‘The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except by the provisions of this Constitution.’

(3) ‘If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.’

It is therefore immutable that in Nigeria its Constitution is supreme over all other authorities, or any persons or groups or laws, and any action or omission by any of these that was not by the Constitution would be illegal and done ultra vires.

NPF LAWFUL POWER

As an authority, the lawful power of the NPF originates from the Constitution – the same is the case about the NPF’s establishment. The Constitution gives any member of the NPF ‘powers and duties as may be conferred upon them by law’ (CFRN 1999, Section 214(2)(b)). Whereby it is only the National and State Assemblies that are empowered to make such a law under the Constitution (CFRN 1999, Section 4). The NPF is also empowered under ‘lawful directions’ of the President or any of his Ministers without any stipulated conditions. A State’s Governor or his Commissioner may also give a lawful direction, but on the condition that the President permits it. Whereas, a State Governor may not actually grant power to the NPF due to the condition, and an evidence of this reality could be seen from the Benue and Ekiti States’ incidents, where the governors of the two states had no control of the NPF but were themselves, as media pictures showed, at the receiving end of the NPF’s use of the President’s power. This article focuses on the President’s grant of power rather than the law enacted by the Assemblies because the power the NPF have ensued in the two incidents is not under the Nigerian Police Act³, which is a secondary law below the Constitution.

Under the grant of power to the NPF by the Federal and State Executives, the former does this by giving the directions to the NPF Inspector-General and the latter to the NPF State Commissioner, who in turn execute actions under the power given by the directions. (It is noteworthy that it is the NPF Inspector-General that commands the NPF State Commissioners according to the Constitution. Surprising, between the two NPF offices, they follow this hierarchical command effectively, by the Commissioner strictly complying with the order of the Inspector-General.) Above all, the grant of power to the NPF under the directions is not justiciable (CFRN 1999, Section 5). This power, once granted, can therefore not be subject to any judicial scrutiny. By it, the power to control the NPF lies wrongly and ultimately with the President, and it is absolute power.  The aphorism of one of the most respected historian and politician of the 19th century, Lord Dalberg-Acton that ‘Power tends to corrupt and absolute power corrupts absolutely’² is essential and commonly accurate regarding Nigerian authorities’ possession of power, as they use the power without any respect, and in defiance, of the constitutional authority that granted them power.  Those who conjured the Constitution, admittedly by considerable hard work, are well-meaning Nigeria intellectuals and thinkers who failed to consider the caveat of the Lord. This statement is by no means a laying of blame on them – after all, the Constitution emerged from military dictators, and if anyone is to be blamed, it is the military rulers without excluding a single one of them – but to show a very grave blunder made for allowing the grant of an absolute power to the President.  This article has no room for the discussion about those who conjured the Constitution, so the explanation and evidence cannot be given here other than to say that Nigeria has competent, internationally recognised jurists and scholars (who are also human right activist that would have had the foresight to anticipate the consequence of granting a public officer an absolute power) at the time of the drafting of the Constitution who, given the independence to draft in the interests of Nigeria and its citizens, would have been able to ensure that this arbitrary power was not in the Constitution had they been included in the drafting process. However, this particular grant of power by the President must be reformed because of its absoluteness and lack of explicit judicial supervision. At a minimum, the judiciary must be able to review the directions given by the President, even if he has the ultimate power to grant power to the NPF.

LAWFUL DIRECTIONS

The Constitution stipulates that the President gives lawful directions. This language of the Constitution that, what this article refers to as, the ultimate grant of power to the NPF gives room for a judicial intervention to interpret a lawful direction. The adjective ‘lawful’, used to qualify directives, is critical as to allow a judicial review of any direction given by the President to ascertain whether it is unlawful. By literary interpretation, the direction must be lawful. The relevant Section can provide no other interpretation. The Constitution does not interpret lawful – even though used extensively in the Constitution document. If again, developed from a literary interpretation, any English dictionary definition would suffice. The dictionary defines lawful as ‘conforming to, permitted by, or recognised by law or rules; not contrary to law’. Also, relevant to the operation of the lawful directions is the provision of the Fifth Schedule of the CFRN 1999, Part 1, para. 9 which states as follows:

 ‘A public officer shall not do or direct to be done, in abuse of his office, any arbitrary act prejudicial to the rights of any other person knowing that such act is unlawful or contrary to any government policy.’

