Appointments, extensions: How not to set precedents

President Muhammadu Buhari’s appointment of service chiefs without National Assembly approval, and his controversial extension of the tenure of Inspector-General of Police (IGP), Mohammed Adamu, for another three months, are setting dangerous precedents, Lawyers tell ADEBISI ONANUGA

Two issues are generating a raging debate about the exercise of executive power in Nigeria of late. The first relates to the Federal Government’s recent appointment of military commanders. The second concerns the extension of the tenure of their police counterpart.

Appointment of new service chiefs

President Muhammadu Buhari on January 26 announced the appointment of new service chiefs. They are: Major-General Lucky E.O Irabor, Chief of Defence Staff, Major-General Ibrahim Attahiru, Chief of Army Staff, Rear Admiral Awwal Zubairu Gambo, Chief of Naval Staff and Air-Vice Marshal Isiaka Oladayo Amao, Chief of Air Staff.

They replaced the former service chiefs, General Abayomi Olonisakin (Chief of Defence Staff) – Lt. General Tukur Ibrahim as Chief of Army Staff, Vice Admiral Ibok Ekwe Ibas as Chief of Naval Staff, and Air Marshal Sadique Abubakar as Chief of Air Staff respectively who resigned their appointments.

President Buhari’s senior special adviser, Femi Adeshina, had in a statement on January 29 announced the resignation of the four service chiefs, adding that the President appealed to Nigerians to support the military and other security agencies.

It was the first time the Buhari administration has changed service chiefs since 2015, despite the security challenges the country was facing, particularly the Boko Haram insurgencies in the Northeast, banditry notably in the Northwest and Northcentral and of late herdsmen attacks in the western Nigeria.

Calls for retirement of service chiefs

Prior to the appointment of the new service chiefs, there had been moves to get the armed forces chiefs out of office, particularly in the National Assembly, following the near-nationwide persistence of security challenges.

For instance in 2020, during a plenary session held on July 21, the Senate passed a resolution calling on President Buhari to fire the service chiefs sequel to a motion sponsored by Senator Ali Ndume. The latest of such calls followed the killing of rice farmers in Zabarmari Village outside Maiduguri, the Borno State capital.

Relief, worry over new service chiefs

The general expression of most Nigerians following the new appointments, particularly observers of political developments, was that of relief. The relief stemmed from the fact that the populace had grown tired of failed promises, the service chiefs having failed to provide effective operational tactics and solutions to the insecurity challenges bedevilling the country and which have caused loss of lives in thousands. Hence many Nigerians praised the President for taking the bold steps to ease out the retired service chiefs.

Power to appoint service chiefs

The 1999 Constitution of the Federal Republic of Nigeria (as amended) vests the power to appointment of service chiefs on the President.

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”.

Extension of IGP’s tenure

As the nation was yet to come to terms with the appointment of the new service chiefs, the president again extended the tenure of the IGP, Mohammed Adamu by another three months, and thereby raising controversy on the constitutionality of his actions.

President did no wrong

Although the IGP has since continued to function in office affirmatively, some lawyers have said the President has done nothing wrong by extending the tenure of the IGP. But others declared his action as illegal and unconstitutional.

Enter new service chiefs

While the nation awaits the resumption of the lawmakers, the new service chiefs, without waiting for confirmation of their appointment, have already resumed duty.

For instance, the Chief of Army Staff, Major-General Ibrahim Attahiru resumed duty on January 28 barely 24 hours after their first meeting with the President. The trio of Chief of Defence Staff, Major-General Lucky E.O Irabor; Chief of Naval Staff,  Rear Admiral Awwal Gambo; and Chief of Air Staff , Air-Vice Marshal Ishiaka Amao; took over the mantle of leadership in their respective departments on January 29, the day the President wrote the National Assembly requesting for their confirmation of their appointments.

Has the President breached the constitution?

Many Nigerians are worried that the new service chiefs officially resumed duty without fulfilling the required constitutional procedures.

Some analysts said the president should have subjected the new service chiefs to confirmation of the National Assembly as stipulated in the constitution, the high level of insecurities notwithstanding. To them, it amounted to a breach of the constitution.

The new service chiefs appointed by President Buhari commenced operational duties despite the fact that the NASS is yet to reconvene to confirm their appointment following the president’s letter to the lawmakers.

According to Senior Special Assistant to the President on National Matters (Senate), Sen. Babajide Omoworare, the President communicated the appointment of the service chiefs to the lawmakers via a January 27 letter addressed to the President of the Senate, 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 expressed hope that, as the National Assembly resumes plenary today, the president’s communication for consideration and confirmation of the nominations would be undertaken.

But the chairman, Senate Committee on Media and Public Affairs, Dr Ajibola Basiru, said there was nothing urgent about the President’s letter. He said the lawmakers postponed their resumption because of another national issue.

Stakeholders are worried about the legality or otherwise of the office of the service chiefs. Will they continue to perform in office without passing the constitutional procedures very key to the functionality of their office and assignment?

More worrisome to them is the lawmakers’ apparent lack of urgency in getting the appointment of the new service chief confirmed in spite of the development that led to their appointment.

