Lawyers divided over NASS call for service chiefs’ sack

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    Some senior legal practitioners have expressed divergent views over President Muhammadu Buhari’s rejection of the resolution by the National Assembly asking for the service chiefs’ sack, or for them to step aside, over rising insecurity in the country. While some were of the opinion that the President should heed the call of the lawmakers, others say he is not under any obligation to follow their resolution. It’s the President’s prerogative, but… —Layi Babatunde(SAN) While constitutionally, it is the prerogative of the President and Commander-in-Chief of the Armed Forces to appoint or disengage the service chiefs, he ideally should not lightly dismiss with a wave of the hand, the views of the National Assemly, given that their collective views expressed in a resolution presumably represents or approximates the views of their constituents nationwide. The voice of the legislature is the expression of the wish of the Nigerian people as it were. Its opinion on such an issue of grave national importance deserves serious consideration on the merits. ALSO READ: Cookey-Gam faults Buratai on insurgency comment, advocates synergy with security experts NASS resolutions are not justiciable —Lawal Pedro(SAN) I have observed that Nigerians, outside government most of the times, misunderstand the role and power of each arm of government and misapprehend resolutions passed by the legislative arm of government, which is a mere recommendation or advice that is not justiciable. Some legislators also do not help matters when in their presentations or interviews will refer to the executive arm of government or Presidency as Federal Government, as if the National Assembly is not part of the Federal Government. Therefore, the presidency as the executive arm of government has the right to reject any resolution of the National Assembly considered to have been made without full knowledge or in ignorance of certain vital facts relating to the subject of the resolution. This should not be regarded as the Presidency undermining the National Assembly or no love lost between the two arms of the same government. The same Presidency has had cause to accept and comply with other resolutions of the National Assembly in the past. That is how the presidential system of government works; both arms of government need not agree at all times. Executive have little respect for National Assembly —Sebastine Hons(SAN) Recent events in the body polity have shown that the executive arm of government is showing scant respect to the National Assembly. While I will not comment on the others, which stink uncontrollably, I must say that the reaction of the Presidency to the resolution by the Senate for the service chiefs to vacate office is most unfortunate and insensitive. In the first place, even though the practice of some Nigerian presidents, not just President Buhari, is to extend the retirement of certain public officers, including military and police chiefs, this practice is unconstitutional, null and void. Sections 215 and 218 of the 1999 Constitution, as amended, have permitted the President or the Police Council (in respect of the Inspector-General of Police) to appoint service and police chiefs to head our security departments “from among serving members” of the security body concerned, not those whom the law has deemed to have retired or who are statutorily due for retirement. In respect of the police, Section 215(1)(a) of the Constitution is very clear on this. In respect of the military service chiefs, Section 218(2) of the Constitution has empowered the President to appoint them from among the branches of “the armed forces of the Federation as may be established by an Act of the National Assembly”. Now, this “Act” mentioned in the Constitution is the Armed Forces Act, 2004. Section 18(1) of this Act stipulates that the President can only appoint the Chiefs of Army, Air and Navy Staff: (a) after consultation with the Chief of Defence Staff; and (b) subject to confirmation by the National Assembly. The subsection also requires such appointees to be “officers” of the Army, the Air Force or the Navy, as the case may be. Again, there is no room for appointment of officers who, statutorily, are supposed to have left office on retirement. Also, public officers appointed to such highly sensitive offices are supposed to produce desired results, without which they are not supposed to stay any minute further on their seats, even when their retirement ages are yet to mature. In this particular case, countless number of soldiers are being killed by insurgents and bandits; hundreds are deserting their formations; hundreds are voluntarily retiring; thousands are reportedly suffering from low morale, etc, with the attendant civilian losses of unimaginable scales. The National Assembly qua the Senate, as the custodian of Nigerian Constitution— as per the Supreme Court in Inakoju vs. Adeleke (2007) All FWLR (Pt. 354) 3 at 123 — therefore, stood in ferma terra (on firm ground) when it unanimously passed a resolution that Nigeria’s service chiefs should vacate office. No responsible legislature will sit and watch with nonchalant aloofness how Nigeria is cascading down the cliff, into an avoidable