Policing Under the Constitution
The Prominent Civil Rights Advocacy
group- HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) hereby state as
follows: It is no news that policing and security in Nigeria is the
exclusive preserve of the Federal Government. Section 214(1) of the Constitution
of the Federal Republic of Nigeria 1999 (as amended) provides thus:
“There shall be a police force for Nigeria, which shall be known
as the Nigeria Police Force, and subject to the provisions to this section no
other police force shall be established for the Federation or any part
thereof.”
Subsection 2 (a), (b) and (c) of
the same section provides that:
“Subject to the provisions of this Constitution-
(a) The Nigeria Police Force shall be organized and administered in
accordance with such provisions as may be prescribed by an Act of the National
Assembly;
(b) The members of
the Nigeria Police Force shall have such powers and duties as may be conferred
upon them by law;
(c) The National Assembly may make provisions for branches of the
Nigeria Police Force forming part of the armed forces of the Federation or for
the protection of harbours, waterways, railways and air fields.”
These are re-enforced by Section
4(2) of the Constitution which specifically empowers the National Assembly to
make laws with regards to Exclusive Legislative List thus:
“The National Assembly shall have power to make laws for the
peace, order and good government of the Federation or any part thereof with
respect to any matter included in the Exclusive Legislative List set out in
Part 1 of the Second Schedule to this Constitution.”
In the same vein, Item 45 of the
Exclusive Legislative List in Part 1 of the Second Schedule to the Constitution
specifies “Police and other government security services established by law”
while item 68 of the
List includes “Any matter
incidental or supplementary to any matter mentioned elsewhere in this list”.
It is in this regard that the
Police Act, among other laws, was passed and section 4 of the Act stipulates
the functions of the Police:
“The Police shall be employed for the prevention and detection
of crime, apprehension of offenders, the preservation of law and order, the
protection of life and property and the due enforcement of all laws and
regulation with which they are charged and shall perform such military duties
within or outside Nigeria as may be required of them by, or under the authority
of this or any other Act.”
The foregoing provisions of the
Constitution are unambiguous and the first rule of interpretation being the
literal rule has to be applied to them. The implication is that only the
National Assembly has powers to make law as regards Policing and security
services in Nigeria.
Hisbah Police
In most States of northern Nigeria,
there exists one form of security apparatus or the other under different names
with uniformity of functions and operations of Hisbah. The Hisbah Police
functions principally to enforce Islamic sharia by “enjoining what is right and
forbidding what is wrong on every muslim”.
First, there is the problem of
legality of the outfits whether established by law or not in the light of the
provisions of the Constitution regulating policing and other security agencies
in Nigeria as stated earlier. This clearly negates the argument in some
quarters that such outfits, like Hisbah Police in kano State backed by Kano
State Hisbah Corps Law of 2003 passed by the Kano State House of Assembly, are
legal. The passage of those laws on matters not within the legislative
competence of the State Houses of Assembly makes the laws and by extension the
outfits or organizations which they establish, illegal ab initio.
Second, there is also the problem
of mode of operation which violates rights enshrined in the Constitution. The
Hisbah Police often effect arrest even though the law setting them up do not
empower them in that regard, these they do sometimes in the most crude fashion
including disruption of social and economic activities. They sometimes invade
people’s privacies or premises without warrant or legal authority. They also
carry out raids of vessels or vehicles or premises believed to be harbours of
or used in delivery of alcohol, seize and destroy the products. In 2017 the
Sokoto Hisbah Commission was reported to have stormed the wedding party of the
daughter of the Governor, Aminu Tambulwa, and seized the disk jockey’s musical
instruments for allegedly violating sharia law. Other functions of the Hisbah
Commission include the enforcement of rapists to marry their victims,
settlement of marriage disputes and arrangement of marriages for those without
suitors. Despite the argument that the Hisbah Police do not bear arms, they
have in actual fact been found with arms and have thereby become a threat to
lives in some occasions especially to the non-indigenous residents of or
visitors to the applicable communities.
Third, an inherent problem of the
Hisbah Police is its religious colouration and connection in a heterogeneous
and plural civil society with the right to freedom of thought, conscience and
religion as guaranteed by the Constitution. Section 10 of the Constitution
prohibits the Government of the Federation or of a State from adopting any
religion as State religion. As much as it could be argued that the Hisbah
Police is established in furtherance of peace and order, it is no doubt
specifically to ensure compliance with “Islamic injunction” which is tantamount
to enforcement of the religious standards. And although it is not out rightly
stated to be adoption of State religion, it should be noted that since a State
cannot adopt a religion as a State religion, it also cannot establish an outfit
which primary function is the enforcement of religious standard at a
governmental level.
Conclusion
It is the reasoned view that Hisbah
Police not being an establishment of an Act of the National Assembly and by
virtue of its manner of operation in violation of legal rights guaranteed by
the Constitution as well as enforcing a religious standard as an agent of
the States authorizing it as such is an illegal outfit.
The Nigerian government is hereby
urged to disband the illegal HISBAH POLICE with immediate effect.
Comrade Emmanuel Onwubiko
National Coordinator.
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