Take time to read Nigeria Constitution and stop ethnically and regional debate on rule of law. 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.
Posted on: Sun, 19 Jan 2014 01:30:44 +0000
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