Is the government becoming one that no longer has consideration for constitutional procedures before taking vital decisions?  Where will disrespect for rule of law lead us as a nation?

Lawyers react

Prof Paul Ananaba (SAN), Kunle Adegoke (SAN),  a lecturer in the Faculty of Law, University of Lagos (UNILAG), Akoka, Wahab Shittu, a social commentator and activist lawyer Kabir Akingbolu expressed varied views on the legality or otherwise of the President’s action.

Extension of IGP’s tenure for judicial interpretation?

Prof Ananaba has said that the extension of the IGP’s tenure by President Buhari is illegal and not in the best interest of the country’s political development.

According to him, the President would be setting a bad precedent for future leaders.

“The President is the head of the executive and the powers of the President are clear in section 5 of the constitution. In my opinion, I don’t think it provides for powers to extend tenures because I think that the retirement of IGP is statutory. It is not by way of anybody’s rule.

“I am of the opinion that it should be taken to the court to get judicial pronouncement on it.

“It is also not in the best interest of our political development to extend such tenures because it will set a precedent. Beyond this president, another president can continue to extend tenure for people. I don’t think it is good for our democracy.

“The tenure of IGP has passed being a political office and should be allowed to go”, he said.

President has power to appoint, extend IGP’s tenure

Adegoke’s view was different.

He said: “As regards the legality of tenure elongation of the IG, we must first consider who has the power to appoint and whether such power is curtailed in any way. Section 215(1) of the Constitution of the Federal Republic of Nigeria vests the power to appoint the IG in the President on the advice of the Nigeria Police Council.”

He argued that by Section 316(2) of the Constitution, before making any appointment to the office of the IGP or removing him from office, the President shall consult the Nigeria Police Council. By Section 7(6) of the Police Act, 2020, the person appointed to the office of the Inspector General of Police shall hold office for four years. The implication of the above is that an IGP’s tenure shall end after four years.

However, the law must be construed together with the provision of Section 11(1) of the Interpretation Act which provides that the power to appoint a person into an office includes the power to appoint the holder of that office from time to time and also the “power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint,- (i) to reappoint or reinstate him, (ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.”

Adegoke submitted that it was within the power of the President to extend the IGP’s tenure “in line with Section 11 of the Interpretation Act. The only qualification is that the President may have to consult the Nigeria Police Council before elongating the tenure.”

‘It is arbitrary’

For Dr Fassy Yusuf, “it would be right to say that the public is witnessing arbitrariness and that the President is exercising power to suit his whims and caprices.”

He recalled that it took months of hues and cries before the president replaced the service chiefs.

“I would have thought the president wouldl consult with the leadership of the national assembly on his proposed appointments and to know when the lawmakers will reconvene. Not when the National Assembly is on recess you make the appointments and now the National Assembly is saying it will not call off its vacation to consider the appointments.

“So, there must be something missing between the NASS and the President. That is to show that they are not working in tandem, they are working at cross purposes, otherwise that appointment would not have been made at the time it was made when they are on recess.”

‘Service chiefs in acting capacity pending confirmation’

On the extension of the tenure of the IGP, Shittu asked: “Based on constitutional provisions and settled judicial authorities, the president cannot appoint the service chiefs without seeking the approval of the Senate. The way out is that the appointees would remain in acting capacities in line with section 11 of the interpretation act. The service chiefs cannot act in substantive capacities without Senate approval as such will be unconstitutional, illegal and a fundamental infraction of the Rule of law.”

He warned that serial breaches by anyone including the President in a democracy, “if left unchecked, will lead to anarchy and endanger the democratic project including our constitutional democracy.

“The President owes it a sacred duty to guide and uphold the law including the letters of our sacred constitution, the uncommanded commander”, he said.

Appointment of new service chiefs against the law

On his part, Akingbolu argued that the country was slipping into a totalitarian state.

He contended that “once a government starts to take decisions without recourse to the law and the people, then there is problem, serious one.”

Akingbolu described the appointment of new service chiefs as being against the law. “It is not in doubt that the National Assembly must confirm any appointment of service chiefs before such appointment can be effective. Speaking most frankly, what the president has done was mere nomination and it would be a total aberration to refer to the faux pax as appointment.

“Therefore, the President would have done better if he has merely appointed them in acting capacity but, unfortunately, they are already performing like substantive service chiefs now, which is illegal.

“As far as the law is concerned, Nigeria has no service chiefs for now because the president has no vires to unilaterally appoint any one as service chiefs under our laws without confirmation by the National Assembly.”

According to him, the IGP’s appointment or extension of his tenure must also be in line with the constitution.

He noted that under Section 215 of the Constitution, the President shall appoint an IGP from amongst the serving police officers.

“That being the case, Can Muhammad Adamu still be regarded as the Inspector-General of Police when he has retired? The answer, I think, is no. Section 216 (2) also stipulates that the removal or appointment of Inspector General of Police shall be approved by the Police Council.

“In the instant case, the police council did not sit let alone approve any extension for the IGP. So, the reality is that we have no IGP. It is highly disheartening how unconscionable the president has become in abusing the rule of law. Too sad,” he said.