Overdue appointment of new service chiefs: Legal and moral issues arising

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Mike Ozekhome, SAN

By Mike Ozekhome, SAN

 INTRODUCTION

ON 26th January, 2021, President Muhammadu Buhari finally listened to the cries and yearnings of most Nigerians and kicked out the non-performing Service Chiefs. Never mind Femi Adesina (the President’s spokesman)’s humouring words of consolation to the disbanded officers, when he said they had “resigned”, and therefore “retired”. Oh, really? Not so smart!

Whether they resigned or retired, the question is whether this change of baton is merely cosmetic? Is it merely new wine in old calabashes? Has anything suddenly changed in terms of acquisition of new equipment, surveillance and intelligence capacity and capability? Does the hood make the monk? Can a book’s worth be known by the beauty of its cover? No. It is not yet “Uhuru”.

What all this boils down to is that beyond mere change of baton which has been overdue from tired muscles and spent pot-belied forces, Nigeria seriously needs to re-engineer, refurbish, reform and overhaul her total security apparatchik, so as to bring it in line with modern international best practices in security engagement matters.

Forget about the glaring faux pas in the president “congratulating” the dismissed Service Chiefs for their alleged “overwhelming achievements in our efforts at bringing enduring peace to our dear country”. Overwhelming achievements? I thought I did not read well. If Mr President meant “overwhelming achievements” in massive failure, I would concur. But, if he meant “overwhelming achievements” in securing our country, I beg to differ. This, to me, is the unkindest oxymoron and irony in the entire press release. Except if used in the negative, since their “overwhelming achievements” merely permitted insecurity to reign supreme, like a proud peacock.

Then, the President’s clincher, the diadem: He said the Service Chiefs brought “enduring peace to our dear country”. Is this alleged peace genuine peace, or peace of the cemetery or grave yard?  My dictionary tells me that peace means tranquility, calm, calmness, law and order, harmony, placidity, rest, armistice, friendship, brotherhood, serenity, contentment, amity, reconciliation. Can any Nigerian hold the Holy Bible, Holy Quran, or piece of iron (depending on your faith), and swear, that we currently have any of the above? I think not. I believe not. Or, do you?

DO SERVICE CHIEFS APPOINTED BY THE PRESIDENT REQUIRE NASS CONFIRMATION?

THE LAW

Let us now, like historical discoverers Mungo Park, Lander Brothers, Clapperton, Vasco Da Gama and Prince Henry the Navigator make an exploratory navigation of extant laws and the court’s intervention concerning this controversial issue, to know if the Service Chiefs can legally act without NASS approval.

The new Service Chiefs are Major-General Lucky E.O Irabor, (CDS); Major-General Ibrahim Attahiru, (CoAS); Rear Admiral Awwal Zubairu Gambo, (CNS); and Air-Vice Marshal Ishiaka Oladayo Amao, (CAS). They all appear younger and lower in rank than their pot-bellied predecessors. That is as far as the difference go for now. One nagging question still remains unanswered: Can the Service Chiefs legally act upon mere appointment without confirmation by the National Assembly? This reminds me of imperious Mr Ibrahim Magu (where is he, by the way?), on whose behalf some people had argued ferociously, that he could stay in office without confirmation by the Senate, till kingdom come. They did not care a hoot, in their sophistry and postulations about the clear provisions of Section 2 (3) of the EFCC (Establishment) Act, 2004, which mandatorily required Senate Confirmation. They were dead wrong in their sophistry and postulations. But, it was simply sufficient to defend illegality at all cost for short term gains. I had bluntly refused to fall into that cheap category, no matter the pressure to be politically correct.

Section 218 (1; 2; 4 [a & b]) of the 1999 Constitution of Federal Republic of Nigeria as altered provides as follows:

“The powers of the President as the Commissioner-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the armed forces of the Federation; (2) The powers conferred on the President by subsection (1) of this section shall include power to appoint the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and heads of any other branches of the armed forces of the Federation as may be established by an Act of the National Assembly;  (4) The National Assembly shall have power to make laws for the regulation of -(a) the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation; and (b) the appointment, promotion and disciplinary control of members of the armed forces of the Federation.”

Also, Section 18 (1) of Arm Forces Act, Cap A 20 Vol. 1, LFN, 2004, states that,

“The President, may, after consultation with the Chief of Defence Staff and subject to confirmation by the National Assembly, appoint such officers (in this Act referred to as “the Service Chiefs”) as he thinks fit, in whom the command of the Army, Navy and Air Force, as the case may be, and their Reserves shall be vested”.

The above sections are all too clear. The NASS must give approval to validate the appointments of the new Service Chiefs. This does not detract from the President’s sole right to so appoint.

