A CRITICAL ANALYSIS OF THE PROS AND CONS OF STATE POLICING: TO BE OR
NOT TO BE BEING A PAPER PRESENTED BY DR. SOLOMON EHIGIATOR ARASE (FMR
INSPECTOR GENERAL OF POLICE) AT NBA BENIN BRANCH 2018 LAW WEEK
(11TH JUNE 2018) 2 CRITICAL ANALYSES OF THE PROS AND CONS OF STATE
POLICING: TO BE OR NOT TO BE INTRODUCTION 1. After one-and-half
decades of unbroken military rule, Nigeria returned to multiparty
civilian administration on 29 May 1999. Almost two decades already,
one of the enduring lessons of the new civilian dispensation; one in
which the country has witnessed four back-to-back political
transitions, is that posed by the maintenance of public law and order.
To be sure, the challenges are myriad and complex, ranging from the
more familiar acts of criminality perpetrated by armed robbers to
violence associated with the proliferation of a variety of armed
groups contesting among themselves at the same time that they
undermine constituted authority. Between these extremes, Nigeria has
witnessed the more conflicts linked to religion, ethnicity,
contestations over the ownership of and benefits deriving from natural
resources, disputes over traditional authorities, access to and
control of land for farming and grazing, and the resurgence of violent
sub-national groups. 2. A critical constituency in the academia
believes that the Nigeria Police Force as presently constituted cannot
effectively carry out the core mandate of policing: to serve and
protect citizens. Those persuaded by this argument insist that after
almost six decades of independence, the Nigeria Police Force has still
not purged itself from its past as an instrument of coercion in the
hands of the colonial – now postcolonial-state and that of the elite.
They draw attention to 3 the highhanded manner the police frequently
operate; be it on simple matters like attending to individual
complainants or when there is a major breach of law and order.
Regardless, what is clear from the nature and trajectories of violent
conflicts in Nigeria is that they stretch the police as the
institution principally responsible for the maintenance of law and
order to the limit. In the first instance, these conflicts are hardly
ever standalone; they are almost always linked to broader
contradictions of governance and accumulation that have dogged the
country consistently since independence. For this reason, and more,
effectively preventing and managing (if not resolving) them go beyond
conventional responses. Second, the violent conflicts are not
necessarily episodic flash-in-the-the-pan events but they tend to be
ad-hoc and largely reactive, NOT measured and proactive; with emphasis
mostly placed on addressing symptoms rather than the root causes. 3.
Third, the country has witnessed both a considerable pluralization as
well as privatization of policing; the former evident in the
establishment of hybrid policing agencies such as the Nigerian
Security and Civil Defence Corps by the Federal Government that
operate parallel to the Nigeria Police Force while the latter is
reflected in proliferation of a plethora of non-state and private
sector policing institutions. Again, the jury is still out in respect
of what such democratization of policing’ means for the Nigeria Police
Force and the delivery of its constitutional role. The trend that is
becoming evident is that such organisations established to complement,
or fill-in-the gaps, sometimes set themselves up against, or are made
to see themselves as alternatives to, the Nigeria Police Force. There
have been dire consequences arising from unhealthy, and often
unnecessary, battles for supremacy between the personnel of the
Nigeria Police Force and hybrid policing institutions in Nigeria,
including how much rivalries further undermine law and order, if not
trample on the liberty and dignity of innocent, law-abiding citizens.
