By Afe Babalola SAN
![image](/2021/07/Justice-Ejembi-Eko-1.jpg")
![image](/2021/08/lawpNBA.jpg")
THE executive governor of Katsina State, Bello Masari, recently
called on the residents of the state to take up arms against
bandits and kidnappers; a call clearly supported by some northern
sociocultural groups, including the Arewa Consultative Forum (ACF).
In particularly supporting this move, the ACF, through its national
publicity secretary, reported added that a similar move of self
defence was carried out in the South-West by Chief Sunday Adeyemo
(Sunday Igboho) who rescued Ibarapaland from banditry and the
onslaught of Fulani herdsmen. Similarly, it had earlier been
reported that the executive governors of Benue and Zamfara states,
Governor Samuel Ortom and Governor Bello Matawalle, also called on
the residents of their states to rise in their own defence whenever
being attacked by killer herdsmen.
![image](/2021/07/escrow-service1.jpg")
Security of lives and properties is the primary duty of
government
According to the social contract theory, every government has an
obligation to the governed. In his famous book, The Social
Contract, Rousseau propounded that in the state of nature, humans
were unwarlike and somewhat undeveloped in their reasoning powers
and sense of morality and responsibility. When, however, people
agreed for mutual protection to surrender individual freedom of
action and establish laws and government, they then acquired a
sense of moral and civic obligation. In order to retain its
essentially moral character, government must thus rest on the
consent of the governed, the volonté générale (“general will”).
Therefore, it is generally agreed that the individual has expressly
or tacitly given up his freedom to the government in return for the
protection of that government. As a result, the individuals or
citizens are expected to live harmoniously and in accordance with
the laws of the land while the government provides security of life
and property. This theory pervades all modern societies with
varying degrees of success.
Realising the existence of social contract, Section 14(1) of the
Constitution of the Federal Republic of Nigeria, 1999 provides as
follows: 14.(1) The Federal Republic of Nigeria shall be a State
based on the principles of democracy and social justice. (2) It is
hereby, accordingly, declared that: a) sovereignty belongs to the
people of Nigeria from whom government through this Constitution
derives all its powers and authority; b) the security and welfare
of the people shall be the primary purpose of government: and c)
the participation by the people in their government shall be
ensured in accordance with the provisions of this Constitution
Clearly, from the above, the Nigerian Constitution recognises
that it is the primary function of government to ensure the
security and welfare of its citizens. Certainly, where there is
insecurity, no economic activity can thrive – and will consequently
result to food insecurity which is presently being experienced in
some northern states where farmers cannot go to the farm without
fearing for their lives. The general failure of the government in
fulfilling its constitutional mandate to the people has,
more-often-than-not, resulted in dire consequences, usually with
the lower-class citizens and the bourgeoisie being the most at the
receiving end. Such is the daily reported incidences of banditry,
mindless killings, and kidnappings being perpetrated particularly
in the Northern region.
According to the 2018 – 2019 report of the Strategic Monitor,
security refers both to physical security as well as identity
security, and when a government can successfully provide both
prosperity and security to a citizen, the social contract is
fulfilled. However, if these two factors are not met, then it opens
the door to potentially troubling consequences. Insecurity and
marginalisation are often synonymous, and where marginalised groups
of citizens believe that their security and livelihood are
threatened, they may no longer be inclined to support their
country’s institutions. By implication, therefore, declining faith
in government can negatively affect its legitimacy, weaken its
ability to carry out its functions such as maintaining order,
defending national sovereignty, and managing economic conditions,
and can eventually lead to the deterioration of social cohesion,
justice, and solidarity. A key condition of a functioning social
contract is that citizens partially surrender their individual
rights and adhere to said contract to maintain social order. This
social order allows individuals to obtain prosperity, one that is
possible with others rather than alone. However, with rising
insecurity, it is difficult to comprehend how the existence, or the
maintenance of social order can be sustained.
The right of self defence under the
constitution
The right to self-defence has long been recognised, even in the
Bible. It was recorded in Esther 8:11 that “by these letters the
king permitted the Jews who were in every city to gather together
and protect their lives—to destroy, kill, and annihilate all the
forces of any people or province that would assault them, both
little children and women, and to plunder their possessions.” It
was later recorded in Esther 9:2 and 5 that “the Jews gathered
together in their cities throughout all the provinces of King
Ahasuerus to lay hands on those who sought their harm… Thus, the
Jews defeated all their enemies with the stroke of the sword, with
slaughter and destruction, and did what they pleased with those who
hated them.” Though under different climes and circumstances from
the biblical reference above, the Nigerian Constitution also
recognises the right of a person to self-defence, perhaps in
recognition of the possibility of the failure of government in its
primary duty to ensure the protection of lives and property. The
Constitution absolves any person from criminal liability for the
killing of another in the protection of his life or property.
