By Chief Mike Ozekhome
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, to the effect that the former Service Chiefs had “resigned”, and therefore “retired”. Oh, really? Not so smart!Forget also the glaring faux pas in the president “congratulating” them for their alleged “overwhelming achievements in our efforts at bringing ending peace to our dear country”.
Well, I did not, could not, and cannot see these “overwhelming achievements”, except in the negative, which permitted insecurity to reign supreme, like a proud peacock. I had pooh-poohed this aspect of the spokesman’s statement in my earlier outing on this issue.
Inspite of the apparent sigh of relief heaved about the new Service Chiefs, It is not yet uhuru. One nagging question still remains unanswered. Can the Service Chiefs legally act upon mere appointment without confirmation by the Senate or National Assembly?
This reminds me of imperious Mr Ibrahim Magu (where is he, by the way?), whom some people had argued ferociously (on his behalf), that he could stay in office forever, till kingdom come, without Senate confirmation, notwithstanding the clear provisions of Section 2 (3) of the EFCC (Establishment) Act. 2004.
They very well knew they were dead wrong. But, it was simply sufficient to defend illegality at all cost for short term vision. I bluntly refuse to fall into that category, no matter the pressure.Let us now, like discoverers, Mungo Park, Lander Brothers, Clapperton, Vasco Da Gama and Prince Henry the Navigator, make an exploratory navigation of extant laws and court decisions concerning this controversial issue.DO SERVICE CHIEFS APPOINTED BY THE PRESIDENT REQUIRE NASS OR SENATE CONFIRMATION?
THE LAWSection 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 INTERVENTION BY THE COURTS Mr Festus Keyamo, SAN, (now Minister of State, Labour and Productivity), had in 2008, 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 Service Chiefs that were then were: Air Marshall Paul Dike (Chief of Defense 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 case against the Federal Government, in Suit No: FHC/ABJ/ CS/611/2008, Keyamo, had sought a determination of the following questions:“Whether by the combined interpretation of the provisions of Section 218 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 18 of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria, 2004, the President can appoint the service chiefs of the federation without the confirmation of the National Assembly first sought and obtained”.
“Whether by the combined interpretation of the provisions of Section 218 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 18 of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria, 2004, the President can appoint the service chiefs of the federation without the confirmation of the National Assembly first sought and obtained”.
“Whether Section 18 (1) and (2) of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria, 2004 is not in conformity with the provision of the 1999 Constitution so as 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”.
He therefore 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 in 2013. While delivering judgment in the five-year old suit, he held, with great lucidity, depth and breadth, thus:”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, even as Justice Bello granted the Plaintiff’s two declaratory and one of the injunctive reliefs sought.THE EXTANT LEGAL POSITION to the best of my knowledge, this judgement was never appealed against.
The judgement of Justice Adamu Bello delivered on June 30, 2013, thus, still remains extant and unchallenged, on the position that the President cannot unilaterally appoint the nation’s Security Chiefs without the confirmation of the Senate. Such appointments, as recently made by president Buhari, remains inchoate, until confirmed by the National Assembly, (not the Senate alone), as held by the Federal High Court, Abuja.
For the record, the legal position remains 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).
CONCLUSION: Consequently, President Buhari is hereby humbly advised (ex gratia and pro bono), to approach the National Assembly with a humble request to confirm his new appointed Service Chiefs. Mr President sir, kindly shun the usual accustomed babel and cacophony of pro- government voices and the ineffective liberal disquisitions by historical revisionists ,fawners, bootlickers and grovelers, that he can, as usual, deploy the Service Chiefs without confirmation by the National Assembly first obtained. That would be patently illegal and unconstitutional. Mark my words. My one kobo take. God bless Nigeria.
Chief Mike Ozekhome is a Senior Advocate of Nigeria (SAN), and he writes from Abuja, Nigeria.