4. Fourth, and by no means the last trend, is that in very short
periods violent conflicts leave a heavy toll in terms of the loss of
lives and the destruction of invaluable property. This happens not
only because what is necessary to nip such violent conflicts takes
time in coming but also due to the fact that the country has seen a
frightening proliferation of small arms and light weapons in the wrong
hands. Underlying all of the issues and challenges in the maintenance
of public law and order in contemporary Nigeria is that institutions
created or mandated to tackle them either do not have what it takes to
effectively respond to their changing forms and complexities or they
face myriad and increasingly, overwhelming challenges; at one remove,
internal (capacity, resources, processes etc) and at another external
(policy and political environment). This is clearly the case with the
Nigeria Police Force which is the agency of government
constitutionally responsible for the maintenance of law and order in
the country. The operational control of the Nigeria Police Force is
vested in the Inspector-General of Police who reports to the President
of the Federal Republic. Because the Nigeria Police Force is scheduled
within the 5 exclusive list, the Federal Government exercises absolute
control over it whereas political heads of the other two tiers of
government: the State Governors and the Local Government Chairpersons,
despite acknowledging them as Chief of Security Officers of their
constituencies, are virtually helpless even in matters pertaining to
the routine maintenance of law and order. These issues were aptly
captured in the seminar paper by Associate Professor Kemi Rotimi,
“Approaches to the Policing of a Perplexed Society.” CONTROL OF THE
NIGERIA POLICE FORCE 5. A discussion of the constitutional role of the
Nigeria Police Force raises the issue of who has the control over the
force and the quest for state police. A related issue is that of level
of decentralization of the police, especially from the perspective of
the force. The Nigeria Police Force is somewhat decentralized
notwithstanding its command structure. The focus is therefore not much
of centralization but on the control of the force, and issue of
multiple forces. 6. The Nigeria Police Force is centralized at the
level of the Federal Government and the force is controlled at that
tier of government. Section 215(1)(a) of the Constitution provides
that the President shall appoint an Inspector-General of police from
among serving members of the Nigeria Police Force. He is however,
required to seek the advises1 of the Nigeria Police Council or
consult2 the Council. The membership of the Nigeria Police Council 1 .
Section 215(1)(a) of the Constitution 2 . Section 216(2) of the
Constitution 6 consists of the President who is the Chairman of the
Council, the Governor of each state of the Federation, the Chairman of
the Police Service Commission and the Inspector-General of Police. The
members of the Council including the Governor of the states are
thereby in a position to advise the President on the appointment of an
Inspector-General of Police. The membership of the Council by the
Governors is an innovation in the 1999 Constitution unlike the 1979
Constitution which did not provide for the membership of the Council
by the Governors. In reality, the President is not bound by the advice
of the Nigeria Police Council; the President appointments the
Inspector-General of Police. 7. By the provisions of the Constitution,
before removing the Inspector General of Police from office the
President shall consult the Nigeria Police Council.3 Some scholars
have stated rightly that, like in the case of appointments the
President has to fulfill a condition precedent of consulting the
Nigeria Police Council, but he is not bound by the outcome of the
consultation before removing an Inspector-General of Police from
office. 4 Below, the Inspector-General of Police, there are
Commissioners of Police, who, by virtue of Sector 215(1)(b) of the
Constitution, are appointed by the Police Service Commission. Any
“contingents of the Nigeria Police Force stationed in state 3 . Ibid.
4 . Ibid. 7 shall, subject to the authority of the Inspector-General
of Police, be under the command of the Commissioner of Police of that
state.” 5 8. The provisions of Section 215(3) and (4) of the
Constitution support the argument that the Federal Government has
overall control of the Nigeria Police Force. 6 It is pertinent that
the President or such other Minister of the Government as he may
authorise in that behalf may give to the Inspector General of Police
such lawful directions as he may consider necessary7 and the
Inspector-General of Police shall comply with those directions.8 In
the same vein, the Commissioner of Police of a state is required to
comply with or cause them to be complied with the lawful directions to
them by the Governor of the state or such Commissioner of the
Government of the state as he may authorize in that behalf. 9 The
Constitution provides that the Commissioner of Police may request that
the matter be referred to the President or such Minister of the
Government of the Federation as may be authorized on that behalf by
the President for his directions.10 In the two situations, the courts
may not inquire into whether or what directions have been given. 11 5
. Badaiki, AD, Op. Cit., p. 176. See also Nwabueze, BO, The
Presidential Constitution of Nigeria, C Hurst & Company, London in
Association with Nwamife Publishers, Enugu and Lagos, 1982, pp.
144-145. 6 . Section 215(2) of the Constitution 7 . Badaiki, AD, Op.
Cit., p. 177, and Ijalaye, DO, The Imperatives of Federal/Satte
Relations in a Fledging Democracy Implications for Nigeria, Nigerian
Institute of Advanced Legal Lagos, 2001, p. 10. Argue that the
ultimate control of the Nigeria Police Force resides with the Federal
Government. 8 . Section 215(3) of the Constitution. 9 . Ibid. 10 .
