Law experts have argued that President Muhammadu Buhari is acting in direct confrontation with the Constitution by his insistence in retaining Service Chiefs whose statutory term of office had expired.
Sebastian Hon (SAN) and rights activist, Daniel Makolo argued that neither President Buhari nor any authority has the power to retain public officers, who was due for retirement and had exhausted his term of office.
In a statement on Wednesday, Hon expressed worry over Buhariโs refusal to accede to the National Assemblyโs resolution on the need to sack the current Service Chiefs owning to the worsening security situation in the country.
Hon said: โIn 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 โfrom among serving membersโ of the security body concerned, not those whom the law has deemed to have retired or who are statutorily due for retirement.
โIn 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 โthe armed forces of the Federation as may be established by an Act of the National Assembly.
โNow, this โActโ 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.
โThe subsection also requires such appointees to be โofficersโ of the Army, the Airforce 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.
โAlso, 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.
โIn 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.
โThe National Assembly, qua the Senate, as the custodian of Nigerian Constitution โ as per the Supreme Court in Inakoju vs. Adeleke (2007) All FWLR (Pt. 354) 3 at 123 โ therefore, stood in ferma terra (on firm ground) when it unanimously passed a resolution that Nigeriaโs service chiefs should vacate office.
โNo responsible legislature will sit and watch with nonchalant aloofness how Nigeria is cascading down the cliff, into an avoidable abyss.
โFinally, even though in constitutional jurisprudence, parliamentary or congressional resolutions are not binding on the Executive Arm of Government, they serve at least four fundamental purposes: (a) they pour out the โmindโ of the Legislature; (b) they tell the whole world the Legislature is not part of the โmessโ โ for posterity sake; (c) they galvanise public support for the subject matter; and (d) they send a strong signal to the watching and ever watchful international community about snowballing events in the body polity.
โThe Presidency should, please, be well advised. A stitch in time, they say, saves nine,โ Hon said.
On his part, Makolo argued, in a letter to President Buhari, that the constitutionally stipulated public service period of the current Service Chiefs, as officers in the Armed Forces of Federation of Nigeria, came to an end a long time ago.
Makolo contended that โthe continuous stay in the public service office of the Federation of Nigeria by these gentlemen, as officers of the Nigeria Armed Forces, after the end of their statutory public service period is arbitrary, illegal, immoral, wrongful and unlawful.
โThe public service of the Federation of Nigeria is statutorily designed with specific provisions for entry and exit lawfully.
โThe practice of illegal elongation of the statutory tenure of office of any public officer is counter-productive, demoralising and detrimental to career progression of officers in public service generally with dangerous consequences.
โThe Practice of arbitrary, illegal elongation of statutory tenure of public office occupants sets dangerous precedent for our bureaucracy and national security.
โTenure elongation for public servant with statutorily stipulated period of service is unlawful and therefore illegal, and all actions of such officers after his/her lawful tenure ended; is or are not only voidable, but are in fact null and void.
โNo citizen, officer or office, not even yours (the Presidentโs), has the legal powers under our laws in Nigeria to extend the statutory tenure of any public servant, no matter, and however industrious such officer maybe.
โThese officers are not the only Nigerian citizens of trust in the Armed Forces of Nigeria. They should and must proceed on their retirement immediately like all other Nigerian citizens enrolled into the armed forces of Nigeria at the same time, by the same organisation, under the same condition of service with them as public servants.
โWhatever action taken in office after their stipulated statutory period of service in the Armed Forces of Nigeria are null, including deployment of the lowest ranking Armed Forces men and officers, not even their driver or any of their personal staff.
โAny action is arbitrary, illegal, null and void in the eyes of our laws in Nigeria today. They lack the requisite legal authority to approve any payment or disbursement of any amount of money.
โSuch disbursements are illegal and must be refunded back to the coffer of the Armed Forces. They no longer have the powers to perform any of such duties for the Federal Government of Nigeria.
โTheir (the Service Chiefs) continued stay in office in the same capacity, amounts to a violation of the Constitution of Nigeria with impunity, which is undermining the moral of the serving officers with dangerous consequences on the national security of our fragile nation,โ Makolo said.
