Nigerian Law Protects The Right To Self Defence; Communities Have A Duty To Exercise It

By Chidi Anselm Odinkalu

In the face of the calculated and practiced indifference of the
regime of Major-General Muhammadu Buhari (Retired) to the human
carnage currently on-going in Nigeria, a debate has ensued about
the legitimacy and practicability of community self defence as a
counterpoise strategy. The mere fact that these questions arise is
proof positive that Nigeria currently suffers a squalid anomaly.
Communities should not be seeking to defend themselves if there is
capable government. When, therefore, government proves incapable or
unwilling to protect everyone equally, communities must exercise a
duty of collective self-defence. The alternative is to suffer
voluntary liquidation.

In the first six months of 2021, over
6,000^[1] people were reported
killed in atrocity violence across Nigeria. As bad as these numbers
are, the Sultan of Sokoto, no less, has pointed out that the scale
of the killings in Nigeria is grossly
under-reported^[2]. Rather than abate, the
massacres appear to be intensifying in the second half of the year.
In the week after the lavish
wedding^[3] of General Buhari’s son,
Yusuf, in Kano the penultimate week of August, 2021, Plateau State
in north-central Nigeria has been overtaken by atrocity killings to
the point where hospitals and mortuaries have become overwhelmed^[4]
by the scale of the human tragedy.

The response of General Buhari to this orgy of atrocity killings
has been a cynically complicit and practiced silence.

Routinely, General Buhari’s spokesmen have sought to trifle with
the scale of the tragedy or relish it. In the aftermath of the
tragically humilating attack by terrorists on the Nigerian Defence
Academy (NDA), which killed at least two military officers and left
another seriously injured (not to mention the abducted),
presidential communications hitman, Garba Shehu, flippantly sniffed
that the attack may have been politically motivated^[5]. Having failed^[6]
in December 2020 to persuade Nigerians to be grateful for
exponential growth in insecurity in the country, presidential
adviser, Femi Adesina, found in the terror attack on the NDA his
moment to brand Nigerians “ungrateful”^[7]
for being unwilling any longer to credit a president who never for
a moment took seriously his oath to protect everyone in Nigeria
equally.

Confronted with the reality of a government led by a president
who cannot be bothered to show he cares about the mass cull of
fellow humans and citizens, the governor of General Buhari’s home
state, Katsina, Aminu Bello Masari, has emerged as an unlikely
leader in the advocacy to popularize self-defence^[8]
as an effective response to this Nigerian crisis of insecurity,
repeatedly exhorting communities to buy guns, organize and defend
themselves. In this advocacy, the Governor has high profile fellow
travelers, such as Defence Minister, Bashir
Magashi^[9], himself also a retired
army General; and the Plateau State House of Assembly^[10]. The Nigerian State is
itself not neutral on this, having supported and invested in the
Civilian Joint Task Force, CJTF^[11], since 2013 to assist
in the fight against the Boko Haram insurgency in the
north-east.

This high profile advocacy for self-defence raises questions
both legal and practical. Let’s begin with the legal: does
self-defence have any basis in law? The short answer to this is
that in Nigeria, self-defence is indeed a constitutional right.
Under section 14(2)(b) of Nigeria’s 1999
Constitution^[12], “the security and
welfare of the people shall be the primary purpose of government.”
Accordingly, section 17(2)(b) of the same constitution requires
that “the sanctity of the human person shall be recognized” and to
reinforce these, section 33(2)(a) makes self defence lawful when
undertaken in “defence of any person from unlawful violence or for
the defence of property.”

The question may be asked whether this right of self defence in
Nigerian law is available to groups or communities. The short
answer is yes. The basis in law for this assertion exists in
Article 20 of the African Charter on Human
and Peoples’ Rights^[13], which provides that
“[A]ll peoples shall have the right to existence.” “Peoples” in
this context are communities smaller than a state or country. It
also implies, of course, that when this right to existence is
endangered, the affected communities have the right to defend
themselves. Thus, the Charter equally guarantees simultaneously,
“the unquestionable and inalienable right to self-determination.”
Article 23(1) of the same Charter additionally creates a right to
“national and international peace and security.” All these rights
exist in Nigerian law under the African Charter on Human and
Peoples’ Rights (Ratification and Enforcement) Act of 1983.

