By Bulus Y. Atsen, Esq.

Nigeria’s new Minister of Defence is new in title, not in terrain. He assumes office already fluent in the system he has been asked to reform. That familiarity is both an advantage and a burden. The country will measure him not by intention, but by whether he can change outcomes long assumed to be fixed.

Nigeria’s security crisis is no longer defined simply by guns, checkpoints or uniforms. It is defined by trust and by its erosion. What the country now confronts is violence that has moved beyond the language of insurgency or conventional crime. Carl von Clausewitz observed that war is a continuation of politics by other means. In Nigeria, insecurity has begun to resemble governance by violence. Armed groups tax communities, control territory, negotiate ransoms and decide movement. The Defence Minister is therefore not confronting a single enemy, but a broken social contract: the strained relationship between the state and the people it exists to protect.

Nigeria’s security architecture was inherited rather than designed, with a measured philosophical evolution away from its origin. From the colonial era through independence, it was built for a centralised state facing conventional threats. The 1963 Constitution reflected this assumption, placing security within a federal framework that presumed cohesion and limited internal fragmentation. The 1979 Constitution, shaped by military rule, reinforced central control over the armed forces, reflecting fears of secession and disorder rather than contemporary dispersed internal threats.

By the 1999 Constitution, Nigeria recommitted to democracy but retained much of the same security logic. Section 14(2)(b) declares that the security and welfare of the people shall be the primary purpose of government. Yet practice has drifted from promise. The constitutional focus on national security has not been matched with equal attention to community trust, local intelligence and civilian cooperation as pillars of effective defence.

Nigeria’s challenge is not merely that the enemy is within, but that force has been applied without resolving the conditions that sustain violence. Sun Tzu warned that the supreme art of war is to subdue the enemy without fighting. Nigeria has fought extensively, yet the underlying drivers of conflict remain. Operations succeed strategically, but often fail tactically, revealing a strategic defect. Intelligence failure at the implementation level, weak local trust and unresolved grievances continue to regenerate violence.

Recent data support this diagnosis. The Nigerian Bureau of Statistics Crime Experience and Security Perception Report 2024 indicates that a significant proportion of households experienced at least one form of crime within the reporting period, while public confidence in security agencies remained low. The report also notes that fear of crime is widespread, even among those not directly victimised. This perception gap is as damaging as the violence itself.

Banditry illustrates the problem. It is often treated as a crime in isolation. It is not. It is a method. It functions as a cover for deeper criminal economies: illegal mining, arms trafficking, kidnapping markets, cross-border smuggling and organised extortion. A response focused only on armed confrontation addresses symptoms while leaving structures intact.

Sun Tzu also warned that knowing the enemy begins with understanding the nature of the war being fought. Nigeria is not engaged in a traditional war. It is confronting organised criminality operating in spaces created by weak institutions, slow justice and public distrust. Force alone, therefore, struggles to deliver sustainable outcomes.

One visible consequence of this distrust is the rise of opportunistic self-help actors. Across several states, informal negotiators and vigilante groups now claim to mediate kidnappings, arrange ransom payments and guarantee outcomes. They present themselves as filling a vacuum. Many exploit it. Their growth reflects a declining confidence in official channels to deliver timely rescue or accountability.

This is not only a criminal issue but a sociological one. When families turn to unregulated intermediaries in moments of crisis, they are expressing a loss of faith in the state. Parallel power centres emerge. Incentives distort. Criminal activity becomes normalised rather than deterred.

Thucydides opined that societies decay when fear replaces trust in public institutions. Nigeria has reached that point in parts of the country, not because law is absent, but because it is inconsistently felt. Forceful eviction and reoccupation of local communities, and ransom negotiations rather than rescue, are not just a loss of sovereignty, but a pledge of allegiance.

The correctional system offers further evidence. Official figures show that Nigeria’s custodial centres operate far beyond capacity, with occupancy levels exceeding 150 percent nationwide. Many detainees are awaiting trial. Overcrowding strains resources, weakens rehabilitation and reinforces public perception that enforcement prioritises arrest over investigation. This runs counter to the Administration of Criminal Justice Act, which emphasises efficiency, proportionality and the reduction of pre-trial detention.

The courts have repeatedly warned against this culture. In Eda v. Commissioner of Police (1982) 3 NCLR 219, the court held that arrest should not be used as a tool of oppression or investigation. Policing that arrests before investigating undermines legality and public cooperation.

At the centre of the Minister’s task is legitimacy. Security in a constitutional democracy rests on the idea that coercive power is exercised in service of civilian life, not in substitution for it. Soldiers are trained for combat and territorial defence. They are not designed to administer civilian society or resolve routine criminal disputes. Where military force drifts into daily civil affairs, it signals institutional failure elsewhere.

