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Service chiefs’ appointment: Cart before horse?

Service Chiefs

Last Wednesday, 24 hours after he appointed new service chiefs, President Muhammadu Buhari wrote to the National Assembly, seeking confirmation of the appointees. But lawyers have argued that the president adopted a wrong procedure which could have unintended legal consequences, writes ROBERT EGBE 

 

 

President Muhammadu Buhari’s replacement of all the service chiefs last Tuesday caught many Nigerians by surprise – a mostly pleasant one.

Support for the president’s action was overwhelming, at least on social media, despite it coming years after calls by the public and federal lawmakers for the military commanders’ removal following worsening insecurity.

On Twitter, for instance, ‘Service Chiefs’ and, in a related context, ‘Boko Haram’, were the top two trending topics that night.

The next day, the conversation shifted from appointment to, among others, the pre-appointment procedure for the service chiefs.

Those who should know – mostly lawyers – faulted the government’s action. According to them, the President had unwittingly set the government up for legal challenges by skipping a major ingredient necessary to legitimise the officers’ appointment.

Did he?

President Buhari announced that he had accepted the immediate resignation of the Service Chiefs, and their retirement from service, in a statement by his Special Adviser on Media and Publicity, Chief Femi Adesina.

The retired military top brass was Chief of Defence Staff, General Abayomi Olonisakin; Chief of Army Staff, Lt-Gen. Tukur Buratai; Chief of Naval Staff, Vice Admiral Ibok Ekwe Ibas and Chief of Air Staff, Air Marshal Sadique Abubakar.

Using his verified Twitter handle, the President said: “I have accepted the immediate resignation of the Service Chiefs, and their retirement from service. I thank them all for their overwhelming achievements in our efforts at bringing enduring peace to Nigeria, and wish them well in their future endeavours.

“I have also appointed new Service Chiefs to replace the retired officers:

Major-General Leo Irabor, Chief of Defence Staff (CDS); Major-General I. Attahiru, Chief of Army Staff (COAS); Rear Admiral A. Z. Gambo, Chief of Naval Staff (CONS); Air-Vice Marshal I. O. Amao, Chief of Air Staff (COAS).”

Service chiefs hit ground running

The new service chiefs have since begun work.

Major-General Irabor took over the mantle of the leadership of the Armed Forces from his predecessor in a ceremony in Abuja on Friday.

In line with the tradition of the armed forces, the outgone CDS Olonisakin decorated his successor and handed the insignia and the flag of the office to him.

Hailing Irabor’s appointment, Olonisakin said the new CDS was familiar with the security challenges, having previously served as Theatre Commander, Operation LAFIYA DOLE and Multinational Joint Task Force.

He said there could not have been a better choice of a seasoned senior officer, “who will hit the ground running as the new CDS”.

Responding, Irabor thanked President Buhari for considering him fit for the appointment as CDS and pledged to hit the ground running.

“Let me thank the former CDS and the former service chiefs for their various contributions throughout their tenure in office.

“It is by virtue of their leadership that the strides that were being made were achieved,’’ he said.

He appealed to Nigerians to support the military and other security agencies in ensuring that peace and tranquillity return to the country.

Rear Admiral Gambo and Air-Vice Marshal Amao also took charge as helmsmen at the Navy and Air Force the same day.

Major-General Attahiru took over the mantle of leadership of the Army a day earlier.

On Sunday, the Chief of Defence Staff paid his first operational visit to the Theatre Command in Maiduguri, Borno State.

He was accompanied by the Chief of Army Staff, Attahiru; Chief of Air Staff, Amao; and the Chief of Naval Staff, Gambo.

Major-General Irabor and his team were received by Farouq Yahaya, Theatre Commander, Operation Lafiya Dole; Abdul Khalifa, the General Officer Commanding, 7 Division of the Nigerian Army and other principal staff officers of the Military Command and Control Centre at the Headquarters of the Air Task Force.

