Voided by the Court

Fri, Jul 5, 2013

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4 MIN READ

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A federal high court in Abuja voids the appointment of service chiefs by President Goodluck Jonathan without the confirmation of the Senate

|  By Maureen Chigbo  |  Jul. 15, 2013  01:00 GMT

IN NIGERIA, it is very rare to see lawyers have the same opinion on judgments given by a court of competent jurisdiction. In most cases, lawyers will have different opinions and some will even advise their clients to appeal a judgment that is not in their favour. But this is certainly not the case in the ruling given by Justice Adamu Bello of the Abuja Federal High Court on July 2,  declaring the appointment of service chiefs in the country as unconstitutional, illegal, null and void.  Most lawyers Realnews talked to agreed with Bello’s ruling and advised the president not to appeal the case but, instead, do the proper thing by sending the names of the service chiefs to the Senate for screening and confirmation.

Bello’s ruling restrained the president and commander-in-chief of the Armed Forces of Nigeria, from henceforth appointing service chiefs without the approval of the Senate. The judge made the declaration while ruling in a case instituted in 2008 by Festus Keyamo, a lawyer, who asked the court to determine whether the president had the powers to unilaterally appoint service chiefs.

In the suit No.FHC/ABJ/CS/611/2008, the president of the federal republic of Nigeria, the attorney-general of the federation and all the service chiefs were listed as the defendants. The court was  asked to determine whether, by the combined interpretation of section 218 of the 1999 Constitution of the Federal Republic of Nigeria, and Section 18 (1)(2)of the Armed Forces Act, capA.20, laws of the Federation of Nigeria, 2004 was not in conformity with the 1999 Constitution, so as to fall within the category of existing laws under Section 315 (2) of the 1999 Constitution that the president, may, by order, modify its text, to bring it to conformity with the provosins of the Constitution.

In his judgment, Bello answered both questions in favour of the plaintiff and as a result granted all the orders sought in the suit. The ruling will affect the current service chiefs including Lt.Gen. Azubuike Ihejirika, chief of army staff, Air Vice Marshall Alex Badeh, chief of Air Staff, and Rear Admiral Dele Ezeoba, chief of naval staff.

Emeka Ngige, SAN, advised the president to regularise the appointment of the service chiefs without delay and that pending the time such is done, the service chiefs should cease to perform their functions and vacate their offices in obedience to the rule of law and come back after a week or two when their appointment would have been regularised.  Ngige sees the ruling as “an indictment on the Senate which allowed such an illegality to go on without raising eyebrows especially when it is fond of making noise about its oversight functions. The senators must have kept quiet over this illegality out of ignorance or timidity.” The judgment is as clear as the daylight. The law was made during the military era. I don’t think that the Senate should pose any problem in regularising their appointments in view of the security situation in the country. The president should regularise their appointments by quickly forwarding their names to the National Assembly for confirmation.

Similarly, Onyekachi Ubani, president of the Ikeja Branch of the Nigeria Bar Association, NBA, said in a country where there is due process, the service chiefs would not have been appointed without going through the Senate for screening. According to him, appointments of service chiefs  since the advent of civilian administration in the country had been done in breach of the Constitution.

He lauded the solo effort of Keyamo to correct this anomaly, adding: “It is very proper to screen those we put in charge of our security to attest to their competence to hold such sensitive posts.  The process should not take more than two weeks. It is time to comply,” he said.

A lawyer, who once worked in the office of the attorney general, told Realnews that he did not think the federal government would appeal the case. He said even though the judgment did not specifically ask the present service chiefs to vacate their offices,  he thinks that the message is clear and that the government would have realised by now that it made a mistake.