This distinction matters in practice. When communities encounter a uniformed force, where they expect lawful process, cooperation declines. Ambiguity corrodes discipline. Morale within the armed forces suffers when deployments lack clear legal boundaries or public support. Professionalism erodes not from malice, but from uncertainty.

Clear mandates, defined roles and respect for civilian authority protect both the soldier and the citizen. Dwight Eisenhower cautioned that leadership produces results through people, not over them. A security policy that ignores this principle invites resistance rather than compliance.

The Defence Minister’s familiarity with the system places a duty on him to realign roles rather than expand them. His task is to ensure security institutions operate with civil authorities, not as substitutes for them. State resources must target criminal networks rather than political anxieties. Justice must flow from institutions, not bargaining power or desperation.

Helmuth von Moltke observed that strategy is a system of expedients. Nigeria does not need spectacle. It needs coherence. Security policy and implementation must reflect social realities and rebuild confidence patiently.

The Minister is not new to Nigeria’s security story. That may prove decisive. If experience translates into reform, power into restraint, and force into legitimacy, he will have achieved the convergence of strategic and tactical successes. He will have begun the harder work of renewing the terms of the social contract, restoring faith in the idea that the state exists to protect.

Insecurity thrives where law feels distant, and trust runs thin. The task ahead is to bring both back within reach.

Bulus Y. Atsen, fsi, Esq., is a legal practitioner and a Fellow of the Security Institute. He can be reached through [email protected].

The views expressed by contributors are strictly personal and not of Law & Society Magazine.

By Prof. Ernest Ojukwu, SAN

I have read reports of Chief Mela Audu Nunghe, SAN, President of the Nigerian Law Society (NLS), and his presentation at the public hearing on the Legal Practitioners Bill 2025. In his address, he urged the Senate Committee on Judiciary, Human Rights and Legal Matters to incorporate a pluralistic framework for national bar representation.

While I acknowledge and support the right of legal practitioners to establish and join professional associations such as the Nigerian Law Society, it must be clearly stated that there cannot be two Bar Associations within one jurisdiction. The establishment of lawyers’ associations is constitutionally protected under the right to freedom of association; however, this right does not extend to the creation of parallel Bar Associations with overlapping regulatory mandates.

There is nothing in the Nigerian Constitution that grants a right to establish more than one Bar Association within the same legal jurisdiction. To do so would be conceptually and institutionally wrong. The Nigerian Law Society, therefore, should not aspire to function as an alternative Bar Association. There exists no precedent for such an arrangement within the Commonwealth or the United States. Nigerian Bar Association leadership should stop blocking the establishment of the Nigerian Law Society, and the Nigerian Law Society should stop canvassing to be regarded as an alternative Bar Association. There is nothing like an alternative Bar anywhere else.

Comparative Jurisdictions

England and Wales
In England and Wales, the nearest equivalent to a Bar Association for barristers is the Bar Council of England and Wales, whose regulatory counterpart is the Bar Standards Board (BSB). For solicitors, the representative body is The Law Society of England and Wales, regulated by the Solicitors Regulation Authority (SRA).

Scotland
Scotland maintains a similar distinction. Barristers, known locally as advocates, belong to the Faculty of Advocates, while solicitors are represented and regulated by the Law Society of Scotland.

Northern Ireland
In Northern Ireland, the Bar of Northern Ireland represents and regulates barristers, while the Law Society of Northern Ireland performs similar functions for solicitors.

Canada
Canada’s legal profession is organized around voluntary bar associations for advocacy and professional development, and law societies that exercise regulatory control.
At the national level, the Canadian Bar Association (CBA) serves as the principal voluntary association for legal professionals, complemented by specialized associations such as the Canadian Association of Black Lawyers (CABL), Canadian Defence Lawyers (CDL), Criminal Lawyers’ Association (CLA), and the Canadian Corporate Counsel Association (CCCA).

Each province and territory also has its own branch of the CBA—e.g., CBA–Alberta, CBA–British Columbia (CBA-BC), Manitoba Bar Association, CBA–New Brunswick (CBA-NB), CBA–Newfoundland & Labrador (CBA-NL), CBA–Nova Scotia (CBA-NS), Ontario Bar Association (OBA), CBA–Prince Edward Island (CBA-PE), CBA–Québec (CBA-QC), CBA–Saskatchewan (CBA-SK), CBA–Yukon (CBA-YT), CBA–Northwest Territories (CBA-NT), and CBA–Nunavut (CBA-NU).

Regulation, however, is reserved to the provincial law societies, such as the Law Society of British Columbia, Law Society of Alberta, Barreau du Québec, Law Society of Ontario, and their counterparts across the provinces and territories. Membership in these bodies is mandatory for legal practice.