Mr Khalifa told the News Agency of Nigeria (NAN) in an interview, that the CDS would be meeting with the other Service Chiefs, Theatre Commander, Operation Lafiya Dole, Chiefs of Training and Operations from the Defence Headquarters, Army, Navy, Air Force and other field commanders, where they would be briefed on recent operations in the theatre.

Power, procedure to appoint service chiefs

The President’s power to appoint service chiefs is as contained in the constitution, particularly Section 218 (1; 2; 4 [a & b]), and ancillary legislation such as Section 18 (1) of Armed Forces Act, 2004.

Section 218 (1; 2; 4 [a & b]) states: ”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 Armed Forces Act, Cap A 20 Vol. 1, LFN, 2004, states: ”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”.

Clearly, the law vets the power of appointment of service chiefs on the President, pending confirmation by the national assembly.

Appointments ‘inchoate’

It is a point Senior Advocates of Nigeria (SAN) Mike Ozekhome and Femi Falana have emphasised. According to them, the president placed the cart before the horse by not seeking legislative approval before replacing his military commanders.

Ozekhome, in a statement, described the appointees’ status as “inchoate” in the eyes of the law.

“Can the Service Chiefs legally act upon mere appointment without confirmation by the Senate or National Assembly?” he asked.

Relying on Section 218 (1; 2; 4 [a & b]) and Section 18 (1) of Armed Forces Act, he argued to the contrary.

Ozekhome buttressed his argument with a reference to a 2013 judgment which described the appointments of Service Chiefs without the concurrence of the National Assembly as illegal and unconstitutional.

Falana, in a statement last Wednesday, referenced the same judgment.

He argued that by the decision, the Service Chiefs have only been nominated but not appointed.

Falana said: “Upon a critical review of the law on the subject matter the members of the Alliance on Surviving COVID-19 and Beyond (ASCAP) have found that the appointments remain inchoate as President Muhammadu Buhari has not forwarded the names of the proposed service chiefs to the National Assembly for approval in strict compliance with the relevant provisions of the Constitution and the Armed Forces Act.

“The appointments of service chiefs without the concurrence of the National Assembly which had been the practice since 1999 was challenged in the Federal High Court sometime in 2008 by Mr Festus Keyamo SAN (the current Minister of State in the Federal Ministry of Labour and Productivity) in the case of Keyamo v President Goodluck Jonathan (unreported Suit No FHC/ABJ/ CS/611/2008).

“In his landmark judgment delivered on July 2, 2013, Adamu Bello J. (as he then was) held that it was illegal and unconstitutional, null, and void for the President to single-handedly 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..,” the statement read.

“Because it was acknowledged that the judgment was sound and unimpeachable the Federal Government did not challenge any aspect of it at the Court of Appeal. To that extent, the judgment is binding on all authorities and persons in Nigeria in accordance with the provisions of section 287of the Constitution”.

‘Appointments illegal’

In his 2014 article on the matter, public interest lawyer Jiti Ogunye weighed in on the appointments during the President Umaru Yar’ Adua era, which Keyamo challenged in court.

Relying on similar constitutional and other provisions, Ogunye said: “We make bold to declare that under the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and the provisions of the Armed Forces Act, the President, acting alone, cannot appoint new service chiefs without prior confirmation, by the National Assembly, of his nominees or designees to these positions.

“Since this is what the President has done, the President has acted illegally and unconstitutionally. Unfortunately, the dubious promise of seeking ex-post-facto legislative approval has duped the unwary into lauding prematurely and spontaneously this exercise of executive duplicity…. The exercise of the executive powers vested in the President is not at large. It is circumscribed by the provisions of the Constitution and other laws.”

Judicial position

At the time of Keyamo’s 2008 suit, the service chiefs were Air Marshall Paul Dike (Chief of Defence Staff), who took over from retiring General Andrew Azazi. President Umaru 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 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 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.

He 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.”

