President Muhammadu Buhari violated the Nigerian Constitution and the Armed Forces Act by appointing new service chiefs without the approval of the National Assembly, lawyers have said.
Mr Buhari, on Tuesday, appointed Lucky Irabor, a major general, as the new chief of defence staff.
He also appointed Ibrahim Attahiru, a major general, as the chief of army staff; Auwal Gambo, a rear admiral, as the chief of naval staff, and Isiaka Amao, an air vice marshal, as the chief of air staff.
The appointment was announced by the presidential spokesperson, Femi Adesina.
Mr Adesina said the former occupants of the position had resigned and that the president had accepted their ‘immediate resignation.’
Appointment is Illegal, Unconstitutional
However, lawyers, who spoke to PREMIUM TIMES, have faulted the appointment, saying the president did not follow the procedures laid down by the 1999 Constitution (as amended) and the Armed Forces Act.
Human rights lawyer and activist, Femi Falana, said going by the provision of the two documents and as far as the law is concerned, the service chiefs were merely nominated, not appointed yet.
He argued that the new heads of the armed forces should have been screened by the National Assembly, the highest legislative body in the country.
Mr Falana, a Senior Advocate of Nigeria, said the appointments remained inchoate since the president has yet to forward the names of the proposed service chiefs to the legislature 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),” he said in a statement on Wednesday.
“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 appointed 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.”
Mr Falana said it was because 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,” he said.
He urged the president to forward the names of the proposed service chiefs to both chambers of the National Assembly for confirmation, otherwise, the said appointments could be set aside on the basis of the valid and subsisting judgment of the Federal High Court.
Also speaking on the issue, an Abuja-based lawyer, Abduljalil Musa, said there was no alternative to laid down procedure.
“The Armed Forces Act is clear on the procedure, and once the law provides a method of doing certain things, no other method can be valid other than the prescribed method,” Mr Musa told this newspaper in a telephone interview.
“The position is further strengthened by the valid and subsisting judgment of the Federal High Court on the issue which same has not been appealed against.”
Another lawyer, Jiti Ogunye, had argued in an opinion published by PREMIUM TIMES in 2014 that under relevant sections of the law, the president alone cannot appoint new service chiefs without the prior approval of the legislature.
Mr Ogunye wrote the article in response to the appointment of service chiefs by the Goodluck Jonathan administration when the late Alex Badeh was appointed as Chief of Defence Staff.
“Since this is what the President has done, the President has acted illegally and unconstitutionally. Unfortunately, the dubious promise of seeking ex-post factolegislative approval has duped the unwary into lauding prematurely and spontaneously this exercise of executive duplicity.,” he said.
“True, under Section 130 (2) of the Constitution, “the President shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation.” But 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.”
He quoted a section of the armed forces act that specifically talks about the confirmation by the National Assembly.
“Part VII of the Armed Forces Act, Cap A20, Vol. 1, LFN, 2004 provides for administration, government and command of the armed forces. S.18 (1&2) of the Armed Forces Act governs the appointment of the service chiefs. It 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; (2) The Service Chiefs shall be known (a) in the case of the Army, as the Chief of Army Staff; (b) in the case of the Navy, as the Chief of Naval Staff; and ( c) in the case of the Air Force, as the Chief of Air Staff,” he quoted.
“When the provisions of Constitution and the Armed Forces Act, cited above, are read together, there can be no doubt that the appointment of the services chiefs are subject to confirmation by the National Assembly (Senate and House of Representatives),” he said.
When contacted, he re-affirmed his stand on that opinion via SMS, adding that the law has not changed since then.
It is not clear if the president formally notified the National Assembly of the appointments before they were made. The spokesperson to the Senate President, Ola Awoniyi, said he had no knowledge of any letter from the presidency on the matter.
“I have no such idea at all,” he said.
The Court Judgement
The Federal High Court in July 2013 had declared the appointment of service chiefs of the federation by the then President Goodluck Jonathan unconstitutional, illegal, null and void.
The judge, Adamu Bello, also restrained the president from further appointing them without the approval of the Senate.
The decision was a sequel to a case instituted in 2008 by Festus Keyamo, a lawyer, against the president.
When contacted, Mr Keyamo, who is currently a minister in Mr Buhari’s government, said he stood by the judgement which he said was not appealed by the then federal government.
The court in its ruling further restrained the president from appointing service chiefs for the federation without first obtaining the confirmation of the National Assembly.
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