United States
In the United States, the American Bar Association (ABA) serves as a national voluntary professional organization but does not license lawyers. Each state maintains a single Bar Association—some of which are regulatory (mandatory), others voluntary. Examples include the Alabama State Bar, State Bar of Arizona, Colorado Bar Association, New York State Bar Association, and State Bar of California (regulatory), alongside the California Lawyers Association (voluntary). Where dual systems exist—such as in North Carolina—there is a clear distinction between the North Carolina State Bar (regulatory) and the North Carolina Bar Association (voluntary).
Across the U.S., there is no jurisdiction with two competing Bar Associations exercising regulatory authority.

The Nigerian Context

The Nigerian Bar Association (NBA) is sui generis. Although registered as a voluntary association, it enjoys statutory recognition and regulatory functions under the Legal Practitioners Act (LPA) and the Rules of Professional Conduct.

In Suit No. OB/27/2020 — Ben Oloko v. The Incorporated Trustees of the Nigerian Bar Association (judgment delivered on 29 July 2022), the Enugu State High Court, following the precedent in Chinwo v. NBA (SUIT NO FHC/PH/CS/518/2011), declared membership in the NBA mandatory for all legal practitioners upon call to the Bar and for continued practice. This decision reaffirmed the NBA’s special status within Nigeria’s legal architecture. It does not matter whether you agree with the decisions- that is the current status of the Nigerian Bar Association.

Nowhere within the Commonwealth does one find multiple Bar Associations operating within a single jurisdiction. The Legal Practitioners Bill 2025 reinforces the NBA’s regulatory role — a continuation of Nigeria’s long-standing legal tradition. While there may be debate over the scope and nature of these regulatory functions, the reality remains that the NBA occupies a unique and indispensable position in the professional governance of lawyers.

Nigeria’s regulatory framework for the legal profession already comprises several bodies — the Body of Benchers, Bar Council, Council of Legal Education, Legal Practitioners Privileges Committee, Legal Practitioners Disciplinary Committee, and the Supreme Court. Previous attempts, such as the 2018 Legal Profession Regulation Council Bill, to remove the NBA’s regulatory powers were rejected by the Body of Benchers when they rejected the entire bill and made attempt with their draft bill to become the complete regulator for the legal profession.

Comparative analysis from the Commonwealth and the United States confirms that, whether or not a Bar Association has regulatory powers, it remains a singular and foundational institution.

Accordingly, the Nigerian Law Society may validly exist as a voluntary professional association — promoting networking, welfare, and advocacy — but cannot share regulatory powers with the Nigerian Bar Association. To do otherwise would constitute a clear aberration in both principle and precedent.

Prof. Ernest Ojukwu, SAN (Teacher)

The views expressed by contributors are strictly personal and not of Law & Society Magazine.

By Chidi Anselm Odinkalu

“All judges are politicians whether they know it or not.”

Enrique Petracchi, former Chief Justice of Argentina, (2002).

Among lawyers trained in the traditions of the Common Law, judicial power is often misunderstood. In Nigeria, the 1999 Constitution divides the powers of the federation between the legislature, the executive and the judiciary. The first two are elected. Judges are not. In the elected arms, it vests the legislative and executive powers of the federation. In turn, the same constitution vests the “judicial powers of the Federation” in the courts. This suggests that judicial power is political, not institutional.

Yet, the tradition of Nigerian law is largely to equate judicial powers with the jurisdiction of courts to both adjudicate over cases and fashion remedies in accordance with the pleadings of the parties and with judicial interpretation of the applicable laws. That is an error. Jurisdiction is inherent in the judicial office; judicial power is functional in how the judicial deploys its jurisdiction behind the party or cause that it prefers. This is the sense in which lawyers trained in the methods of the Civil Law system speak of le pouvoir judiciaire – the judicial power.

On 15 December 2025, Nigeria’s Supreme Court indulged in a dramatic demonstration of judicial power in a case in which it determined that it lacked jurisdiction on the facts. The dispute arose over the proclamation by President Bola Ahmed Tinubu of a State of Emergency in Rivers State on 18 March 2025. The declared duration of the emergency was an initial period of six months. In the proclamation, the president also pronounced the suspension of the elected governor and House of Assembly of the state.

At the time, the governor of Rivers State, Siminalayi Fubara – who has recently christened himself a lifelong “progressive” – was in supposedly retrograde company in the Peoples’ Democratic Party (PDP), on whose platform he was elected.

23 days after the emergency proclamation, 11 Governors elected on the platform of the PDP – naturally suffering from a profound bout of “there but for the grace of geography go I” – invoked the original jurisdiction of the Supreme Court to challenge the constitutionality emergency proclamation. Under Nigeria’s constitution, the Supreme Court is the final court of appeal in the country and most cases get to the court by way of an appeal from lower courts. However, the court also has original jurisdiction as a court of both first and final instance in legal disputes between the federation and states or between states among themselves.