Section 33 of the Constitution provides thus:
33(1) Every person has a right to life, and no one shall be
deprived intentionally of his life, save in execution of the
sentence of a court in respect of a criminal offence of which he
has been found guilty in Nigeria. (2) A person shall not be
regarded as having been deprived of his life in contravention of
this 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 – (a) for the defence of any person from
unlawful violence or for the defence of property…
Also, the Supreme Court in Aminu v. State (2019) LPELR-48809
(SC), pronounced on the right of a person to defend his life and
property from any unlawful violence in the following words: “A
successful plea of self-defence negatives the existence of an
offence, so that where a person kills another person in defence of
any person from unlawful violence or for the defence of property,
it is excused, and it does not amount to manslaughter under the
Criminal Code or culpable homicide NOT punishable with death under
the Penal Code, see Section 33(2)(a)of the 1999 Constitution (as
amended) that says: “A person shall not be regarded as having been
deprived of his life in contravention of this 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- (a)
For the defence of any person from unlawful violence or for the
defence of property.”
Notwithstanding the above provisions, however, no government
should abdicate its primary duty of protecting its citizens. As a
matter of fact, it has been reported that the sophisticated
weaponry with which the armed bandits perpetrate their heinous acts
has always made a reasonable resistance nearly impossible. Against
this fact, how then are the victims of these attacks supposed to
defend themselves against fully armed assailants? Will the Federal
Government through the office of the Inspector General of Police
grant these communities licences to equally carry sophisticated
firearms in the effective defence of their lives and properties?
Most likely not.
It therefore calls for so much more to be done by the government
in bolstering the security apparatus of each state, and not
entirely entrusting the citizenry to defend themselves against
well-armed bandits with cudgels and sticks. The constant renewal of
the social contract through elections is usually accompanied by
promises of ensuring the safety and security of citizens, and the
improvement in the standard of life. In Nigeria, however, the
unfortunate trend is that, as against the basic tenets of the
social contract theory, elected government officials in Nigeria
have, for several years, failed to show any appreciation for the
fact that in exchange for their votes, the people require the
service of the government, particularly in ensuring security. What
is often of paramount importance to most politicians in Nigeria is
how they will attain political office without any adequate thought
as to how they will perform the duties of that office – such would
account for why politicians will call on the electorate to vote
them into power and, unfortunately, renege on their own end of the
bargain to defend the peoples’ lives and properties; sad
indeed!
AARE AFE BABALOLA, OFR, CON, SAN, FCIArb., FNIALS,
LL.D
By Afe Babalola SAN
THE executive governor of Katsina State, Bello Masari, recently
called on the residents of the state to take up arms against
bandits and kidnappers; a call clearly supported by some northern
sociocultural groups, including the Arewa Consultative Forum (ACF).
In particularly supporting this move, the ACF, through its national
publicity secretary, reported added that a similar move of self
defence was carried out in the South-West by Chief Sunday Adeyemo
(Sunday Igboho) who rescued Ibarapaland from banditry and the
onslaught of Fulani herdsmen. Similarly, it had earlier been
reported that the executive governors of Benue and Zamfara states,
Governor Samuel Ortom and Governor Bello Matawalle, also called on
the residents of their states to rise in their own defence whenever
being attacked by killer herdsmen.
Security of lives and properties is the primary duty of
government
According to the social contract theory, every government has an
obligation to the governed. In his famous book, The Social
Contract, Rousseau propounded that in the state of nature, humans
were unwarlike and somewhat undeveloped in their reasoning powers
and sense of morality and responsibility. When, however, people
agreed for mutual protection to surrender individual freedom of
action and establish laws and government, they then acquired a
sense of moral and civic obligation. In order to retain its
essentially moral character, government must thus rest on the
consent of the governed, the volonté générale (“general will”).
Therefore, it is generally agreed that the individual has expressly
or tacitly given up his freedom to the government in return for the
protection of that government. As a result, the individuals or
citizens are expected to live harmoniously and in accordance with
the laws of the land while the government provides security of life
and property. This theory pervades all modern societies with
varying degrees of success.
Realising the existence of social contract, Section 14(1) of the
Constitution of the Federal Republic of Nigeria, 1999 provides as
follows: 14.(1) The Federal Republic of Nigeria shall be a State
based on the principles of democracy and social justice. (2) It is
hereby, accordingly, declared that: a) sovereignty belongs to the
people of Nigeria from whom government through this Constitution
derives all its powers and authority; b) the security and welfare
of the people shall be the primary purpose of government: and c)
the participation by the people in their government shall be
ensured in accordance with the provisions of this Constitution
Clearly, from the above, the Nigerian Constitution recognises
that it is the primary function of government to ensure the
security and welfare of its citizens. Certainly, where there is
insecurity, no economic activity can thrive – and will consequently
result to food insecurity which is presently being experienced in
some northern states where farmers cannot go to the farm without
fearing for their lives. The general failure of the government in
fulfilling its constitutional mandate to the people has,
more-often-than-not, resulted in dire consequences, usually with
the lower-class citizens and the bourgeoisie being the most at the
receiving end. Such is the daily reported incidences of banditry,
mindless killings, and kidnappings being perpetrated particularly
in the Northern region.
