SULEIMAN ABBA
SULEIMAN ABBA

THE conduct of the 2015 general elections begins in earnest, according to the time-table for the order of the elections released by the Independent National Electoral Commission (INEC), on 14th February, 2015 with the Presidential and National Assembly Elections. Since the take-off of the current democratic dispensation in 1999, the Nigeria Police Force and other security agencies including the Armed Forces of the Federal Republic of Nigeria, have been deployed to participate in the conduct of elections in Nigeria.
I submit that the constitutional and statutory powers and duties of the Nigeria Police Force under Section 214(2)(b) of the 1999 Constitution as amended and Section 4 of the Police Act CAP. P19, Laws of the Federation of Nigeria 2004 as updated, jointly or severally, do not extend to participation or playing of any role by the Nigeria Police Force in the electoral process. Section 214(2)(b) of the 1999 Constitution provides:
(2) Subject to the provisions of this Constitution
(b) The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law;

Section 4 of the Police Act provides:

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The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly 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
I submit that there is no provision in the Electoral Act 2011 as amended which directly charges or gives any role to the Nigeria Police Force to play in the conduct of elections in Nigeria. The only provision in the 1999 Constitution which the Nigeria Police Force, the Presidency and INEC might rely on as cover to justify the participation of the Nigeria Police Force in the conduct of elections in Nigeria is Sections 215(3) and (5) of the Constitution. In that case, the participation of the members of the Nigeria Police Force in the electoral process would be a Presidential Directive. But in a general election in which the President and his political party are partisan contestants, the participation therein under the guise of providing protective security cover for the elections by the Nigeria Police Force under a Presidential Directive to the Inspector-General of the Nigeria Police Force compromises the integrity, credibility, freeness and fairness of the elections. Section 2 15(3) and (5) of the Constitution provides:
(3) The President or such other Minister of the Government of the Federation as he may authorize in that behalf may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary and the Inspector-General of Police shall comply with those directions or cause them to be complied with.
(5) The question whether any, and if so what, directions have been given under this section shall not be inquired into by any court.
I submit that the provision in Section 215(5) of the Constitution ousting the jurisdiction of any court to inquire into the nature of the directions given by the President to the IGP which the lGP must comply with, is a dangerous weapon in the hands of a partisan President who is a candidate in an election. The question might be asked: why the secrecy of the nature of the directions given by the President to the JGP? When Sections 215(3) and (5) are taken together with Sections 215(1) and 2 16(2) of the Constitution, which give the President the powers to appoint and remove the IGP without any constitutional safeguard or check by the National Assembly apart from the President consulting the Nigeria Police Council of which the President himself is Chairman under Section 153 Paragraph 27(a) of Part I of the Third Schedule to the 1999 Constitution, the reason for the Nigeria Police Force being a mere Presidential Guard over the years particularly under civilian administrations would not be farfetched. According to Dambazu at Page 231 of his Criminology and Criminal Justice (2011):
At the apex of the Nigeria Police Force is the Inspector General of Police (IGP), who is an appointee of the Executive or the Presidency He is therefore answerable to the President in all his activities.
This is why opposition parties over the years since the commencement of the current democratic experience have decried the ignoble use to which the Presidency has put the Nigeria Police Force in the conduct of elections in Nigeria.
In the light of the foregoing, and for the integrity of the forthcoming general elections, it has become imperative for lawyers of Constitutional Law to enlighten the Nigeria Police Force, the INEC, the Presidency, the Political Parties and Nigerians generally as to what is the actual constitutional status of the Nigeria Police Force. I  believe that this will free the Nigeria Police Force particularly the lGP who has command of the Force under Section 215(2) of the Constitution and Section 6 of the Police Act, from the stranglehold and apron strings of the Presidency.
I submit that what the Constitution of the Federal Republic of Nigeria 1999 established for Nigeria is a single monolithic police force meant to serve the legal, security and policing needs of all persons and governments in Nigeria irrespective of political affiliations equally, fairly, impartially at one and the same time and forbade in peremptory language the establishment of any other police force anywhere in Nigeria: See Fawehinini v. IG of Police (2002) 8 MjSC I at 16-17 paras G-A; Section 214 of the Constitution.
It should be noted from the onset that the appellation of the Force is “Nigeria” and not “Nigerian” Police Force. The etymological significance of this appellation of the Force is relevant in the context of the appellation of the Nigerian nation itself Section 20) of the Constitution says that Nigeria is one indivisible and indissoluble sovereign State to be known by the name of the Federal Republic of Nigeria. What this means is that notwithstanding section 2(2) of the Constitution which says that Nigeria is a federation consisting of States and a federal capital territory, Nigeria remains one sovereign nation. Thus, the essence of the name “Nigeria” Police Force is to emphasize the fact that the Force is for the entire Nigeria as a sovereign nation and neither for the Federal or State Governments or territories constituting Nigeria. This point is driven home more authoritatively by section 2140) of the Constitution to the intent that:
