Restructuring what? State police

The idea of a ‘State Police’ in which each state will establish, keep and run its own police, independent of or in addition to the Nigeria Police is one of the major issues in the debate about restructuring Nigeria. But this also only illustrates the sort of romanticism of other societies associated with this whole ‘restructuring’ debate.

If we define ‘state police’ loosely as any law enforcement agency established by a state government and which performs policing functions within the jurisdiction of that state, then, we will probably have the conceptual clarity we need. The key criteria for state police are that the agency is established, operated and paid for by a state government, that the said agency performs law enforcement functions, and that its activities be limited to that state alone.

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It really doesn’t matter what name the agency is called or whether the agency performs all or only some policing functions. In this sense, all state-level agencies like the Lagos State Traffic Management Authority (LASTMA), Kano State Road Traffic Authority (KAROTA) and Kaduna State Traffic Law Enforcement Agency (KASTELA) are versions of state police, if not in name, then in fact, since traffic law enforcement is a core policing function the world over.

This is true, not only of such organisations as LASTMA or KASTELA, but also of all forms of state-sanctioned vigilante organisations across the country. They all perform one or other policing functions at some limited level, and crucially, they have all evolved within the present Nigerian federal system without any fuss or fanfare about ‘restructuring’. If anyone wanted a ‘state police’, they need only to strengthen and expand the scope of these prototypes.

Yes, the current 1999 Constitution has given the responsibility for policing to the federal government exclusively. But if the same constitution is not against LASTMA or KATSELA, it can hardly have any reason to be against an upgrade of these agencies to include functions for prevention, investigation and prosecution of certain kinds of crimes at the state level with, of course, certain limitations.

But the real point here is that the existing Nigerian federal structure is flexible and resilient enough to accommodate institutional innovations genuinely designed to strengthen the federation without unnecessarily heating up the polity every now and then in the name of ‘restructuring’ the country. This, for example, is what the short history of Amotekun amply demonstrates.

When the Western Nigeria Security Network (WNSN), otherwise known as Operation Amotekun, became official in January last year, it was hailed in certain sections of the press as an exertion of state powers against an overreaching federal government. It probably was that. But for at least three reasons, it is perhaps more useful to regard Amotekun as an important step in Nigeria’s political and constitutional development.

Amotekun raised the very serious question of whether a state government has the power to establish an armed outfit in the name of providing security at the state level anywhere in Nigeria. The straightforward answer to that question is that our current constitution does not allow for such power at the state level, never mind that Amotekun is not even a state police outfit, but a regional one.

But instead of engaging the states of the southwest in an epic legal and constitutional battle at the courts of law, or of public opinion, the federal government wisely decided to resolve the issue politically by allowing Amotekun to exist provided it is enshrined in the laws of each state. Therefore, as a state or regional police outfit, Amotekun remains unconstitutional in theory, but constitutional in practice, at least to the extent that its constitutionality has not been questioned in court by the federal government whose powers it has clearly appropriated.

In other words, Amotekun shows that not all constitutional questions in a federation need to be resolved legally or constitutionally. Many can be resolved politically, as they often are. And those questions resolved politically could become just as much constitutional over time, by the force of historical convention, if not of law, which is why some countries have no ‘written constitutions’ at all. That Amotekun is now behaving like an ethnic militia is rather very unfortunate, but that is beside the point.

Secondly, that the federal government opted for political resolution may yet become a landmark political achievement of the Buhari administration, not only because it avoided unnecessary political fights between various levels of government as witnessed severally under Obasanjo (not necessarily a bad thing), but also because it provides a template for deepening Nigeria’s constitutional development in areas other than policing.

Third, the political resolution of the kind of constitutional crisis threatened by Amotekun also shows, yet again, that the real problem with our federal system is not so much the structural foundations of the union themselves, but often deliberate political impatience to simply discard what has either not been tried or tried well and long enough, as we did with tragic consequences during the First Republic.

In sum, what we can now call the Amotekun Model of Constitutional Development, that is, a framework in which states actively but peaceably expand their powers with active or passive acquiescence of the federal government can work for other areas of perceived power imbalances between the states and the central government. But appreciating that for Nigeria requires first, having a grasp of federalism beyond frequently cited textbook knowledge.