Mr. Sebastine Hon (SAN), a constitutional lawyer, and an Abuja-based plastic surgeon, Dr. Torngee Malu have expressed opposing views over President Muhammadu Buhari’s continued extension of service period of Service Chiefs.
It would be recalled that the Senate had recently in a resolution called on Service Chiefs to voluntarily resign as the nation’s security situation plummeted, an action the presidency deployed.
Hon, who described the presidency’s reaction as “disrespect” to the National Assembly said, “recent events in the body polity have shown that the Executive arm of government is showing scant respect for the National Assembly.”
He said: “The reaction of the presidency to the resolution by the Senate for the Service Chiefs to vacate office is most unfortunate and insensitive.”
According to him, even though the practice of some Nigerian Presidents, not just President Buhari, had been to extend the service period of certain public officers, including military and police chiefs, this practice was unconstitutional, null and void.
He said, “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 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.”
He stated further that public officers appointed to such highly sensitive offices were 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.
He stressed: “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 and so on, 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 non-challant aloofness how Nigeria is cascading down the cliff, into an avoidable abyss.
“The spokesman of Mr. President, Mr. Femi Adesina, did not therefore act in the interest of Nigerians, and was particularly insensitive, when, instead of advising the President to do the needful, raged about the appointing powers of Mr. President.
“Is Mr. President no more answerable to Nigerians in general, and particularly the National Assembly, which has powers of impeachment? Or is he suggesting that Mr. President is so obsessed with his appointing powers that he has scant care about the sufferings of Nigerians.”
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He maintained that most of the National Assembly members belong to the president’s political party, the APC, and that from inception, they had to the chagrin and shock of Nigerians, pledged their ‘loyalty’ to the President.
“For them to summon courage to voice out this resolution should send some message that not only are things no more flowing in the same direction, but that they are being realistic and honest, given the scary happenings in their fatherland.
“Finally, 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 ‘mind’ of the Legislature; (b) they tell the whole world the Legislature is not part of the ‘mess’ – 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.
“The Presidency should, please, be well advised. A stitch in time, they say, saves nine,” he stated.
Malu, an Abuja based and Stuttgart, Germany trained plastic surgeon, stated that though the Senate acted out of genuine concern for the security and safety of Nigerians, its recommendation appears a bit harsh and seem to undermine the powers of the presidency.
He said: “In this case, the President is obviously the one who nominated these people to the Senate for confirmation and the Senate actually confirmed them. Now, the non-performance of the Service Chiefs because of insecurity in the country, is alarming.
“I completely understand why the senate would feel that they are not doing their jobs. But, that’s why we have the rule of law.
“And the Senate has its own way of passing that message, that it is not satisfied with the performances of the Service Chiefs. And one of them is to pass a vote of no confidence.
“Now, that vote of no confidence is an indictment of the Service Chiefs. That vote of no confidence is again a message to the presidency. The presidency can now use their own judgement to remove or put more pressure on the Service Chiefs to perform.
“But in sending a recommendation that the Service Chiefs be dismissed, I think that appears a bit harsh and an undermining of the presidency.
“If the presidency takes that action in response to the recommendation of the Senate for dismissal, it would appear as if the president doesn’t know his duties. It will appear as if the Senate is higher than the presidency.
“Meanwhile, they are co-equal arms of government. And the duty of appointing or sacking is in the custody of the president. In this case, I think the Senate intention is good, but the approach is faulty.
“The way the Senate passed the message is too forceful, you don’t force the Executive to take action just like the Executive arm cannot force the Judiciary or the Legislative arms to take action.”
He noted further that “Those actions are taken independently and with the confirmation, approval or disapproval of the other. This is my opinion, that the Senate has a point, not just the Senate, but the entire Nigerians are completely dissatisfied with the actions of the Service Chiefs,” he said.