There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof
The Nigeria Police Force is not established for the Federation or Federal Government or any part thereof or State or State Government. This is why the command of the Force is neither vested in the President of the Federation or Governors of the States but in the Inspector-General of the Nigeria Police Force.
Section 215(2) of the Constitution provides that:
The Nigeria Police Force shall be under the command of the Inspector-General of Police and any contingents of the Nigeria Police Force in a State shall, subject to the authority of the Inspector-General of Police, be under the command of the Commissioner of Police of that State.
See also Section 6 of the Police Act to the same effect:
The Force shall be under the command of the Inspector- General and contingents of the Force stationed in a State shall, subject to the authority of the Inspector-General, be under the command of the Commissioner of that State.
The directions which the President may give to the IGP under section 215(3) of the Constitution must ideally be lawful and not political or even executive directions. That is to say, they must be such directions as are authorized or justifiable and cognizable in law. The directions must have legal backing, otherwise the IGP ought not to. comply with them. In fact, the directions the President may give to the IGP are essentially ones relating to public safety and public order under Section 11(1) and (2) of the Constitution and such other directions that are in tandem with the duties conferred upon them by law. Constitution Lawyers are agreed on the view that these directions relate only to criminal prosecutions, the prerogative of mercy and the maintenance of public safety and public order.
In the sense of being a single national police force meant for the whole country to serve the legal and security needs of all persons and governments in Nigeria, the Nigeria Police Force is in the same class as the appellate courts; the Court of
Appeal and Supreme Court, which though are classified as federal courts are meant to serve the judicial needs of all persons and governments in Nigeria. Just as there is a single appellate court system for Nigeria, so also there is a single police system for Nigeria.
The subject matter of Police and other government security services established by law is contained as Item 45 in the Exclusive Legislative List in Part I of the Second Schedule to the 1999 Constitution. By Sections 4(1), (2), (3) and (7)(a) of the 1999 Constitution, only the National Assembly has the legislative competence and jurisdiction to legislate on any matter in the Exclusive Legislative List, including the Police and other government security services. But the proper status of a single police force like the Nigeria Police Force is that it is neither an agency of the Federal nor State government. The Force is sui generis, as it were, in the constitutional framework of the democratic governance of Nigeria meant to serve Nigeria as a whole including the federal and state governments therein at one and the same time. The Nigeria Police Force cannot by the nature of its constitutional creation and nomenclature as a single police force for the entire country be dubbed a federal agency, notwithstanding the insinuations of Sections 4(3) and 251(1) of the Constitution and Item 45 in the Exclusive Legislative List of the Constitution to that effect.
I am of the humble view, and this is the correct view, as I will demonstrate here and now, that the Nigeria Police Force is not a federal agency. To be a federal agency, the Force should be established by an Act of the National Assembly. But the Nigeria Police Force is not established by an Act of the National Assembly. I am not unmindful of the Police Act of 1943 now contained in the Laws of the Federation of Nigeria 2004 as CAP P19 which purports to create or establish the Nigeria Police Force by Section 3 thereof.
But the truth is that the Constitution does not vest the power to create or establish the Nigeria Police Force in the National Assembly. The Nigeria Police Force is a direct creation and establishment of the Constitution of the Federal Republic of Nigeria under Section 214(1) thereof The Nigerian Constitution is neither for the Federal nor State Government of Nigeria alone but for the entire Nigeria: See Section 1(1) of the Constitution. Nigeria is not the Federal Government of Nigeria located in the federal capital territory in Abuja, nor is Nigeria the States Governments located in the States Capitals. Nigeria is the entire peoples, nationalities and territories comprised within the entire geographical national landmass bordering other national boundaries in the cardinal hemisphere adjoining Nigeria: See Section 3(2) of the Constitution.
Section 214(2)(a) of the Constitution limits the powers of the National Assembly only to making such provisions as to the organization and administration (not the establishment) of the Nigeria Police Force. This position is supported and clarified by Section 153(1)1) of the Constitution which creates the Nigeria Police Council as an executive body in Part 1 of the Third Schedule to the Constitution. Under Paragraph 28(a) thereof; the function of the Nigeria Police Council is restricted to the organization and administration of the Nigeria Police Force and all other matters relating thereto, among others. For an apt elucidation of the point being made here, I reproduce the full plenitude of section 214 of the Constitution and Section 3 of the Police Act. Section 214 of the Constitution provides:
(1) There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof
(2) 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.
Section 3 of the Police Act:
There shall be established for Nigeria a police force to be known as the Nigeria Police Force (in this Act referred to as the “Force”).