If the President thus give a direction to the NPF Inspector-General to prevent certain persons from entering the House Assembly to commence plenary or to prevent the Assembly from sitting, the rights of these citizens would have been prejudiced, because the Assembly Members are Nigerian citizens whose rights are protected under the Constitution. Furthermore, it would be apparent to any reasonable person that such direction would be an abuse of his office since the NPF were not exercising their power as conferred by the NPA 1943 (as amended). Such direction can be conceived similar to a direction given against the President to prevent him from holding a cabinet meeting or operating his Office. It is clear that for the directions to be lawful according to the Constitution, they must not be contrary to the same Constitution. Although, it is arguable that by the Constitution, the grant of power by the President to NPF would prima facie appear lawful once a direction is given. However, if a law was unlawful, the reliance on that law would be at the detriment of the person relying on it. Therefore, the power would be unlawful if the direction itself is contrary to the Constitution; and if such power was granted to the NPF by the President, as this is what is surmised as literal because of the acquiesce, or the lack of directions for immediate withdrawal of the police from the premises, of the President on the incidents. He ought to have condemned or renounced the NPF’s action from the Ekiti’s episode or give directions to the NPF to immediately cease their activities. Importantly also, the fact shows that when the NPF have embarked on the use of this power, it has been against the members of the People’s Democratic Party (PDP), the dominant political party in opposition of President.

Consequently, the grant of the directions would also be contrary to paragraph 1 of the same Schedule, which states that ‘A public officer shall not put himself in a position where his interest conflicts with his duties and responsibilities.’ Thus, any directions by the President to the NPF, to bar or impede or close the operations of any House of Assembly, or any other constitutionally established institutions would be unlawful; and it is evident in the instance incidents that the directions could only have been given in protection of his interest. There is another issue which would affect the liability of the NPF when they follow the unlawful direction. In the interpretation of the Constitution, the NPF Inspector-General would have the discretion not to obey unlawful directions given by the President or his Minister – this also applies to the NPF State Commissioners when given unlawful directions by a Governor or his Commissioner. The Court, therefore, ought to allow the test of its jurisdiction on this grave constitutional issue.

STATE HOUSE OF ASSEMBLY

The House of Assembly of each State in Nigeria has the power to self-regulate itself, and there is no allowance given by the Constitution for interference by any external authority, except the judiciary which can review the Assemblies enacted laws’ compatibility with the Constitution, under the Constitution. This power includes when it holds plenary (CFRN 1999, Section 101). The Constitution mandates the Assembly to hold seating of a minimum of one hundred and eighty-one days in a year (CFRN 1999, Section 104). Therefore, the shutdown of Benue and Ekiti’s House of Assembly by the NPF could cause the breach of the Constitution, as the shutdown could subvert the minimum sitting days requirement. Already mentioned above, an action that undermines the Constitution would be unlawful. In the instant case the NPF Inspector-General, who received his power from the President (or his Minister) through his giving of directions for the closure of the Assemblies, and the President’s directions (power) itself, would amount to illegality. The Assembly has the law-making power under the Constitution which, the intention and spirit according to its construction, subjects the NPF to the rules of the Assemblies by having the constitutional responsibility to make laws that confer power and duties on the NPF. Of course, an individual who is a member of the Assembly may be arrested or prosecuted, but the Assemblies cannot. Consequently, the interference of the operations of any of the State Assemblies by the President and the NPF was unlawful.

CONCLUSION

There is a need for reformation of the Constitution to prevent the President from giving unlawful directions, and the Nigerian courts must be able to review directions given to the NPF. Presently, about the control of the NPF, only the President has the absolute power; as a result, he is not subject to the Constitution on this power, which makes his derived power from the Constitution a supreme law, instead of the Constitution. The Constitution, therefore, needs to be reformed to provide a definite limitation, beyond having to determine whether a direction is lawful or unlawful, for this President’s power; and to deal with the use of the power after by the NPF. The National and State Assemblies also need to be protected from assault, as such that happened to the Ekiti and Benue House of Assembly, in the future through the reform, by clear and certain promulgation prohibiting their control by any of the Nigerian Forces (NPF, Armed Forces, DSS, etc.). Any reform process should consider provisions for a clear and certain mechanism that can ensure that anyone (elite or otherwise, president or servant, police or army, poor or rich) present on the soil of the Federal Republic of Nigeria is not himself or herself the law but he or she completely respect the Constitution. The Constitution laws and the rights its accords need to be made more public by making them part of the educational curriculum and making it available in all public offices. Exigent from the above analysis, however, is that the directions that empowered the NPF to shut down the two Assemblies and the acts are both unlawful and the courts must review them and declared illegal and unconstitutional.

REFERENCE

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Letter to Bishop Mandell Creighton, 5 April 1887 published in Historical Essays and Studies, edited by J. N. Figgis and R.V. Laurence (London: Macmillan, 1907)
3. Nigeria: Police Act [Nigeria], Cap P19 LFN 2004, 1 April 1943, available at: http://www.refworld.org/docid/54f98f244.html [accessed 1 August 2018]

You can reach Israel Sosanya (LLB, LLM) at changebyfusion@gmail.com

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