President Buhari and Unlawful Appointments By Onikepo Braithwaite

I received several telephone calls, asking about my opinion on some of the recent occurrences which have taken place in our land, and why I have made no comment. My response has been that most of the issues which are occupying the front burner today, have happened before in recent times, or we have had comparable/similar occurrences, and I had commented on them in the past; so why become repetitive? The standard reply to my response is, Government is obviously not listening; if it was, the same knotty issues wouldn’t be reoccurring, and therefore, we must not relent in commenting until we get the appropriate response from Government.

The IG

Recently, the President extended the tenure of retired Inspector General of Police (IG), Mohammed Adamu, for a period of three months. One of the reasons given to Nigerians for this unlawful action, was that Government required some time to set the wheels of selecting a new IG, in motion. Was it a surprise that IG Adamu’s time was up, when the date of his enlistment into the Nigeria Police Force was known to all, especially those who appointed him as IG in the first place? Why didn’t the President and the Nigeria Police Council (NPC) perform their constitutional duty to appoint a new IG timeously, after all, it wasn’t as if they were going to Pluto or Mars to pick a new IG – the selection would be made from the rank of Assistant Inspector General of Police (AIG) by virtue of Section 7(2) of the new Police Act 2020 (PA20). But, as they had failed to appoint a new IG, why couldn’t someone else have been appointed in an acting capacity, while the selection process for a new IG is underway, so that Government would remain on the right-side of the law?

A similar issue had arisen early in 2019 when the erstwhile IG, Ibrahim Idris, was due for retirement on January 3, 2019 having served 35 years on the Nigeria Police Force, with his 60th birthday also coming up on January 15, 2019, and there were rumours that his tenure would be extended. I made several submissions on the issue.

In my editorial of 1/1/2019 titled “Time Up for IGP Ibrahim Idris”, I said:

“There is no provision in the Constitution, for the extension of tenure of the IG past the retirement age. The Nigeria Police’s governing body is the Ministry of Interior, and therefore, the Police does not qualify as an extra-ministerial body, whose head can serve at the pleasure of the President, in any event, such pleasure ceasing when the President ceases to hold office (Section 171(2)(d) and Section 171(6) of the Constitution).

“The question is whether the Executive will do the right thing or whether in its typical manner, act contrary to the provisions of the law. Come to think of it, it is not in the place of the Executive to do anything. By now, the Nigeria Police Force should have concluded plans for a grand passing out parade ceremony for the IG.

“It is obvious that, the Nigeria Police Council (NPC), which comprises of the President, the Governors, the Chairman of the Police Commission, and the IG, has gone to sleep. One of the duties of the NPC is to oversee the operations of the Police, but even with the complaints of Nigerians, killings in Benue, the failure of the IG to relocate to Benue State at the height of the crisis as instructed by the President, the NPC was completely silent. Nigerians hope that this time around, the NPC will play its constitutional role as provided by Section 215(1)(a) of the Constitution, and actually properly advice the President on the choice of a new competent IG, taking into consideration the state of Nigeria’s security”.

At the time, the outdated Police Act 1943 (PA43) was still in force, and it was somewhat silent on the issue. In my editorial of 8/1/2019: “Amina, Dino, Etcetera, Etcetera! “, this is what I said:

“It seems that the 35 years meritorious service of the Inspector General of Police (IG), expired on January 3. His 60th birthday is a week away. I did some further research on the retirement of the IG. Though the Police Act is silent on the issue, by virtue of the Interpretation Clause of the Constitution, Section 318(c) the Police is an authority established for the Federation by the Constitution (Sections 214(1) and 215(1)) and the IG, as a member of staff of such an institution, qualifies as a public servant. Rule No. 020810 of the Federal Public Service Rules 2009 provides that, the compulsory retirement age for all grades of officers in the Federal Public Service is 60 years or in the alternative, 35 years of service, whichever comes first. The definition of ‘compulsory’ is “required by law or a rule; obligatory”. Other synonyms for the word ‘compulsory’ include obligatory, mandatory, and statutory – meaning that the IG’s time became up on January 3, 2019.

“Again, this is another golden opportunity, for this Government to show that it has decided to turn over a new leaf, by starting to respect the rule of law – the President on the advice of the Nigeria Police Council, should appoint a new IG forthwith”.

It is obvious that on the basis of the foregoing, under PA43, the tenure of an IG who has attained the age of 60 or 35 years in the Nigeria Police Force (whichever comes first), cannot be extended by the President. But, since then, the PA43 has been replaced by the PA20 which was signed into law in September, 2020. Unlike the PA43, Section 18(8) of PA20 is clear and unequivocal, mirroring Rule No. 020810 of the Federal Public Service Rules 2009 about retirement age and years of service; while Section 7(6) of PA20 provides that the IG shall hold office for four years.

Section 7(6) is not subject to Section 18(8), they are both stand-alone provisions of PA20. Just as Section 7(6) uses the word ‘shall’, so also does Section 18(8). See Ishola v Ajiboye 1994 6 N.W.L.R. Part 352 Page 506 per Rhodes-Vivour J.CA. (as he then was); Ibrahim & Ors v Akinrinsola 2010 LPELR-4144 (CA) on the definition of ‘shall’, which in law means, ‘must’. Could Section 7(6) of PA20 be the grey area or loophole which the President grabbed as the leeway to extend the IG’s tenure? The answer to that question would be a resounding no, because when IG Adamu was appointed, the PA43 was the law in force, and consequently, that is what is applicable to him and his appointment, not the PA20. If IG Adamu was appointed under PA20, it could have been argued possibly that he was appointed from the rank of AIG, he has not completed his tenure yet, having done only about two years, and Section 7(6) is categorical.