abyss. National Assembly’s call in order —Femi Falana(SAN) The call of the National Assembly is in order. It is in the national interest. The Presidency’s statement that the appointment is within the prerogative of the President is misleading. In Keyamo v The President, it was held by the Federal High Court that by virtue of Section of 218 of the Constitution service chiefs cannot be appointed by the President without the concurrence of the National Assembly. It follows that their tenure cannot be extended by the President without the same legislative endorsement. The mistake made by the National Assembly was that the extension of the tenure of the service chiefs by the President was not challenged. If the President ignores the patriotic resolution of the national assembly, the legislators should seek legal redress in the Supreme Court. Presidency’s reaction unfortunate —Monday Ubani The Presidency’s reaction is shocking and unfortunate. Nobody is contesting the President’s power to appoint and remove these security chiefs, but the clear point, which over 80 percent Nigerians agree with, is that their performance is below expectations and they need to be replaced for fresher ideas to be injected in the insecurity fight in Nigeria. It’s system challenge —Malachy Ugwummadu The National Assembly, like the executive including the judiciary, constitutes the present government. The rejection of the duly-passed resolution of NASS by the Presidency further exposes the lack of proper communication and coordination of the affairs government. It’s similar and reminiscent of the rejections of Mr. President’s nominees, including Mr. Magu, by the Senate based on the report of the DSS which is one of the agencies of the executive that reports directly to the President. Although the call for the removal of the service chiefs has been long, but we must remember how they managed to turn the tide of the war against terror in Nigeria between 2015 and 2016. Besides, the bigger question is whether the changes sought in the service chiefs will end the insecurity? My sincere answer is no. What we know is that it’s a system challenge. No doubt, the morale of the fighting soldiers may be improved, but Defence and the Army have received the highest budgetary allowances in the last decade. Thus, it’s much more than that. The law, as it presently stands, doesn’t limit the power of the President to remove them after a period of time. It’s the responsibility of the NASS to check the excesses. It’s the President’s call, but… —Kabir Akingbolu Without mincing words, although the appointments of service chiefs are subject to confirmation by the Senate, the constitutional power to retain or remove them rests squarely on the President and this is his exclusive preserve under the law. The reasons for this are many, but chief among them are the fact that the President is also the Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria and to that extent, he it is who knows the basis or parametres of assessing them as their appointor and the chief executive officer of the federation. So if in his view or assessment they have done well, there is nothing anybody can do about it than to advance convincing argument for him to see reasons why he must change them. If he listens to such an advice, goodluck. But if he fails to, there is nothing anyone can do. Although the National Assembly has passed a resolution asking the President to relieve them of their posts, I submit with profound respect that such resolutions are mere expression of wishes and nothing more. This is because resolution of the legislators are merely directory and not binding on the executive in that by its very nature, legislative resolutions are mere advice, strictu sense. So if it is not obeyed, the executive cannot be said to have committed a legal faux pax. Having said that, I think the resolution of the legislators on the removal of the service chiefs was well founded. This is because the resolution is in tandem with the thinking or beliefs of every Nigerian who loves peace. It must be seen in the right context —Ben Obidegwu In the strict legal perspective, a Senate resolution has no effect on the removal of service chiefs. Section 218 of the 1999 Constitution (as amended), and Section 18 of the Armed Forces Act, in their combined effect, vest the President with the power to appoint the service chiefs, albeit subject to confirmation and approval by the National Assembly. That is for appointment. But the service chiefs hold office at the pleasure of the President as their removal is not also subject to confirmation of or prior consultation with the National Assembly. But this Senate resolution has to be construed in the right context. It says the service chiefs should resign or be sacked. To the best of my understanding, the resolution is merely advisory, calling on the service chiefs to resign, and giving a pointer to President Buhari to sack them if they fail to do so. Therefore, the Senate, to the extent that it only meant to advise and recommend, did not overstep its bound. The duty is then on Mr. President to consider the basis of the legislators’ stance — namely growing insecurity, and the need for a change in the nation’s top security apparatus, and act accordingly.

     

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