Even if these legal provisions did not exist, communities
endangered by the kind of ongoing carnage in Nigeria would be
justified in morality to exercise legitimate self defence under
doctrine that the wellbeing of the people is
the supreme law^[14]. In the face of this
kind of breakdown in the will and capacity of the state to protect
the people and their communities, law abiding citizens have a duty
to organize to protect themselves until the state can restore its
capacity to protect them or show that it is interested in doing
so.

This raises practical questions as to whether and how citizens
can organize to defend themselves. Nigerian law, it should be
pointed out, does not prohibit the bow and poisoned arrow. Also,
while firearms regulation and the Nigerian Police Force and armed
services fall within the exclusive legal competence of the federal
government, Nigeria’s constitution does not allocate “policing”
epistemically or public safety and security to the federal
government. Citizens who are endangered must be trusted to make
arrangements as to how to organize to procure what they need to
secure their communities. It cannot be that citizens in Borno can
be permitted to defend themselves while those in the Plateau or
Southern Kaduna are disabled from doing so. Such locational
discrimination is explicitly prohibited by section 42(1)(a) of the
constitution. Whether a person or community lives or is allowed to
be liquidated cannot depend on the part of the country in which
they are located or how different they are from the favoured
kinsmen of the president.

There is only one practical limitation to this legal and
doctrinal position: it is that self-defence in national law is a
shield and not a sword. It exists to protect self and community,
not to attack others in order to extinguish them. The point
essentially must be that when government willfully abdicates its
constitutional role to protect its people, citizens have a
legitimate duty in law and morality to ensure the continuity of
human life. That duty can only be discharged by recognizing and
defending the right to self-defence as a prerogative of Nigerian
communities under attack all over the country while the president
watches with approving silence.

Odinkalu, co-convenor of
Nigeria Mourns, writes in his individual
capacity.

By Chidi Anselm Odinkalu

In the face of the calculated and practiced indifference of the
regime of Major-General Muhammadu Buhari (Retired) to the human
carnage currently on-going in Nigeria, a debate has ensued about
the legitimacy and practicability of community self defence as a
counterpoise strategy. The mere fact that these questions arise is
proof positive that Nigeria currently suffers a squalid anomaly.
Communities should not be seeking to defend themselves if there is
capable government. When, therefore, government proves incapable or
unwilling to protect everyone equally, communities must exercise a
duty of collective self-defence. The alternative is to suffer
voluntary liquidation.

In the first six months of 2021, over
6,000^[1] people were reported
killed in atrocity violence across Nigeria. As bad as these numbers
are, the Sultan of Sokoto, no less, has pointed out that the scale
of the killings in Nigeria is grossly
under-reported^[2]. Rather than abate, the
massacres appear to be intensifying in the second half of the year.
In the week after the lavish
wedding^[3] of General Buhari’s son,
Yusuf, in Kano the penultimate week of August, 2021, Plateau State
in north-central Nigeria has been overtaken by atrocity killings to
the point where hospitals and mortuaries have become overwhelmed^[4]
by the scale of the human tragedy.

The response of General Buhari to this orgy of atrocity killings
has been a cynically complicit and practiced silence.

Routinely, General Buhari’s spokesmen have sought to trifle with
the scale of the tragedy or relish it. In the aftermath of the
tragically humilating attack by terrorists on the Nigerian Defence
Academy (NDA), which killed at least two military officers and left
another seriously injured (not to mention the abducted),
presidential communications hitman, Garba Shehu, flippantly sniffed
that the attack may have been politically motivated^[5]. Having failed^[6]
in December 2020 to persuade Nigerians to be grateful for
exponential growth in insecurity in the country, presidential
adviser, Femi Adesina, found in the terror attack on the NDA his
moment to brand Nigerians “ungrateful”^[7]
for being unwilling any longer to credit a president who never for
a moment took seriously his oath to protect everyone in Nigeria
equally.

