“Appointment” of New Service Chiefs is Illegal and Unconstitutional, By Jiti Ogunye

On 16th of January, 2014, a day after the Armed Forces Remembrance Day Celebrations, President Goodluck Jonathan, announced, through a terse statement issued by Dr. Ruben Abati, Special Adviser to the President ( Media & Publicity), the removal of  the Chief of Defence Staff, Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff and appointment of new ones in their stead.

In order to avoid any accusation of misrepresentation, the State House Press Release issued in this regard read in part thus: “President Jonathan approves Changes in Military High Command- President Goodluck Ebele Jonathan has in the exercise of the powers conferred on him by the Constitution of the Federal Republic of Nigeria approved the following changes in the nation’s Military High Command: Air Marshal Alex Badeh takes over from Admiral Ola Sa’ad Ibrahim as Chief of Defence Staff; Major-General Kenneth Tobiah Jacob Minimah takes over from Lt.-General Azubike O. Ihejirika as Chief of Army Staff; Rear Admiral Usman O. Jibrin takes over from Vice Admiral Dele Joseph Ezeoba as Chief of Naval Staff; and Air Vice Marshal Adesola Nunayon Amosu takes over from Air Marshal Badeh as Chief of Air Staff.

All the changes are with immediate effect President Jonathan has briefed the leadership of the National Assembly on the appointment of the new service chiefs and will, in keeping with the provisions of the law, request the National Assembly to formally confirm the appointments when it reconvenes”

The tenor of the State House Press Release unmistakably suggests that the President, acting as the  head of the Federal Executive Branch of Government and in exercise of his executive powers under the Constitution, has removed the old Service Chiefs in the Armed Forces and appointed new ones, whose appointments shall, at the request of the President, be “formally” confirmed by  the National Assembly.

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 the 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.   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.

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 What do the Constitution and the statute governing appointment of service chiefs say?  Section (hereinafter stated simply as “S”)  218 (1; 2; 4 [ a & b] ) of the Constitution 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.”

S. 219 of the Constitution. then follows by providing  thus: ” The National Assembly shall – (a) in giving effect to the functions specified in S.217 of this Const.; and (b) with respect to the powers exercisable by the President under S. 218 of this Constitution, by an Act, establish a body which shall comprise such members as the National Assembly may determine, and which shall have power to ensure that the composition of the armed forces of the Federation shall reflect the federal character of Nigeria in the manner prescribed in the said Section 217 of this Constitution.”

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”

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). The pertinent question that arises  is whether the confirmation of the appointment comes before an appointment is made or after an appointment is made; whether confirmation comes before a “change in the high command” is carried out “with immediate effect”, or after the said change has been carried out.

After a calm reading of the above-cited provisions of the Constitution and the Armed Forces Act and upon a 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.

In  the United States of America, for example, ” the Chairman of the Joint Chiefs of Staff, is appointed by the President, by and with the advice and consent of the Senate, from the officers of the regular components of the armed forces; and  the Military Service Chiefs from the Army, Navy, Air Force, the Marine Corps, and the Chief of the National Guard Bureau are all appointed by the President,  following Senate confirmation.” See. 10 US Code Ss. 151 & 152

The literal reading or meaning of the wordings of the said provisions bear out this view, and we do not  need to discover the intendment of the law-giver to reach this rational conclusion. But in case we care so to do, we posit that the appointment procedure that is contemplated and envisaged by the makers of the Constitution and framers of the Armed Forces Act is one in which the President shall forward the names of his nominees or designees to the National Assembly, with their respective particulars, curricula vitae and executive justification for the nominations, for the purpose of screening the designated service chiefs and possibly confirming or rejecting them.

Upon confirmation of the nominations, the President shall then “formally”  make or announce the appointments. The President lacks the power to suo motu   appoint the new  service chiefs, effect or “approve changes in  the military high command”, before ( or even after)  “briefing the leadership of the National Assembly” and before “requesting the National Assembly to confirm  the appointments”. No valid or lawful appointment of service chiefs can be made before or until nominations of prospective appointees are first confirmed.

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. These appointments, we hasten to assert, are not like an ordinary employment or probationary appointment that a person is first given, in the Public Service of the Federation, pending confirmation of employment, after a successful and satisfactory completion of the probationary period.