THE JUDICIARY INTERVENES

In 2008, Mr Festus Keyamo, SAN (now Minister of State, Labour and Productivity), had approached the Federal High Court, Abuja, to challenge former President Umaru Yar’Adua’s appointment of certain Service Chiefs, as announced by the then Presidential spokesman, seasoned journalist and wordsmith, Segun Adeniyi. The names of the then Service Chiefs were Air Marshall Paul Dike (Chief of Defence Staff); Air Marshall Dike took over from General Andrew Azazi, who was then retiring from service. President Yar’ Adua had also approved the appointment of Major-General A.B. Dambazau as the Chief of Army Staff; Rear Admiral Iko Ibrahim, as Chief of Naval Staff; All the appointments were with “immediate effect”. They had replaced the former Service Chiefs who had been appointed by President Olusegun Obasanjo. Dambazau had replaced Major General Luka Yusuf; and Ibrahim had replaced Vice Admiral G.T.A Adekeye. Keyamo had argued that the practice of side-stepping the constitutional requirement of getting the consent of the National Assembly in the appointment of Service Chiefs was unconstitutional.

In the said suit against the Federal Government, in Suit No: FHC/ABJ/ CS/611/2008, Keyamo, had sought the following reliefs:

“A declaration that the appointment of service chiefs for the Federal Republic of Nigeria by the President, without the confirmation of the National Assembly is illegal, unconstitutional and void”.

“A declaration that Section 18 (1) & (2) of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria, 2004, is in conformity with the provisions of the 1999 Constitution so as not to fall within the category of existing laws under Section 315 (2) – of the Constitution of the Federal Republic of Nigeria, 1999, that the President, may, by order, modify its text, to bring it into conformity with the provisions of the Constitution”.

“An order restraining the President from further appointing service chiefs for the federation without first obtaining the confirmation of the National Assembly. Parties to the suit had filed written briefs on the legal issues raised and adopted same”.

Justice Adamu Bello of the Federal High Court, Abuja, delivered his judgement 30th June, 2013, in the five-year old suit, with great lucidity, depth and breadth. He held:

“It was illegal and unconstitutional, null and void for the President to singlehandedly appoint service chiefs without the approval of the National Assembly having regards to the combined effect of section 218 of the Constitution and section 18 (1) & (3) of the Armed Forces Act”.

Justice Bello went further to uphold the plaintiff’s arguments and determined all the questions in his favour, granting the Plaintiff two declaratory and one of the injunctive reliefs. The Judex made it clear that it would be unconstitutional to use Service Chiefs without NASS confirmation.

APPOINTMENT OF SERVICE CHIEFS REMAINS INCHOATE

To the best of my knowledge, this judgement was never appealed, nor upturned. So it thus remains extant and valid, on the position that the President cannot unilaterally appoint the nation’s Security Chiefs without the confirmation by the NASS. The recent appointments thus remain inchoate, until confirmed by the NASS.

The legal position is that a judgement not appealed against, or upturned on appeal, remains valid and must be obeyed by all persons and authorities, even if unpalatable. This position of the law has received judicial imprimatur over the years. See the cases of NOEKOER V. EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS. (2018) LPELR-44350 (SC) and NWORA & ORS. V. NWABUNZE & ORS (2011) LPELR-23008 (SC).

THE WAY FORWARD

Consequently, President Buhari is hereby humbly advised (ex gratia and pro bono), to approach the NASS with a humble request to confirm his new appointed Service Chiefs. He had done this on 14th July, 2015, for the dismissed Service Chiefs. He should shun the usual babel and cacophony of voices and ineffective liberal disquisitions by historical revisionists and grovelers, that he can, as usual, use the Service Chiefs without confirmation by the NASS. That would be illegal and unconstitutional. We operate a constitutional democracy. Things are done according to law, and not by dicta or rule of the thumb. By the way, the new Service Chiefs must shun politics, corruption and subservience to the president as a person. Their constitutional oath of office, Code and ethics of the military and the provisions of the Military Act guide their actions. Their loyalty must be to Nigeria, not to Buhari. They should look at him eye-ball-to-eye-ball and tell him the true and correct security situation. They must shun boot-licking and lies. They must shun partisanship in electoral matters. They must ensure that whoever fairly wins an election is sworn in immediately, as recently demonstrated in the USA, where strong institutions (including the Pentagon), ensured that a demagogue, former Trump, was bundled out of office in place of Joe Biden who had won the elections squarely. Not even the instigated insurrection and attempted coup by Trump could sway the Armed Forces and Police’s loyalty to himself. It was America all the way.

The president must also ensure that the retired Service Chiefs (like their predecessors), are rigorously probed to answer questions about their tenure, budgets, expenditure, IDPs, rights violations, acquisition of weaponry, performance or non-performance, etc. This will answer various allegations of corruption flying about in the air concerning their better-forgotten tenure.

THOUGHTS FOR THE WEEK

“Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy”. (Louis D. Brandeis).

The government, which was designed for the people, has got into the hands of the bosses and their employers, the special interests. An invisible empire has been set up above the forms of democracy. (Woodrow Wilson).

 

 

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