Sections 315(1) and (2) of the Constitution provide:

(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be —
(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
(2) The appropriate authority may at any time by order make moc4fIcation in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
To the extent that the Constitution does not give the National Assembly the power to establish the Nigeria Police Force, Section 3 of the Police Act must be construed and modified to bring it in line with Section 214(1) of the Constitution as stipulated by Section 315(1 )(a) of the Constitution to restrict the powers of the National Assembly only to making such provisions as to the organisation and administration of the Police Force. Otherwise, Section 3 of the Police Act would be adjudged to be inconsistent with Section 214(1) of the Constitution and to the extent of that inconsistency, would be void by virtue of Section 1(3) of the Constitution.
Section 4(3) of the Constitution which purports to give the National Assembly the right of exclusivity to legislate on matters in the Exclusive Legislative List which includes the Police provides by itself an exception or a proviso to that right to the result that the right is not absolute. The subsection provides:
The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.
Some of the exceptions created by the Constitution itself to Section 4(3) thereof include Sections 11(1) and (2), 241(2)(b), 215(4) of the 1999 Constitution which respectively provides as follows:
Sections 11(1) and (2) provide:
(I) The National Assembly may make laws for the Federation or any part thereof with respect to the maintenance and securing of public safety and public order and providing, maintaining and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.
(2) Nothing in this section shall preclude a House of Assembly from making laws with respect to the matters referred to in this section, including the provision for maintenance and securing of such supplies and services as may be designated by the National Assembly as essential supplies and services.
Section 214(2)(b) provides:
(2) Subject to the provisions of this Constitution
(b) The members of the Nigeria Police Force shall have such powers and duties as may be conferred upon them by law;
Section 318 of the Constitution defines Law as:
“Law” means a Jaw enacted by the House of Assembly of a State
Section 2 15(4) provides:
(4) Subject to the provisions of this section, the Governor of a State or such Commissioner of the Government of the State as he may authorize in that behalf may give to the Commissioner of Police of that State such lawful directions with respect to the maintenance and securing of public safety and public order within the State as he may consider necessary, and the Commissioner of Police shall comply with those directions or cause them to be complied with.
Provided that before carrying out any such directions under the foregoing provisions of this subsection 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 in that behalf by the President for his directions.
CHALLENGES FOR A SINGLE POLICE FORCE IN A FEDERAL NIGERIA
The establishment, management and administration of a single police force for a federal Nigeria have brought serious challenges to the police system and brought the federalism credentials of the 1999 Constitution of Nigeria into question. The 1999 Constitution of Nigeria in providing for a single police system for Nigeria, which ideally ought to be independent and insulated from the political control of both the federal and State governments, has unwittingly tilted the scales in favour of the federal government against the States. This imbalance in the constitutional provisions relating to the Nigeria Police Force coupled with the misperception by the Police themselves as agents of the federal government, have no doubt affected the impartial or neutral performance of the statutory and constitutional duties of the Police Force and have kindled recent calls for a review of the single police system of Nigeria for establishment of “Community” Police, “State” Police, “Local” Police, etc., as a way of improving the efficiency of the Force. Prof B.O. Nwabueze is however of the view that nothing is inherently wrong or incompatible in a single police force system with federalism but that it depends on how the control of the Force is organized. According to the learned professor of law and Senior Advocate of Nigeria at Page 123 of his Federalism in Nigeria under the Presidential Constitution (2003):
The system of a single police force for the whole country has come under severe attack in recent times. Much of the disenchantment with  the arrangement is due to the human and political factor in its practical working. There is no inherent incompatibility between a single police force and federalism. It all depends on how the control of the force is organized A single police force has the advantage that it exposes the individual to less risk of oppression than one under the autonomous control of his state government This consideration should override all others.