By SIMON EBEGBULEM, BENIN CITY
Brig. General Don Idada Ikponmwen is the ex-Provost Marshal of the Nigerian Army and also its former Director, Legal Services.
Idada, who has been involved in several legal battles in the Army, including the prosecution of three Admirals over the missing MP Africa ship in 2003, expressed shock over the Federal High Court’s recent declaration which stripped the President of the sole power to appoint Service Chiefs in the Armed Forces.
As an expert on the nation’s constitution and military laws, Idada noted that the declaration would not stand the test of time, just as he projected that if applied, it would politicise the Armed Forces and threaten the security of the nation.
What is your take on the recent judgment by the Federal High Court that stripped the President of the power to appoint Service Chiefs?
I was completely dismayed with such a declaration because it tends to turn the constitution upside down.
It was even more shocking that the court agreed with the argument that the Armed Forces Act, which was first enacted during the military administration of General Abdulsalami Abubakar and was a replica of the 1993 Armed Forces Decree, was declared to be a law not in the category of the existing laws in Nigeria. I think these are shocking declarations, and the least I can say is that I found it very disappointing and the decision cannot stand the test of time.
I don’t think we have seen the end of the matter. My worry is that many people, especially those who would not take the pain to read the constitution in all its ramifications – both those living in Nigeria and outside – may just get the impression that it is the position of our constitution.
I feel very disappointed about that judgment, and I think this is one of the reasons some people believe there is so much corruption, lack of thoroughness, lack of expertise amongst some of our Judges.
But what makes you feel the court was wrong in its judgment?
The provisions of our constitution with regard to the powers of the President in terms of appointments to high public offices including that of the service chiefs are very clear. Wherever the constitution intended to have conditions placed on the President like the need to consult, have a nomination from certain existing bodies or the need for confirmation from the Senate, it is very clear on those points.
Even a casual look at the provisions of Section 147 dealing with the appointment of Ministers, the provision of Sections 230 and 238 will show that the constitution is not silent on the conditions necessary to appoint high officials to Federal executive positions. Section 147 in particular, which deals with the appointment of Ministers, made it clear that confirmation by the Senate is a pre-requisite.
Nobody becomes a Minister unless the Senate has approved the nomination. The same way with the appointment of the Chief Justice of the Federation. Section 230, sub section 1 requires not only that there will be a nomination from the Judicial Service Commission, but also that the nomination made by the President must be sent to the Senate for approval and confirmation. Same applies to the appointment of the President of the Court of Appeal.
On the nature of our Presidency, Section 130(1) says “There shall be for the Federation a President” and proceeds to add in 130(2) that “The President shall be the Head of State, The Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation.” On the strength of these provisions, it is clear that the President is not a mere figure-head or ceremonial President.
Added to this is the fact that he is elected from all the constituencies of the Federation and is thereby vested with grassroots support, which is greater than the mandate of all legislators put together.
Sections 133 and 134 of the Constitution explain the power exercisable by the President and Commander-In-Chief. Section 218(1) says “The Power of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the Armed Forces of the Federation” The provision that is directly relevant to the question of appointment of the Service Chiefs is Section 218(2) which says “The power 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.”
From the foregoing, it is clear that the power vested in the President to appoint Service Chiefs is in no way fettered.
If the Constitution had intended to place any restriction or condition, it would have said so unequivocally as it has done with regard to other positions created by the Constitution; for example Sections 230(1) relating to the Chief Justice and Justices of the Supreme Court of the Federation and the President of the Court of Appeal.
In all these sections, the Constitution, in no uncertain terms, spells out when either consultation with Council of States or nomination from some other bodies or confirmation of the Senate is required.
Section 218(2) is therefore unambiguous and does not lend itself open to any unwarranted debate or academic exercise.
Section 154(1) provides, in general terms, that the appointment to the above listed positions shall need the confirmation of the Senate in deserving and specific positions; whereas section 154(2) proceeds to specify where confirmation shall not be required.
Such positions not needing the confirmation of the Senate include: the Council of State, National Defense Council or the National Security Council. Section 154(3) states clearly that in the appointment of persons to the position of chairman/members of the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission and the National Population Commission, the President shall be required to consult the Council of State and no more.
From these provisions and others earlier cited, it becomes obvious, on invocation of the doctrine of expressio unius exclusio alterius, that it is improper to drag in the requirement of confirmation from the Senate or even consultation with any other body for the appointment of Service Chiefs in the Federation of Nigeria. Having come this far, it becomes necessary to take a look at the existing laws to see whether, indeed, the relevant portions of the AFA are in consonance with the Constitution.
What about the issue of existing laws?
In its ordinary meaning, the concept of existing law carries the meaning of any law, any enactment or instrument whatsoever which was in force before the promulgation of the Constitution.
The Armed Forces Act, which was first enacted as Armed Forces Decree (1993) during the military era, existed before the promulgation of the 1999 Constitution. The fact that CAP A20, Laws of the Federation of Nigeria (2004) altered the name of that law with little or no modification does not take that law outside the scope of existing Laws under the 1999 Constitution.