Section 215(4) of the Constitution. 11 . Proviso to Section 215(4) of
the Constitution. 8 9. The provisions of Section 215(5) of the
Constitution oust the jurisdiction of the court on whether any
direction is given or the type of directions given. “The question
whether any, and if so what, directions have been given under this
section shall not be inquired into in any court. According to Prof
Badaiki, when statutory provisions oust the courts’ jurisdiction, the
courts are prevented from examining the issues involved and from
questioning the exercise of the authority conferred by the statute. 12
He stated rightly: The ouster clause in Section 215(5) of the
Constitution is justified because in deciding whether or not to give
lawful direction and the kind of lawful direction given under the
subsection, the President or such other Minister of the Government of
the Federation or the Governor of a state would always consider
security matters. Such security matters may constitute some of the
issues of determination by the court. To allow such security matters
to be a subject of inquiry by the court can be inimical to the
security of the nation. it is, however, submitted that where unlawful
directions have been given by the state officers under the sub-section
in question, the jurisdiction of a court is not excluded.” 13 10. The
Nigeria Police Force is largely under the control of the President,
the head of the Federal Government. He appoints and removes the
Inspector General of Police who is responsible to the President whose
lawful directions he must carry out. The lawful directions given by a
Minister, “in that behalf” must be by the Minister authorized by the
President. The same position applies where the Governor of a state or
such Commissioner of the Government of the state as he may authorize
on that behalf gives lawful instructions to the 12 . Section 215(5) of
the Constitution. 13 . Badaiki, AD, Interpretation of Statutes, Tiken
Publishers, lagos, 1996, p. 70 . 9 Commissioner of Police of a state.
However, before deciding whether or not to comply with the lawful
direction of the Governor or that of the Commissioner authorized by
the Governor in that behalf, in exercise of the Constitutional
discretion conferred on the Commissioner, the Commissioner may request
that the matter be referred to the President or such Minister of the
Government of the Federation as may be authorized in that behalf by
the President for his directions. QUEST FOR STATE POLICE 11. A major
issue that the establishment of Nigeria Police Force under the control
of the Federal Government has raised over the years especially during
civilian democratic government is whether states should not be allowed
by the Constitution to set up their police forces. There are both
protagonists14 and antagonists15 of creation of the state police
forces with each group having their reasons for their viewpoints. 12.
One of the arguments of the protagonists is that creation of a state
police force reflects Nigeria as operating a true federal system of
government.16 The existence of a single police force in the country
does not deter Nigeria, 14 . Badaiki, AD, Centralisation and Control
of the Nigeria Police Force: Revisiting the Debate on State 15 . For
example, Badaiki, AD, Op. Cit pp. 176-179, Akande JO, Introduction to
the Constitution of the Federal Republic of Nigeria,” The Constitution
of Journal of Constitutional development, Vol 3, No 1, September 2002,
p. 55, Nwabueze, BO “Reflections on the 1999 Constitution: A Unitary
Constitution for a Federal System of Government,” a paper presented at
a Seminar organized by the International Commission of Jurists, Abuja
14-16 February 2009, p. 35. 16 . For examples, Ijalaye DO, The
Imperatives of Federal/State Relations in a Fledgling Democracy
Implications for Nigeria, Nigerian Institute of advanced Legal
Studies, Lagos, 2001, pp. 9.12’ Nmerole, CI Police Interrogation in
Criminal Investigation (Historical, Legal and Comparative Analysis
Holygraph Nig Ltd, Minna 2008, p. 4. 10 being a true federal system.
It is based on the exigencies of the time as determined by the abuse
to which multiplicity of police forces was put in the past. There is
no absolute federalism. In Chief Adebiyi Olafisoye v. Federal Republic
of Nigeria17 , Niki Tobi JSC stated as follows: “There are ideas of
federalism propounded and developed by constitutional law scholars and
political scientists, the world over. These ideals and ideas are goals
set up to achieve true federalism. No Constitution can really achieve
such goals, which are largely utopia(sic). Such goals are ideals by
and large, and at the end of the day, judges must interpret the
provisions of the Constitution and not the ideals.” His Lordship
further asserted: “A Federal Government will mean what the
Constitution writers say it means. And this can be procured within the
four walls of the Constitution. Therefore, a general definition of
federalism or Federal Government may not be in the answer to the
peculiar provisions of a nation’s Constitution which is the font of
its legal system. Thus, the word federalism conveys different meanings
in different Constitutions as the constitutional arrangements show
particularly in the legislative lists.” 13. Similarly, Inegbedion and
Omoregie had stated rightly that “the basic indices of a federal
structure of government are the political and economic autonomy of the
integrating units within their legislative sphere of influence as
provided for in the Constitution.”18 Another argument is that the
Federal Government control of the Nigeria Police Force enables it to
use the police power for selfish purposes and in some cases leading to
abuse of the Force.19 It 17 . (2004) 4 NWLR (Part 864) 580 at 592 18 .