Justice Bello upheld Keyamo’s arguments, determined all the questions in his favour, granted his two declaratory and one of the injunctive reliefs sought.

Buhari sends appointees list to NASS

Following lawyers’ observations, the Presidency announced last Friday that there was no cause for alarm.

Senior Special Assistant to the President on National Matters (Senate), Sen. Babajide Omoworare, said the President communicated the appointment of the service chiefs to the National Assembly, seeking their confirmation by the Senate.

He said that the letter addressed to the President of the Senate was dated January 27, a day after the announcement of the appointments was made.

“This was done in furtherance of Section 18(1) of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria,” he said.

Omoworare said that this was contrary to fears being expressed in certain quarters that the president had ‘bypassed’ the National Assembly in the appointment of the service chiefs and that he (Buhari) had no intention of seeking consideration and confirmation of their appointment…

“It is on record that this same procedure was adopted when the immediate past service chiefs were appointed,” he added.

Omoworare expressed hope that, as the National Assembly resumes plenary on February 9, the president’s communication for consideration and confirmation of the nominations would be undertaken.

Senate won’t cut short recess to confirm service chiefs

But another dimension was introduced to the appointments on Sunday when the Senate reportedly declined to cut short its current recess to confirm the appointment of the newly appointed service chiefs.

At his meeting with the service chiefs last Wednesday, the President impressed on them the precariousness of the country’s security situation.

“We’re in a state of emergency. Be patriotic, serve the country well, as your loyalty is to the country,” Buhari said.

It is an assessment many Nigerians would agree with.

But the lawmakers do not seem to be on the same page.

A national daily quoted the Chairman, Senate Committee on Media and Public Affairs, Dr Ajibola Basiru as saying there was nothing urgent about the President’s letter.

According to him, the National Assembly postponed its resumption because of another national issue.

The lawmakers’ lack of urgency is thus a clog in the wheel of the service chiefs’ appointment, knowing full well that the country cannot afford to be without service chiefs.

Status of service chiefs pending NASS approval

The questions for stakeholders are: what is the current status of the appointees? Are they acting illegally? Can their decisions be challenged?

Yes, said Ozekhome, Falana and Ogunye.

Falana noted that failure to obtain NASS approval “means that the said appointments are liable to be set aside on the basis of the valid and subsisting judgment of the Federal High Court.”

Ogunye, in his article, stated further: “After a calm reading of the above-cited provisions of the Constitution and the Armed Forces Act and upon careful consideration of the operation of similarly worded provisions in the 1999 Constitution, and having regard to well established practice in other jurisdictions, it is our humble view that no  military officer in Nigeria lawfully can be appointed as a service chief and be commanded or directed to start functioning in that capacity or start discharging the duties of that office without a prior approval or confirmation of that military officer as a proposed appointee.

“Transfer or change of command in the military in our presidential system of government is not a whimsical or arbitrary prerogative of the President but a procedure-governed exercise under the rule of law. The President cannot furtively, clandestinely or capriciously appoint service chiefs and foist them on the Legislature, and on the Country in the way a military head of state would do.”

He argued that it is upon confirmation of the nominations, that the President shall then “formally” make or announce the appointments…. No valid or lawful appointment of service chiefs can be made before or until nominations of prospective appointees are first confirmed.”

Surely, the President should, perhaps in an emergency, appoint first and get confirmation later?

No, said Ogunye.

Explaining why, he said: “The confirmation does not come after the appointment. It comes before. It is unreasonable and illogical to construe the above provisions as permitting the President to first appoint, and later seek confirmation, such that in the event of non-confirmation, the service chiefs so appointed shall then step down from their respective command positions and other service chiefs are then ‘appointed’” and presented for confirmation. The President cannot ‘informally’ appoint service chiefs and later seek ‘formal’ confirmation of ‘appointments’…The President can only lawfully propose or designate service chiefs, present them for confirmation and upon confirmation, appoint them.”


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