It is noteworthy that unlike the NYSC Decree 1993, the Public Complaints Commission Act, the National Security Agency Act and the Land Use Act, the Armed forces Decree/Act was not listed as one of the laws to be carried over in 1999 so as to enjoy the status of Constitutional provisions.
On the strength of both section 315(2) and 1(3) of the Constitution which is the supremacy clause, the aforementioned provisions of the Armed Forces Act, in so far as they are not consistent with the provision of section 218(2), must be null and void to the extent of the inconsistency.
Section 1(3) provides that “If any other law is inconsistent with the provisions of the constitution, the constitution shall prevail and that other law, shall, to the extent of the inconsistency, be void”. Whereas section 218(2) empowers the President to appoint his Service Chiefs at his discretion, the Armed Forces Act, which, on the contrary, places restrictions on the exercise of the same power vide section 18(1) and (2) of the AFA, makes the latter clearly inconsistent with the Constitution.
I am not aware of the provision of section 218(4) (a) and (b) which provides that the National Assembly shall make laws for the regulation of the powers exercisable by the President as the Commander-in-Chief of the Armed Forces and for the appointment and disciplinary control of members of the Armed Forces of the Federation.
It is seriously contended that the provisions in section 218(4) (a) and (b) are general provisions aimed at ensuring that laws are made to guide against arbitrariness and abuse of power.
While pointing out that even the National Assembly has never made any such regulatory laws, it must be emphasised that the general provisions in section 218(4) cannot override the specific power granted the President in the same Section to appoint Service Chiefs without any restraint.
We practised the presidential system from 1979, then there was a military administration again. If you add Shagari’s regime to the regimes we have had after Abdulsalami handed over to civilians, you have a total of 18 years that we have practised the presidential system wherein the National Assembly is expected to pass laws to regulate the powers of the president in his exercise of powers as Commander of the Armed Forces. But there has never been such a law.
So the discretion of the President is the law as far as appointment is concerned. However, because the president is a politician, his powers need to be regulated in terms of the use of the Armed Forces. That is the area that should be of concern to the National Assembly.
But the National Assembly has not even passed a single law in all these years. From the foregoing analysis, the provisions of sections 218(4) (a), (b) and 219 cannot constitute any justification to deny the President the discretion availed him by the same Constitution with regard to the appointment of Service Chiefs.
What about politicising the appointment of Service Chiefs ?
The declaration to the effect that the President cannot appoint his Service Chiefs without the confirmation of the Senate is manifestly wrong and dangerous for our nation as it will, inevitably, lead to negation of discipline, coherence in command and control of the Armed Forces which are predicated upon the existence of a unified Command.
The issue of Command of the Armed Forces is a very serious ,professional military issue which has very serious implications for the efficiency, efficacy and virility of the Armed Forces. Let me emphasise that the efficiency of the Armed Forces thrives on what we call Unity of Command.
Discipline, promotion, deployment, everything that has to do with the Armed forces must come under a unified Command where there can be no ambiguities, no conflicts as to responsibility, and this must be so because of strategic reasons.
The moment you divide Command in the Armed Forces, you divide loyalty and loyalty is supposed to be 100 per cent to the Command of the Armed Forces. The Command of the Armed Forces revolves around the Commander in Chief and officers commissioned into the Armed Forces that hold positions from time to time.
The moment you break or negate this unity of Command, you don’t have an army. You will have a bunch of people who, for selfish reasons, are running from pillar to post, from senator to senator, trying to butter their own bread.
Therefore, you cannot afford to make appointments in the Armed Forces an all- comers affair, and when I say ‘all comers’ in this respect it includes the National Assembly. The duty of the National Assembly is to make laws, conduct their oversight functions and regulate.
An attempt has also been made to highlight that a substantial part of the reason for the collapse of the First Republic was the absence of a powerful and clearly discernable leader, and that this phenomenon accounted for the choice of a Presidential system.
In the same breath, the point has been emphasised that the Command and control of the Armed Forces must not be allowed to be compromised on the altar of politics. This compromise would inevitably arise when the Command of the Armed Forces, particularly in terms of appointment, becomes an issue for the National Assembly.
But don’t you think this will make the President dictatorial?
Very good question. Let me tell you that where we are today, by virtue of the type of constitution or the system we are running, is not by accident.
This country was used to a parliamentary system of government for many years – both before and after Independence, particularly after Independence. We were running a Westminster type of government for five years before the military struck and pulled down the first Republic. What was the reason?
I want to emphasise that one of the reasons why the parliamentary system was dumped in this country is because it was too amorphous, cumbersome, it lacked an identifiable leader who commanded the followership and support of the generality of Nigerians. It lacked grassroot support. It was bedevilled by the concept of collective responsibility.
That is why Nigeria opted in 1979 for a President that will be powerful, who can make quick decisions, consult when it is necessary. So the President is deliberately a powerful man by our structure.
But that is not the end of the story. That is why you find Section 218, sub section 4 talking about powers to regulate that of the President. The National Assembly is supposed to use its laws to regulate such powers, but like I said before, no such regulations have been made.
In other words, the President, by default of the National Assembly, remains a man whose executive powers are not restricted to just the appointment of Service Chiefs, but the entire Armed Forces are at his discretion.