When this case was filed, the emergency still had five months and one week to run. A Supreme Court which desired could easily have accorded it due priority and dealt with it expeditiously. The case concerning Local Government autonomy filed in May 2024 (which arrived the court by similar means), for instance, took only 45 days from filing to judgment on 11 July of the same year.

In this case concerning emergency rule in Rivers State, however, the Supreme Court chose a deliberately somnolent route to scheduling. Everything the court did subsequently appeared to have been underpinned by that imperative.

On 18 September 2025, the emergency proclamation in Rivers State became spent and the suspended institutions and officials were restored to office. By the time the Supreme Court found time to address the issues posed for it in the case three months thereafter, five of the 11 governors who filed the original action had relocated their party loyalty from the PDP to the president’s All Progressives Congress (APC). Two more would do so in the days immediately following the judgment. No one will ever truly know whether the jurisprudence of political coercion confirmed in this case had anything to do with the desperation of these gubernatorial acts of party political transfiguration.

After their judgment, the Supreme Court released an unsigned, 14-page media summary of the majority judgment of Mohammed Baba Idris, who led a majority of six of seven Justices. There followed a public race to unravel what the Justices had decided. The media reported that the Supreme Court had licensed the president to suspend elected state officials under colour of an emergency. Femi Falana SAN, provided a spin on the judgment from a segment of the legal profession initially in shock, which argued that the court did not go as far. In reality, it did that and much more and the initial media reports were very accurate.  

Five things are notable about the decision of the court in this case. First, in a mere four pages, all seven Justices made short shrift of the case as filed, declining jurisdiction on the basis that “the plaintiffs failed to disclose any reasonable or justiciable dispute between them and the federation capable of invoking the original jurisdiction of the court.”

At this stage, the job of the court was done. However, the Justices decided to “undertake a considered discussion on the scope and exercise of the powers” under the constitution concerning emergency proclamations. It is notable that the court framed what it undertook in the remaining two-thirds of its “summary” as a “discussion”, rather than an exercise in judicial decision making. Scholars and jurists will expend considerable froth in the years to come on the import of what may well become known as “Supreme discussion”.

Second, the court embarked on its self-appointed discussion by locating the bases of emergency powers in an invented doctrine of “a temporary expansion of federal powers” which lacks any foundations in the text or structure of Nigeria’s constitution. Indeed, emergency powers under Nigeria’s federal system are not an expansion of federal powers. On the contrary, they are contingent powers, ripe to be exercised upon the fulfilment of twin requirements of substantive and procedural compliance with constitutional pre-conditions.

Third, turning to the constitutional pre-conditions, the Supreme Court continued its disquisition by pronouncing the emergency proclamation in Rivers State as having fulfilled the substantive pre-conditions under the constitution.

Fourth, the Court turned to the procedural arithmetic preceding the emergency proclamation. Nigeria’s constitution requires an emergency proclamation to be sustained by a joint resolution supported by two-thirds majority of each chamber of the National Assembly. The court ruled that this implies that the voting “process adopted renders the attainment of the two-thirds majority clearly ascertainable.” In this case, the National Assembly used a voice vote to ram through its joint resolution in support of the emergency rule. The Supreme Court managed to see this as competent constitutional computation, not parliamentary voodoo.

Fifth, the Court discussed whether the president had the power under an emergency proclamation to suspend elected state officials, including the governor and legislators. It laid down one constraint to the effect that “emergency measures must be temporary, corrective, and proportionate”; and added that “any permanent displacement or abrogation of democratically elected institutions would constitute a constitutional aberration.” “Outside a validly declared state of emergency”, the court further discussed “the President possesses no power whatsoever to interfere with State executive or legislative institutions.”

It was an odd way to phrase arguably the most cynical and gratuitous expansion of presidential power in the history of the Nigerian Supreme Court. In other words, the Supreme Court clearly discussed its way to supporting the assertion by the president of a power to suspend any governor he does not like under colour of an emergency proclamation. It is also cynical because the court does not offer this as a decision but as a discussion, without even the ceremony of a declaratory import.

One of the seven Justices, Obande Ogbuinya, concurred in the decision that the court lacked jurisdiction but reportedly dissented on judicial tolerance of a presidential power to suspend elected state officials. Unlike the majority decision, the court did not bother to provide a summary of his dissent.

The decision of the Supreme Court to become a “discussion” forum on such an issue of extraordinary constitutional significance is guaranteed to roil governance and politics in Nigeria for a long time. As an exercise of judicial power, it supremely wilful, cynical, and political.

A lawyer and a teacher, Odinkalu can be reached at [email protected]