Confronted with the reality of a government led by a president
who cannot be bothered to show he cares about the mass cull of
fellow humans and citizens, the governor of General Buhari’s home
state, Katsina, Aminu Bello Masari, has emerged as an unlikely
leader in the advocacy to popularize self-defence^[8]
as an effective response to this Nigerian crisis of insecurity,
repeatedly exhorting communities to buy guns, organize and defend
themselves. In this advocacy, the Governor has high profile fellow
travelers, such as Defence Minister, Bashir
Magashi^[9], himself also a retired
army General; and the Plateau State House of Assembly^[10]. The Nigerian State is
itself not neutral on this, having supported and invested in the
Civilian Joint Task Force, CJTF^[11], since 2013 to assist
in the fight against the Boko Haram insurgency in the
north-east.

This high profile advocacy for self-defence raises questions
both legal and practical. Let’s begin with the legal: does
self-defence have any basis in law? The short answer to this is
that in Nigeria, self-defence is indeed a constitutional right.
Under section 14(2)(b) of Nigeria’s 1999
Constitution^[12], “the security and
welfare of the people shall be the primary purpose of government.”
Accordingly, section 17(2)(b) of the same constitution requires
that “the sanctity of the human person shall be recognized” and to
reinforce these, section 33(2)(a) makes self defence lawful when
undertaken in “defence of any person from unlawful violence or for
the defence of property.”

The question may be asked whether this right of self defence in
Nigerian law is available to groups or communities. The short
answer is yes. The basis in law for this assertion exists in
Article 20 of the African Charter on Human
and Peoples’ Rights^[13], which provides that
“[A]ll peoples shall have the right to existence.” “Peoples” in
this context are communities smaller than a state or country. It
also implies, of course, that when this right to existence is
endangered, the affected communities have the right to defend
themselves. Thus, the Charter equally guarantees simultaneously,
“the unquestionable and inalienable right to self-determination.”
Article 23(1) of the same Charter additionally creates a right to
“national and international peace and security.” All these rights
exist in Nigerian law under the African Charter on Human and
Peoples’ Rights (Ratification and Enforcement) Act of 1983.

Even if these legal provisions did not exist, communities
endangered by the kind of ongoing carnage in Nigeria would be
justified in morality to exercise legitimate self defence under
doctrine that the wellbeing of the people is
the supreme law^[14]. In the face of this
kind of breakdown in the will and capacity of the state to protect
the people and their communities, law abiding citizens have a duty
to organize to protect themselves until the state can restore its
capacity to protect them or show that it is interested in doing
so.

This raises practical questions as to whether and how citizens
can organize to defend themselves. Nigerian law, it should be
pointed out, does not prohibit the bow and poisoned arrow. Also,
while firearms regulation and the Nigerian Police Force and armed
services fall within the exclusive legal competence of the federal
government, Nigeria’s constitution does not allocate “policing”
epistemically or public safety and security to the federal
government. Citizens who are endangered must be trusted to make
arrangements as to how to organize to procure what they need to
secure their communities. It cannot be that citizens in Borno can
be permitted to defend themselves while those in the Plateau or
Southern Kaduna are disabled from doing so. Such locational
discrimination is explicitly prohibited by section 42(1)(a) of the
constitution. Whether a person or community lives or is allowed to
be liquidated cannot depend on the part of the country in which
they are located or how different they are from the favoured
kinsmen of the president.

There is only one practical limitation to this legal and
doctrinal position: it is that self-defence in national law is a
shield and not a sword. It exists to protect self and community,
not to attack others in order to extinguish them. The point
essentially must be that when government willfully abdicates its
constitutional role to protect its people, citizens have a
legitimate duty in law and morality to ensure the continuity of
human life. That duty can only be discharged by recognizing and
defending the right to self-defence as a prerogative of Nigerian
communities under attack all over the country while the president
watches with approving silence.

Odinkalu, co-convenor of
Nigeria Mourns, writes in his individual
capacity.