The judgment, which was delivered by Justice Adamu Bello on July 2, 2013, stated that it was mandatory for the President to obtain the confirmation of the National Assembly for the appointment of the service chiefs.
But the President, who on Tuesday appointed service chiefs including the Chief of Defence Staff, Major General Lucky Irabor; the Chief of Army Staff, Major General Ibrahim Attahiru; the Chief of Naval Staff, Rear Admiral A.Z Gambo, and the Chief of Air Staff, Air-Vice Marshal Isiaka Amao, did not seek the National Assembly’s approval.
The PUNCH also gathered that Buhari had no intention of sending the names of the service chiefs to the National Assembly for confirmation.
There was an indication to this effect as the President’s spokesman, Femi Adesina, in a statement on Wednesday addressed the new heads of armed forces with their new posts instead of in acting capacities if Buhari had the intention of sending their names to the National Assembly for confirmation.
Recall that Justice Bello while delivering a judgment on a suit filed by Mr Festus Keyamo, SAN, who is now the Minister of State for Labour and Employment, declared that the appointment of then service chiefs by former President Goodluck Jonathan was null and void.
The service chiefs affected then included the Chief of Army Staff, Lt-General Azubuike Ihejirika; the Chief of Air Staff, Air Vice Marshal Alex Badeh and the Chief of Naval Staff, Rear Admiral Ezeoba.
Justice Bello had stated, “It is clear that under Section 18(1) and (4) of the Armed Forces Act, the President in appointing such officers as the ‘service chiefs’ is expected to consult with the Chief of Defence Staff and the Forces Council but such appointment must be subject to the confirmation by the National Assembly.”
It was learnt on Wednesday that the President had not forwarded any letter to the National Assembly seeking the approval of the legislative arm of government as of 4pm.
President not under obligation to get N’Assembly confirmation for service chiefs — Presidency source
A Presidency official, who confided in The PUNCH, said the President was not under any obligation to send names of new service chiefs to the National Assembly for confirmation
The Presidency official said the nation’s constitution made it clear that the President should appoint service chiefs.
Though he acknowledged the court judgment asking that service chiefs’ appointments must be confirmed by the National Assembly, the source said the constitution is superior to any other law.
He said, “The constitution is clear on this matter. It said the President should appoint service chiefs.
“This is not the first time President Buhari will be appointing service chiefs. Those he appointed the first time, did he send their names to the National Assembly for confirmation?
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“It is true that Keyamo went to court at a time but the truth of the matter is that the constitution is superior to any other law. The constitution says the President should appoint service chiefs and he has just done that.”
New service chiefs need confirmation, says Keyamo
But Keyamo insisted on Wednesday that the new service chiefs needed confirmation from the National Assembly.
Keyamo, who spoke with one of our correspondents on the telephone, said he was sure that being a competent and intelligent person, the Attorney-General of the Federation, Abubakar Malami, SAN, would do the right thing on the matter.
The minister said, “The position of the law on the matter is still the same. It has not changed. That their names have been announced does not mean that they won’t be sent for confirmation. They need confirmation and I am sure that the AGF, being a competent and intelligent person, will do the needful on the matter. They need confirmation.”
It was not certain on Wednesday whether Buhari would send the names of the newly appointed service chiefs to the Senate for confirmation or not.
When contacted on Wednesday, the Chairman, Senate Committee on Army, Senator Ali Ndume, could not categorically state whether the military chiefs would appear before the Senate for confirmation or not.
Ndume said, “I don’t know whether there would be confirmation from the Senate or not, although there was a court judgment to that effect.
“ That was why we had the Inspector General of Police appearing before the Senate for confirmation.
“I don’t know whether the same thing would apply to the service chiefs or not.
“The immediate past service chiefs did not appear before the Senate for confirmation, that was why the issue of tenure did not affect them
“I don’t know whether they would send the names of the new service chiefs to the Senate for confirmation or not.”
Ndume, however, commended Buhari for appointing the new service chiefs, saying that they had experience, competence and tact to carry out the assignments given to them.
New service chief can’t get fresh salaries – Adegboruwa
But a human rights lawyer, Ebun-Olu Adegboruwa, SAN, said the judgment obtained by Keyamo was still valid.
Adegboruwa, in an interview with The PUNCH, said, “There was no appeal against the judgment of the Federal High Court, which decided that the appointment of service chiefs had to be confirmed by the Senate.
