By Fredrick Awkadigwe
Section 214(1) of the Con-stitution of the Federal Republic of Nigeria, CFRN, provides that no other police force, apart from the Nigeria Police Force (NPF), shall be established for the federation or any part thereof. The NPF, according to section 214(2)(a) of the CFRN, shall be organised and administered in accordance with such provisions as may be prescribed by an Act of the federal legislature.
This appearance of helplessness of states to regulate the defence of their people in the likely event that the NPF derelicts in their humongous policing functions, is obviously at variance to section 4(2&7) of the CFRN that confers on the federal and state legislatures equal constitutional powers to make laws for peace, order and good government of their territories.
The definition of Police as first proposed by the American sociologist, Egon Bittner, asserts that the common feature among all the different agencies engaged in policing is the legal competence to enforce coercive, non-negotiable measures to resolve dangerous and problematic situations in the society. According to Reiner, the term ‘police’ is primarily used to denote a body of people patrolling public spaces in blue uniforms, with, inter alia, a broad mandate of crime control.
To Crawford, if ‘Police’ is a term specific to a group of individuals charged with special powers to reduce crime and disorder in the society, then ‘Policing’ is a much wider concept and involves many other agencies.
What is understood as the state-legislated police agency today is only one example of policing. With the express provisions of section 33(2)(a) of the CFRN, Item 45 of the Second Schedule to the CFRN, and the residual constitutional legislative competences of state legislatures in section 4(7)(a) of the CFRN, this work seeks to ascertain if the state legislatures, in defence of life and property from unlawful violence within their states, have the constitutional legislative competence, to organise and administer state policing.
State legislatures and the concept of private defence
Section 214(1) of the CFRN establishes the NPF subjecting it to the CFRN. If the CFRN has to be read as a whole, then the provision of section 214(1) of the CFRN does not immediately end the inquiry on states’ constitutional competences to organise or administer policing capabilities within the states.
Section 33(2)(a) of the CFRN provides that a person shall not be regarded as having been deprived of his life in contravention of the section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by ‘law’, of such force as is reasonably necessary for the defence of any person from unlawful violence or for the defence of property.
Which one of the federal or state legislatures have been empowered by the CFRN to make the ‘law’ that shall permit a private person to use reasonable force ‘to such extent and in such circumstances’ to kill another person in defence of life or property?
If the statutory regulation of private persons’ use of reasonable force to defend life or property is exclusive to state legislatures, as shall be shown soon, then only the State legislatures can regulate that use. The regulation of the concept of private persons’ use of reasonable force to defend life or property embedded in section 33(2)(a) of the CFRN, is located in the concept of immutable constitutional distribution of legislative powers and matters between the federal and state legislatures.
Since unlawful violence to life or property constitutes a tort, and the constitutional legislative matters of tort are not enumerated matters in Part I of the Second Schedule to the CFRN, then the regulation is not within the constitutional legislative competences of the federal legislature. The ‘law’ as used in the context of section 33(2)(a) of the CFRN, as opposed to the contexts in section 33(2)(b&c) of the CFRN, is state law.
Section 33(2)(a) of the CFRN therefore permits state legislatures, through section 4(7)(c) of the CFRN, to legislate such extent and in such circumstances which a person may take the life of another person with such force as is reasonably necessary for the defence of any person from unlawful violence or for the defence of property.
The permission of states’ competence in section 33(2)(a) of the CFRN gives rise to the concept of private person defence; that imbues state legislatures with the constitutional legislative competence, not only to stipulate defence conditions under the section, but also the competence to establish and regulate bodies that may use such defence conditions for the defence of any life or property within the states.
One thing stands out in section 33(2)(a) of the CFRN: the federal legislature may enact a law regarding private persons’ defence of life or property from unlawful violence only for the FCT, and not for the federation or any part thereof. By stipulating the substantive regulatory functions of state legislatures in section 33(2)(a) of the CFRN, the section has created a constitutional framework upon which the state legislatures can anchor an incidental power to establish a statutory body with a constitutional mandate for the sole realisation of the full objects of that section.
It is not within the constitutional legislative competence of the federal legislature to license civilians who are not members of the NPF to use firearms for defence of life or property, or even for hunting, within states; that is the constitutional prerogative of state legislatures. Under sections 4(2) & 214 of the CFRN, the Federal Government shall defend or protect lives or properties in the federation or any part thereof using the NPF, but when it comes to the issue of use of reasonable force within the states to defend life or property by persons other than members of the NPF, and for the issue of licensing of civilians to use firearms or any other instrument of defence for such reasonable force of defence, only the state legislatures are constitutionally empowered to make laws on the issues by virtue of sections 4(7)(c) & 33(2)(a) of the CFRN.
Nevertheless, where a state law has not forbidden the civilian possession or use of a particular instrument of defence, and has not stipulated, under the weight of punishment, that the civilian use of a particular instrument of defence shall be licenced before possession and use for the purpose, then, upon the narrow constitutional permission of common law in Nigeria, the mere bona fide possession or use by a civilian of such instruments of defence does not constitute an offence in that state.
However, where a state law has displaced the applicable common law within section 33(2)(a) of the CFRN, by forbidding civilian possession or use of a particular instrument of defence, and stipulating, under the weight of punishment, that the civilian use of a particular instrument of defence shall be licenced before possession or use for the discussed purpose, the mere bona fide possession or use by a civilian of such instruments of defence constitutes an offence in that state.