According to the 2018 – 2019 report of the Strategic Monitor,
security refers both to physical security as well as identity
security, and when a government can successfully provide both
prosperity and security to a citizen, the social contract is
fulfilled. However, if these two factors are not met, then it opens
the door to potentially troubling consequences. Insecurity and
marginalisation are often synonymous, and where marginalised groups
of citizens believe that their security and livelihood are
threatened, they may no longer be inclined to support their
country’s institutions. By implication, therefore, declining faith
in government can negatively affect its legitimacy, weaken its
ability to carry out its functions such as maintaining order,
defending national sovereignty, and managing economic conditions,
and can eventually lead to the deterioration of social cohesion,
justice, and solidarity. A key condition of a functioning social
contract is that citizens partially surrender their individual
rights and adhere to said contract to maintain social order. This
social order allows individuals to obtain prosperity, one that is
possible with others rather than alone. However, with rising
insecurity, it is difficult to comprehend how the existence, or the
maintenance of social order can be sustained.
The right of self defence under the
constitution
The right to self-defence has long been recognised, even in the
Bible. It was recorded in Esther 8:11 that “by these letters the
king permitted the Jews who were in every city to gather together
and protect their lives—to destroy, kill, and annihilate all the
forces of any people or province that would assault them, both
little children and women, and to plunder their possessions.” It
was later recorded in Esther 9:2 and 5 that “the Jews gathered
together in their cities throughout all the provinces of King
Ahasuerus to lay hands on those who sought their harm… Thus, the
Jews defeated all their enemies with the stroke of the sword, with
slaughter and destruction, and did what they pleased with those who
hated them.” Though under different climes and circumstances from
the biblical reference above, the Nigerian Constitution also
recognises the right of a person to self-defence, perhaps in
recognition of the possibility of the failure of government in its
primary duty to ensure the protection of lives and property. The
Constitution absolves any person from criminal liability for the
killing of another in the protection of his life or property.
Section 33 of the Constitution provides thus:
33(1) Every person has a right to life, and no one shall be
deprived intentionally of his life, save in execution of the
sentence of a court in respect of a criminal offence of which he
has been found guilty in Nigeria. (2) A person shall not be
regarded as having been deprived of his life in contravention of
this 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 – (a) for the defence of any person from
unlawful violence or for the defence of property…
Also, the Supreme Court in Aminu v. State (2019) LPELR-48809
(SC), pronounced on the right of a person to defend his life and
property from any unlawful violence in the following words: “A
successful plea of self-defence negatives the existence of an
offence, so that where a person kills another person in defence of
any person from unlawful violence or for the defence of property,
it is excused, and it does not amount to manslaughter under the
Criminal Code or culpable homicide NOT punishable with death under
the Penal Code, see Section 33(2)(a)of the 1999 Constitution (as
amended) that says: “A person shall not be regarded as having been
deprived of his life in contravention of this 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- (a)
For the defence of any person from unlawful violence or for the
defence of property.”
Notwithstanding the above provisions, however, no government
should abdicate its primary duty of protecting its citizens. As a
matter of fact, it has been reported that the sophisticated
weaponry with which the armed bandits perpetrate their heinous acts
has always made a reasonable resistance nearly impossible. Against
this fact, how then are the victims of these attacks supposed to
defend themselves against fully armed assailants? Will the Federal
Government through the office of the Inspector General of Police
grant these communities licences to equally carry sophisticated
firearms in the effective defence of their lives and properties?
Most likely not.
It therefore calls for so much more to be done by the government
in bolstering the security apparatus of each state, and not
entirely entrusting the citizenry to defend themselves against
well-armed bandits with cudgels and sticks. The constant renewal of
the social contract through elections is usually accompanied by
promises of ensuring the safety and security of citizens, and the
improvement in the standard of life. In Nigeria, however, the
unfortunate trend is that, as against the basic tenets of the
social contract theory, elected government officials in Nigeria
have, for several years, failed to show any appreciation for the
fact that in exchange for their votes, the people require the
service of the government, particularly in ensuring security. What
is often of paramount importance to most politicians in Nigeria is
how they will attain political office without any adequate thought
as to how they will perform the duties of that office – such would
account for why politicians will call on the electorate to vote
them into power and, unfortunately, renege on their own end of the
bargain to defend the peoples’ lives and properties; sad
indeed!
AARE AFE BABALOLA, OFR, CON, SAN, FCIArb., FNIALS,
LL.D