Or could one assume that, an individual being considered for the position of IG, apart from Section 7(2) PA20 which mandates inter alia, that the candidate must be at least the rank of an AIG, must also have at least a clear four years of service left, in order to to qualify for the position and be able to complete the tenure? Knowing that the issue of the IG’s tenure has been a regular source of controversy, this aspect should have been included in PA20, that is, a proviso that any AIG being considered for the position of IG, must have the requisite number of years to complete the four year tenure, laying to rest this room for unnecessary controversy. After over 20 years of uninterrupted democracy, with all the experience that we have garnered so far, the legislature should not be amending and drawing laws that give room for similar and additional disputes. I would imagine that the essence of amending a law is to improve it, and eliminate the bones of contention previously contained therein.

EFCC Chairman

Again, the issue of the nominee for the position of the Chairman of the Economic and Financial Crimes Commission (EFCC), is another matter arising. That, contrary to Section 2(1)(a)(ii) of the EFCC (Establishment, Etc) Act 2004, the President’s nominee, 40 year old Abdulrasheed Bawa, does not qualify for the position. We went through the debate as to whether Ibrahim Magu could act as EFCC Chairman forever, just a few years ago, and I considered the issue extensively. With so much controversy trailing the former EFCC Acting Chairman, Government has created yet another one in the President’s choice of Bawa. Could a less contentious choice not be made from those who are qualified for the job if Bawa is unqualified, especially as questions have already been raised as to his credibility? The bedrock of President Buhari’s election campaign, is the fight against corruption. It is already a global embarrassment that the erstwhile EFCC Acting Chairman is himself facing corruption allegations, when he was supposed to be spearheading the fight against corruption. Do we really need this kind of controversy at the EFCC, if this Government wants to be taken seriously with regard to this fight against corruption? I think not. I do like the idea that a young man was nominated instead of all the old ‘foggies’ we are used to; let’s wait and see whether Mr Bawa is deserving of the job, and what the outcome of the Senate Confirmation exercise will be.

Court of Appeal Justices

Similarly, there is a new controversy raging in our own primary constituency – the appointment of Court of Appeal Justices, and the allegation that the list of candidates meticulously drawn up by the President of the Court of Appeal, Honourable Justice Monica Dongban-Mensem (PCA) based on the Court’s requirements, expertise, merit etc, has been jettisoned by the Federal Judicial Service Commission (FJSC) in favour of Politicians’ cronies etc. That our country is divided on ethnic and religious lines, is no longer news. Hence, it’s no surprise that the first allegation against the FJSC list is that, for example, there are no Northern Christian nominees included on it.

This is a dangerous trend, if it is allowed to sail through, and it is the hope of many members of the legal profession and indeed, the society, that the NJC reconsiders the list of the PCA. The courts are said to be the last hope of the common man. How does the common man get justice, if those who are administering same are loyal to their APC sponsors? It is obvious who such Justices may decide in favour of, should they be involved in deciding matters like election petitions. This defeats the purpose of one of the basic principles of justice, that is, ‘fair adjudication between competing claims’. For one, we are all aware that the courts’ dockets are usually full of election petitions and other related matters. Nigeria is not like America, where Justices who were appointed by Donald Trump did not uphold his spurious election malpractice allegations, just to prove their loyalty to him. The cases were decided strictly on their merits. Again, jettisoning expertise predominantly for those who may have much lesser knowledge, will obviously result in impeachable decisions being handed down. This will certainly be an undesirable outcome, especially if we are sincere about building a stronger Judiciary.

This is a golden opportunity for the NJC to improve the quality of the Judiciary, by considering the available lists and doing their own proper findings, before a final decision is made, instead of simply accepting a list which may be flawed. My dear colleagues, what is your opinion on this matter?

PDP is No Different

Why is it that, successive Nigerian Governments (present company very much included) have always taken great delight in making controversial decisions, which are clearly unlawful, yet they expect Nigerians to be law-abiding? The opposition PDP which has decried the IG’s tenure extension, is no better than the APC in that regard, and they do not have any moral justification to protest. They should have left others like civil society organisations, to be the ones to make the objection. Coming from the PDP, even though the objection has merit, it is highly hypocritical.

We have certainly not forgotten when late President Umaru Yar’Adua was airlifted, or rather, spirited away in November 2009 for medical treatment, and was clearly no longer able to function as President; none of the options available in Section 144 of the Constitution (to declare him incapable of functioning as President etc) or Section 145 (transmission of a written declaration that then Vice President Goodluck Jonathan should perform the functions of President as Acting President) were employed. Vice President Jonathan did not become Acting President till February 2010. In fact, Nigerians do not know when President Yar’Adua died, we only know when his death was announced in May 2010! An extremely ridiculous and embarrassing charade was put on, to convince Nigerians that he was still alive. And, when the PDP/Government finally announced his death, contrary to Section 146(1) of the Constitution which clearly provides inter alia that, if the position of President becomes vacant by reason of death, the Vice President shall hold the office of President to the end of the tenure, educated high ranking members of the PDP actually suggested that since the Presidential slot had been zoned to the North, a Northerner, and not Goodluck Jonathan should assume the position of President Yar’Adua!

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