A civilian’s movement of an instrument of defence from a state where the instrument is licenced to another state that forbids and has not licensed the particular instrument, constitutes an offence in the latter state notwithstanding the prior licensing in first mentioned state, as state powers are not exerted across state lines.
Regulation of private security
Outside the already discussed states’ exclusive regulation of private defence in section 33(2)(a) of the CFRN, there is yet the residual regulation of security services in section 4(7)(a) of the CFRN and Item 45 of Part I of the Second Schedule to the CFRN.
Section 4(7)(a) provides that stateslegislatures ‘shall have power to make laws’ for the states with respect to any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to the CFRN. Item 45 provides that the federal legislature shall make ordinary laws for ‘Police and other government security services established by law’. The enumeration of ‘Police and other government security services established by law’ in Item 45 simply implies that matters of non-government security services ie private security services, are not enumerated matters.
The constitutional legislative competence to legislate on private security services, is thus dispatched to state legislatures. The import is that, in addition to the constitutional legislative competences of state legislatures to statutorily establish and regulate state defence apparatuses under section 33(2)(a) of the CFRN, state legislatures also have the residual constitutional legislative competences to make laws regulating the certification of private security services. Thus, the vetting and approving of the registration of private detective schools and private investigative outfits, arrogated to the NPF in section 4(i) of the Nigerian Police Act 2020, is void, as only state legislatures have the residual constitutional legislative matter for the regulation of non-government or private security services for their respective states.
Preemption of State Police Powers in Section 33(2)(a) of the CFRN
It is important to know if the federal legislature’s exclusive authorisation of the President and the Inspector- General of Police to be the only authorities that may grant firearm license to private persons in the states for the purpose of defence of life or property under section 33(2)(a) of the CFRN, is constitutional.
States’ regulation of the concept of private persons defence under section 33(2)(a) of the CFRN is a specific provision within the generalities of policing. While the NPF is exclusively in charge of the general policing of the federation or any part thereof under sections 4(4)(b) & 214 of the CFRN, state bodies or defenders are exclusively in charge of the specific policing activities involving the defence of life and property within a state by persons that are not members of the NPF.
The Latin word for that is specialibus derogant generalia ie special things derogate from general things. This rule of interpretation has been applied by the Nigerian Supreme Court in so many cases. The civilian defence of life or property against unlawful arms violence within the states under the exclusive competence of state legislatures requires firearms.
The constitutional legislative competence to legislate on or regulate arms, ammunition and explosives is covered by section 4(2&3) of the CFRN and Item 2 of Part I of the Second Schedule to the CFRN. Firearms and licence to firearms are regulated by the Firearms Control Act Cap F28 Laws of the Federation of Nigeria, 2004.
The Act provides that no person shall have in his possession or under his control any firearm or ammunition, except such person has a licence from the President or the Inspector General of Police (IGP). There is no provision in the Firearms Act on how states may equip or arm state defence apparatuses established or licensed under sections 4(7)(c) & 33(2)(a) of the CFRN, or for the arms licencing of private security persons under state laws made pursuant to section 4(7)(a) and Item 45 of the CFRN.
This is a significant omission in the Firearms Act, particularly in view of Item 2 of the CFRN. Notwithstanding this omission, the immunity clause in section 308 of the CFRN for state governors and their deputies is broad enough to cover the governor or deputy governor of a state that procures firearms for their state defence of life and property.
Even if it is contended that matters of arms and ammunition are enumerated matters and therefore are under the exclusive regulation of the federal legislature for the federation or any part thereof, yet it must be appreciated and understood that the matter of use of firearms, by persons other than members of the NPF, as a reasonable force for the defence of life or property under sections 4(7)(c) & 33(2)(a) of the CFRN, is an incidental matter to the substantive matter of the states’ regulation of civilian defence of life and property; and not an incidental matter to the substantive matter of the comprehensive federal regulation of firearms; accesoruim non-ducit sed sequitus suum principale, meaning that that which is incidental does not lead, but follows its principal.
Federal legislature cannot therefore preempt states’ regulation of firearms used for private persons defence. It appears that the state legislatures under section 33(2)(a) of the CFRN have the constitutional legislative competence to legislate on the criminal procedures for intrusion; without the intruder being handed over to the NPF as seen with the registered private security services and natural persons.
Conclusion
The age-long rhetoric that the CFRN does not allow for state policing is a farcical pretention that has no origin in the 1999 CFRN. It is a drab joke repeatedly told by unitarian sophists to continue reveling in mechanistic control of the federal might over and above constitutional distribution of legislative competences. There is a constitutional limit to what the state defence apparatuses or state defenders, as the case may be, can do under section 33(2)(a) of the CFRN.
State defenders are not full police officers; their actions are strictly limited to the use of reasonable force to defend life or property, and the incidental powers, within the state laws.
Section 33(2)(a) of the CFRN empowers the somnolent states not only to regulate the defence of armed criminalities within the states, but also the defence of properties, including the constitutional properties of the states.
If these constitutional state defence has been in place in Rivers state, the federal government would have taught twice before invading the government house of that state on March 18, 2025. The governors and their deputies must creatively utilize their constitutional immunities to defend their states’ exclusive constitutional powers over defence of life and property within their territories from unlawful violence. But who will bell the cat?
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