Inegedion, NA and Omoregie E, “Federalism in Nigeria: A Re-appraisal,”
Journal of Constitutional and Parliamentary Studies, vol. xxxix Nos
1-4 , January – December, 2005, p 78 19 . Akande J.O., op. cit 11 is
also argued that the Federal Government does not deliberately abuse
the use of the Nigeria Police Force. Very often, the force is used for
security purposes and cases of abuse of police powers are few and are
actionable where they occur. 14. The State Governors who are security
officers of their respective states have no sufficient control of the
Nigeria Police Force, a situation described as one of “responsibility
without power.”20 State Governors are empowered by the Constitution to
serve in the Nigeria Police Council, and give directives to State
Commissioners of Police provided that such directives are lawful and
not for oppressive political and other selfish purposes. It is further
advanced as a rationale for establishment of state police that the
Nigeria Police Force is too large and incapable of coping with the
current challenge of preventing and detecting crimes thereby leading
to high crime rate. The Nigeria Police Force is not large enough to
effectively police the population. Moreover, crime and crime rate are
a function of many other variables such as unemployment, nature of
governance, value system, intelligence level and community
cooperation. To the protagonists, there is a historical justification
for permitting establishment of parallel state police forces as in the
days of regional and native facilities, authority/local police forces
under the 1954 Constitution and Section 105(7) of the 1963
Constitution. History is replete with abuses perpetrated by multiple
police forces, and that resulted in a shift from multiple to single
police force. (See Rotimi: The Police in a Federal System: Nigerian
Experience). 20 . Idowu A.A, Op Cit & Kemi: Rotimi: The Police in a
Federal System: Nigerian Experience. 12 STATE POLICE: THE GLOBAL
ARGUMENT 15. The pull and push debate on centralized or decentralized
structure of policing is not peculiar to Nigeria. It is also a
discourse within the global space with arguments gradually tilting
towards the centralisation of policing functions. The impact of
globalisation, increasing transnational nature of crime and criminal
networks, as well as the huge budgetary demands of policing the
community have combined to justify the argument for the centralization
of policing structure and functions across various jurisdictions in
the world. This drift was hastened by the post 9/11 terror incident in
the United States which clearly exposed the challenge of inter-agency
collaboration among the various policing frameworks. 16. The
experience in the United Kingdom presents a unique case study reputed
to have 43 police forces, the post 9/11 terror incident has produced a
new policing model that is driven by centralisation. This underscored
the establishment of the National Crime Agency (NCA), a centralized,
triple warranted policing agency whose officers are granted the powers
and privileges of a constable, powers of a customs officer, and powers
of an immigration officer.21 The NCA today takes primacy in UK law
enforcement’s response to serious and organised crime and it has
national and international mandates. 21 . National Crime Agency
website http://www.nationalcrimeagency.gov.uk (accessed on 20/5/16).
13 17. The experience of Scotland is indeed, more revolutionary. In
2013, all eight of Scotland’s regional forces were replaced by just
one, police Scotland.22 With new combined personnel of 17,400
officers, national jurisdiction covering 30,000 square miles and
policing mandate over 5.3 million citizens, the new police Scotland is
now the UK’s second-largest force after the Metropolitan Police. The
centralization of police structure in Scotland ensured the merger of
Scotland’s numerous competing Criminal Investigation Departments with
a detective staff profile of 2,000 detectives.23 18. Stephen House,
the Chief Constable of police Scotland was quoted as observing that
‘the new force will bring dramatic, much-needed improvements to
Scottish policing particularly on major, complex cases’ while also
predicting that the Scotland’s single force will be a model for the
“inevitable” mergers of England and Wale’s 43 Forces.24 It is believed
that the success of the Scottish police experiment may embolden the
Home Office to renew the proposal for centralization of police forces
in England and Wales, regardless of the vigorous resistance by English
and Welsh Chief Constables and Local Councils. 19. In the United
States, there is also a gradual drift towards a centralized policing
model. It is on record that eleven days after the September 11, 2001,
terrorist attacks, Pennsylvania Governor Tom Ridge was appointed as
the first 22 . See Badaiki’s middle course argument in The Comet,
Tuesday, August 24, 1999, pp. 24-25 as against his modified argument
in Badaiki, AD, “Centralisation and Control of the Nigeria Police
Force: Revisting the Debate on State Police,” Op. Cit. p. 102. 23 .