We now turn to the provisions governing certain appointments in the Constitution, and at least one other Act of the National Assembly wherein the words ” subject to confirmation” is used to make the point that no service chief can be appointed as such and be empowered to discharge the functions of that office, as the President has erroneously done, without first being  confirmed as a fit and proper military officer to occupy that office.

S. 86 (1, 2, & 3)  of the Constitution provides that “(1) the Auditor-General for the Federation shall be appointed by the President on the recommendation of the Federal Civil Service Commission subject to confirmation by the Senate; (2) the power to appoint persons to act in the office of the Auditor-General shall vest in the President; (and) (3) except with the sanction of a resolution of the Senate, no person shall act in the office of the Auditor-General for a period exceeding six months.”

S.153(1&2) of the Constitution provides for the ” Establishment of certain Federal Executive Bodies”. The Section states as follows:  “153 (1)- There shall be established for the Federation the following bodies, namely: (a) Code of Conduct Bureau; (b) Council of State; (c) Federal Character Commission; (d) Federal Civil Service Commission; (e) Federal Judicial Service Commission; (f) Independent National Electoral Commission; (g) National Defence Council; (h) National Economic Council; (i) National Judicial Council; (j) National Population Commission; (k) National Security Council; (l) Nigeria Police Council; (m) Police Service Commission; and (n) Revenue Mobilisation Allocation and Fiscal Commission.; 153 (2)- The composition and powers of each body established by subsection (1) of this section are as contained in Part 1 of the Third Schedule to this Constitution.”

S. 154. (1, 2 & 3) of ) of the Constitution then provides as follows: “(1) Except in the case of ex officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established ( under Section 153 quoted above) shall, subject to the provisions of this Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate.; (2) In exercising his powers to appoint a person as Chairman or member of the Council of State or the National Defence Council or the National Security Council, the President shall not be required to obtain the confirmation of the Senate. (3) In exercising his powers to appoint a person as Chairman or member of the Independent National Electoral Commission, National Judicial Council, the Federal Judicial Service Commission or the National Population Commission, the President shall consult the Council of State.”

S. 231 (1&2) of the Constitution covers the appointment of the Chief Justice of Nigeria  (CJN) and Justices of the Supreme Court (JSC). It states (1) The appointment of a person to the office of CJN shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate; (2) The appointment of a person to the office of a JSC shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the senate.  Section 238 (1) of the Constitution covers the appointment of the President Court of Appeal.

It provides that ” the appointment of a person to the office of President of the Court of appeal shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the senate.” Under S. 250 (1) of the Constitution The appointment of a person to the office of Chief Judge of the Federal High Court also has an identical appointment procedure. Also, under the Central Bank of Nigeria Act No. 7, 2007, the Governor and Deputy Governors (of the CBN) shall be  appointed by the President, subject to  confirmation by the Senate on such terms as may be set out in their respective letters of appointment” See S.8 (1) of the CBN Act.

It is inconceivable that a person could first be appointed, “with immediate effect”, to the offices. named in the above cited examples, sworn in and directed  to start discharging the duties of that office before confirmation.

When an appointment is  to be made by the executive arm “subject to confirmation” by the legislature, it is not the case that the appointment is first made and so declared to the whole world  by the executive, intent on foisting a fait accompli on the legislature, and thereafter  a request to endorse or approve of the appointment thus made is  passed to the legislature to supinely rubber-stamp the appointment. Under the Constitution, legislative confirmation is  a condition precedent to an appointment; not an event subsequent to an appointment.

Clear provisions of the Constitution and the law should not  be circumvented or violated, under a pretence of compliance. Executive phobia of legislative hostility or non-cooperation is not a valid reason to outsmart or manipulate  the rule of law and the due process of law.

Even in the midst of the confusion that currently permeates our national security landscape, the twin principles of separation of powers and checks and balances crafted into the Constitution must be held inviolable. While the military must be subordinate to civil authority, provisions of the law ought not be subordinated to the preferences and idiosyncrasies of the President.

Mr. Ogunye, a public interest attorney and legal scholar, is also legal adviser to Premium Times. He writes from Lagos.

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