The judgment 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.”

So many Nigerians are happy that President Muhammadu Buhari has finally dropped the long awaited service chiefs, who have outlived their stay in office, and even blatantly refused to humble themselves and honourably resign and probably give other officers to step into their shoes. This was not done until Mr. President gave them red card, which ordinarily Mr. President should have done  long ago but  refused to do so for reasons best known to know. Two days ago,  he saw the need to appointed new Service Chiefs and gave the failed old ones accolades they deserve not.

The issue now is whether Mr. President has the sole power to appoint Service Chiefs and they can start operations without confirmation from the Senate, just as the case of Ibrahim Magu who was the Chairman of EFCC without Senate confirmation. In this commentary. A senior Advocate of Nigeria, (SAN) and Human Rights Activist, Chief (Dr) Mike Ozekhome looks at the issues at hand, as he writes from Abuja:

Ozekhome, SAN

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. In spite 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.

Position of the law as regards to the appointments of Service Chiefs

Section 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”.

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 judgment was never appealed against. The judgment 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 judgment 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).

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.

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By afrikanwatchngr@gmail.com

As a digital innovative media outfit, that is equipping its capacity with Artificial intelligence (AI) and daily happening around the globe, Afrikanwatch Network continues on the part of capacity through the its operations. Afrikanwatch was initially mcnextafrica intellectual property, until in 2017, where it modified it to Afrikanwatch Media. By 2018, it saw the need to remodify the name again to Afrikanwatch Network Communications, having expanded its coat of operations , including media consultancy and training. So far, the online news outfit provide services such as general news across board, digital publishing, communication strategy, journalism, profiling/editing, autobiography and biography writing, event coverage/live streaming, cinematography, production of synethetic photobooks, event planning and management, cyber-security ICT consultancy,Digital marketing and trainings Interestingly, all Afrikanwatch crew are experts, the editor-in-Chief, Mark Orgu, is a strategic and creative bubbling journalist, full of ideas and innovation. Sam Igiebor, is the Online special editor, who has managed the branding of the news outfit since 2015. He is also an advanced cinematographer with track records of excellence and service delivery. Innocent Samuel, is the Deputy online Editor, maintaining the site of the media outfit and providing technical support on the site. He is a trained computer expert with a certified certificate on cyber security abroad. Chidera Eke, is the acting head, News/Strategic Communications, a very committed and intelligent young lady with patriotic gesture to task and duty. Richard Ibu, is the Afrikanwatch administrative head of planning and execution, Sunny Atam, is the Afrikanwatch senior Consultant on new Media development and strategies, Ifeoma Njoga, is the administrative secretary, whose prowess has continued to give the news outfit commendations. Barr. Festus Ejike Nwafor, is the Abuja consultant and Deputy legal adviser while Mr. Gbenga Ojo is the Abuja correspondent. Mr. Seun Shode is the head, Design and printing, whose skills has remained a reference point in most of Afrikanwatch publications and jobs. Afrikanwatch Network has been able surround itself with men and women of values, who continued to play advisory editorial roles, they include, Mr. Joe Ejiofor, Deputy Registrar, Yaba College of Technology, Dr. Oby Modebelu, of the University of Lagos, Ms. Buchi Odiatu, a motivational speaker, who is instrumental to the establishment of Afrikanwatch as a full blown media outfit, Philip Eju, a Nigerian-Mauritian base Engineer, and Engr. Isaac Eju. They have continued to provide administrative support and conflict resolution among the crew. The media outfit grandmentors and Patrons including, Sen. Athony Adefuye, Prince Lateef Fagbemi, SAN, Prof. Olatunde Babawale, Prof. Timothy Atte, Prof. Andrew Obafemi, Prof. Solomon Akinboye, Dr. (Mrs) Felicia Agubata, Mrs. A.S. Anyafulu, Amb. Chief (Dr) Nzeribe Okegbue JP, Amb. (Dr) David Eke Solomon, Mr. Sam Omatseye, Chief (Barr) Benson Ndakara, Chief (Dr) Sunday Ovba, Mr. Dennis Amachree, MON, Dr. Kabir Adamu, Engr. Williams Metieh, Col. Barr. Yomi Dare rtd among others. These personalities continue to play vital roles towards the growth and development of Afrikanwatch Network. ADVISORY BOARD 1. Amb. Chief Nzeribe Okegbue Ph.D, JP, (Chairman) 2. Prof. Solomon Akinboye (Member) 3. Prof. Andrew Obafemi 4. Mr. Dennis Amachree, MON 5. Dr. Kabir Adamu 6. Dr. (Mrs) Obiageli Modebeli 7. Engr.( Mrs) Felicia Agubata, Ph.D

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