“From the point of view of that judgment, the legal consequence of the recent appointment of service chiefs by the President is only an intention on his part, awaiting confirmation by the Senate.
“If their names are not forwarded to the Senate, then it would mean that their appointments are illegal and if illegal, they cannot be paid salaries and allowances for their ranks from the money appropriated by the National Assembly.
“In addition, all their actions will be illegal and unconstitutional.”
New service chief appointment not substantive – Falana
Another human rights lawyer, Mr Femi Falana (SAN), said the four service chiefs appointed by the President were not yet substantive heads of the Armed Forces until the National Assembly approves their appointment.
In a statement on Wednesday, Falana said the service chiefs could continue to operate in acting capacities but their appointments would not be complete without the approval of the National Assembly.
He said, “The appointments of service chiefs without the concurrence of the National Assembly which had been the practice since 1999 was challenged in the Federal High Court sometime in 2008 by Mr. Festus Keyamo SAN (the current Minister of State in the Federal Ministry of Labour and Employment) in the case of Keyamo v President Goodluck Jonathan (unreported Suit No FHC/ABJ/ CS/611/2008).
“In his landmark judgment delivered on July 2, 2013, Adamu Bello J. (as he then was) held that it was illegal and unconstitutional, null and void for the President to singlehandedly appoint service chiefs without the approval of the National Assembly having regards to the combined effect of section 218 of the Constitution and section 18 (1) & (3) of the Armed Forces Act.
“Because it was acknowledged that the judgment was sound and unimpeachable the Federal Government did not challenge any aspect of it at the Court of Appeal. To that extent, the judgment is binding on all authorities and persons in Nigeria in accordance with the provisions of section 287of the Constitution.”
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Falana called on Buhari to forward the names of the proposed service chiefs to both houses of the National Assembly for confirmation forthwith otherwise, the appointments are liable to be set aside on the basis of the valid and subsisting judgment of the Federal High Court.
No new service chiefs without National Assembly’s approval – Oyetibo
Another Senior Advocate of Nigeria, Tayo Oyetibo, noted that without the approval of the National Assembly, said the service chiefs had not been appointed in law.
He said, “Apart from the judgment of the court, there’s a subsisting law in the laws of the Federation of Nigeria, the Armed Forces Act that requires that the appointment of the service chiefs shall be subject to the confirmation by the National Assembly so it’s a statutory requirement apart from the court judgment.
“The President has to get the approval of the National Assembly because it’s an extant provision of laws of Nigeria because the problem he might run into if confirmation is not made by the National Assembly is that they have not been appointed in the eyes of the law and if they engage in any legal transaction, the challenge becomes a nullity so it’s in their interest that their appointment be referred to National Assembly for confirmation.”
President must get Senate’s confirmation for service chiefs’ appointment – Ali
Mr Yusuf Ali (SAN), while speaking to one of our correspondents noted that the appointment of the service chiefs before getting the approval of the Senate was not illegal as long as the President would still get the confirmation of the Senate.
He said, “It’s a constitutional duty on all Nigerian to obey all court orders and if there’s a judgment of the court, nobody can set it aside except by a superior court. Just like the appointment of ministers, the President has to appoint and refer their names to the National Assembly.
“The President is entitled to make the appointment but in view of that judgment, he may need to submit their names to the National Assembly for certification. You can’t fix an approval in Interpol, the appointment must be made first before other steps would be followed and the President has not said he’s not submitting their names to the National Assembly in accordance with the judgement, it’s only when he says he’s not bound by the judgement that issue will arise.
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“As long as the judgment is extant, the president knows that he has to obey the judgment but the fact that he has mentioned names for the offices does not mean it’s illegal.”
Meanwhile, barring a last-minute change of plan, the new service chiefs will today take over the mantle of leadership from their predecessors.
While Attahiru would assume office after receiving a briefing from his predecessor, Lt. Gen. Tukur Buratai at the Army headquarters on Thursday (today), Irabor will take office on Friday, when he would be briefed by the immediate past CDS, Gen. Gabriel Olonisakin.
Gambo and Amao are also expected to receive the instruments of office from their respective predecessors by Friday.
The PUNCH gathered that the new security chiefs would on receiving the hand-over notes waste no time in re-jigging the flagging counterinsurgency campaign in the North-East that had dragged on for over 10 years.
By Olalekan Adetayo, Eniola Akinkuotu, Sunday Aborisade, Friday Olokor, Adelani Adepegba, Oluwatosin Omojuyigbe, Dogara Bitrus and Adebayo Ayinde
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