Carell, S. Scotland’s New Unified Police Force replaces eight regional
constabularies: Guardian Newspaper, Monday 1 April 2013. 24 . Ibid. 14
director of the office of Homeland Security in the White House to
coordinate a comprehensive national security strategy to safeguard the
country against terrorism and respond to any future attacks.25
Subsequently, the Homeland Security Act was promulgated by Congress in
November 2002, and the Department of Homeland Security formally
established as a stand-alone, cabinet-level department to further
coordinate and unify national homeland security efforts. The Homeland
Security Department became operational from March 1 2003. The
establishment of Department of Homeland Security witnessed the
integration of 22 different Federal Law Enforcement Departments and
agencies into a unified national security agency with national and
international policing mandate. 26 20. Against these global
perspective, the argument for the state police in a country that is
grappling with weak budgetary base (especially at state level of
governance) and deep ethno-religious sensitivity may not present a
credible policing future for the country. The trend is a movement from
multiple police forces to a single centralised police force. It is
less expensive, more unifying, more effective, result oriented and
very useful for crime prevention and detection. I will personally from
my experience as a Former IGP suggest a hybrid of the Dan Madami
Police Committee Report on decentralization of the policing functions
at the FHQ; encouraging community partnership and 25 . See Official
Website of Department of Homeland Security. 26 . See Official Website
of Department of Homeland Security. 15 neighborhood watch as panacea
to internal security management in the country. More importantly, the
police council should be made to function more efficiently through
constant sittings. 21. Antagonists of state police argue that although
Nigeria is a federation, its democracy is not mature enough to allow
states to establish their police forces. It is feared that State
Governors will use their respective police forces for political and
other selfish vendetta. In addition, many State Governments cannot
fund separate police forces of their own because of the enormous
financial resources involved in running the Nigeria Police Force. A
better view is Badaiki’s earlier middle course of waiting for maturity
and not fair maturity of the nation’s democracy before contemplating
constitutional permission to establish state police forces in the
country. The real challenge of the Nigeria Police Force is how best to
re-position it by proper funding, re-orientation, training and uncivil
practices. 22. The constitution creates an obligation of government to
ensure security of life and protection of property. As a part of and
under the control of the executive organ of government, the Nigeria
Police Force is specifically created to perform this governmental
function of maintaining law and order. The constitutional role of the
Nigeria Police Force includes prevention and detection of crimes which
are critical in ensuring the security and welfare of the people. to
achieve this purpose, the command of the Nigeria Police Force is put
under the Inspector-General of Police. In organizing and administering
the force, there 16 should be compliance with an Act of the National
Assembly. Accordingly, the Constitution further provides that the
powers and duties of the force must be as conferred by law. The Police
Act with the police regulations has been identified as the most
prominent and comprehensive legislation which create detailed powers
and duties of the force. Section 4 of the Police Act encapsulates the
duties and functions of the force including the prevention and
detection of crime. Remarkably, it is shown that the Police Act should
be read subject to the Constitution which does not only create it but
also is superior to it. 23. The paper examined the supervisory,
operational, organisational and administrative system of the Nigeria
Police Force. It is shown how, within the constitutional framework,
different structures are created. The significance of these structures
is shown to determine the nature of control and the authorities that
have control over the force. The most overwhelming authority of
control appears to the President who does not only appoint and remove
the Inspector General of Police, but also is the operational head of
the force. Furthermore, he is empowered to determine some of the
membership of the Nigeria Police Council and the Police Service
Commission, whose members cannot but be subservient to their
appointor. 24. Although under the Constitution, the Governors of all
the states, as the members of the Nigeria Police Council and Police
Service Commission, are entitled to make inputs into the
decision-making machinery of these bodies, and can give lawful
directions to Commissioners of police in their respective states, 17
there is the issue of establishment of state police. It is shown that
there are merits and demerits in the arguments for and against the
establishment of such multiple police forces. It is, however, argued
that historical evidence and in view of lack of sufficient maturity by
many political actors, multiple forces in the name of state police
forces parallel to the present federal-controlled Nigeria Police Force
cannot in financial and security terms, be defensible, for they may be
mere instruments of oppression in the hands of some overbearing
Governors. It is recommended that all stakeholders should unite in
properly funding the Nigeria Police Force for adequate equipment,
facilities, motivation, training and re-training in order to rid the
force of corruption and other vices and abuses that are cardinal to
effective intelligence-led policing in the country. 18 Bibliography
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- Thursday, September 19, 2024
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