Guest Columnist Edoba Omoregie
In the last few weeks, the nation has witnessed a flurry of impassioned exchanges over the constitutional proposal to reform the police system in Nigeria. Put simply, the proposal seeks to alter sections 214 and 215 of the Constitution by outright deletion and enactment of new sections 214 and 215.
The extant sections 214 and 215 create a single Nigeria Police Force, under the professional leadership of the Inspector General of Police (IGP) as overall head, and state commands under Commissioners of Police (CP) who are answerable to the IGP. Section 215 also subordinates the IGP directly to the President or his responsible minister, and requires the IGP to comply with the lawful instructions of the President or his minister so empowered to issue such instructions. Similarly, the section empowers the governor of a state or his commissioner so directed to issue command instructions to a CP.
Two troubling aspects of section 215 are worthy of note, although only one of them has received greater public attention. The first is the proviso to subsection 4 which grants a discretion to a CP to decline a lawful command instruction from a Governor or his Commissioner until cleared to do so by his superior at the federal level. The second is subsection 5 which outrightly prohibits judicial review of the command instructions given either to the IGP or CP.
The new constitutional proposal fundamentally alters the present law, and introduces an entirely new police system for the country. The new draft sections (clauses) 214 and 215 abolish the Nigeria Police Force and replace it with two police organizations, one for the federal government and the other for any atate government that chooses to establish it. The new proposal retains the powers of the President (or his responsible minister) and the governor (or his responsible commissioner) to give lawful instructions to the IGP and the CP, respectively.
However, the nature of an instruction to be given is now limited to broad policy matters. The new constitutional proposal expressly excludes command instructions from the purview of “lawful instructions” which may be given. As a matter of fact, the new proposal specially identifies the nature of instructions prohibited to include those directing the police to infringe on the fundamental rights of citizens or obstruct political meetings, among others listed in the new draft section 215.
From the point of view of principle, the new constitutional proposal is a remarkable truimph of federalist solution to a protracted and seemingly impossible constitutional reform – the decentralization of the police system of Nigeria!
It is instructive that the proposal to create separate federal and state police organisations is the first of its kind since 1930 when the Nigeria Police Force was created through the merger of several police formations in different parts of the young colonial Nigeria. Perhaps the closest to what resembles a decentralised police system was the native authority police forces in many parts of the country.
The NA forces were under the command of native authority councils (equivalent of present-day local government councils), but the NA forces were later abolished by the General Yakubu Gowon military government due to widespread (mostly proven) complaints of abuse of police powers by those local forces, underscored by reported infringements on human rights; and their deployment to inflict violent attacks on political opponents of the native authority council governments.
Notwithstanding, the new constitutional proposal seeking to decentralise the police for the first time, after many years of what may be considered analysis paralysis, is a feat worthy of celebrating, especially for many federalist proponents who have long advocated for the states to be properly and constitutionally mainstreamed into the imperative task of securing lives and property, with independent police organisations which are exclusively managed and commanded by the respective states of the federation.
The primary justification for the call for decentralization is the proposition that decentralization accords with the organising principle of subsidiarity, as decentralised police structure enables the states, as integral components of federal system, to act as first-liners in the goal of securing lives and property. This is without prejudice to the authority of the federal government to also secure lives and property, albeit in support of the states, where there is manifest inability of the latter to play that role given the scope and complexities of the security concerns. Thus, the subsidiarity principle, _afortiori_, is a notion which promotes cooperation between the state governments and the federal government to achieve common goals of good governance, with the preference accorded to the government better placed to provide federalist solution when the need arises.
Opponents of the constitutional reform proposal have however not let down their guards. Their main arguments may be summarised thus: they fear that like the abolished native authority forces, a state police force may easily be hijacked by the powers that be especially a state governor to hound and attack political opponents, and oppress citizens. There is also the concern of funding challenges which may cripple the effectiveness of state police forces, as most states continue to grapple with fiscal imbalance.
These concerns have their merits, but it is highly questionable if they are sufficient to obstruct the reform proposal which seems to be long overdue. Do the opposition to the reform proposal translate to solution to the acute security crisis which has confronted every part of the country for many years?
Indeed, most of the arguments presented against the proposed decentralised police system do not contain any remedial solutions to make the country secure, but only regurgitate old fears especially of possible abuses of police powers and infringements of fundamental rights of citizens. These fears have been factored into the new draft constitutional proposals, with the limitation on the executive power to give lawful instructions to the police to ONLY broad policy matters; and the specific prohibition against the use of the police for political purposes, or to infringe fundamental rights, among other unprofessional actions.
Even more innovative is that the new constitutional proposal guarantees the power of judicial review to scrutinize the “lawful instructions” given to the police.
The fear of lean state finances, on the other hand, is surely a non-starter. The constitutional proposal does not abrogate federal powers to police the country and any of its parts. Besides, the proposal does not compel every state to establish a police force. Therefore, the federal government will continue to exercise direct, centralised police powers in states without their police organisations.
In any event, for states which choose to have state police organizations, they would only need to make the necessary budgetary appropriation to fund their state forces in the same way as they appropriate for other public needs.
I conclude this piece by commending the drafters of the constitutional proposal to decentralise the police system and create two separate police organisations for the federal government and willing state governments.
The draft proposal marks a paradigm shift in the effort to provide federalist solutions to the security challenges that have ravaged the country for many years.
The clauses in the new sections 214 and 215 address virtually all the concerns of opponents to state police system for the country especially the fears of political abuses and infringements on fundamental rights. They also guarantee police transparency, professionalism and accountability, which are the hallmarks of a truly democratic police system.
In light of the foregoing, I urge the National Assembly to pass the draft proposals. I also urge the State Houses of Assembly to give speedy approval to the proposals, for final presidential assent.
•Professor Omoregie, SAN is a professor of constitutional law and governance, and the current Vice Chancellor of the University of Benin, Benin City.