By Emma Amaize, Regional Editor, South-South
A highly regarded South-South leader, Brigadier General Idada Ikponmwen (retd.), has questioned the claim to power of exclusive rights by the Presidency in the appointment and removal of Service Chiefs, asserting that the Constitution never made the matter an exclusive preserve of Mr. President and Commander -in-Chief (C in C).
“Ikponwmen, a former Provost Marshal / Head, Legal Services, Nigerian Army, who examined the laws, told Saturday Vanguard in an interview: “By virtue of National Assembly, NASS, oversight function and by the collective reading of the relevant provisions of the constitution, which clearly spelt out the role of the Legislature in this matter, NASS was right to make the call for the change of the service chiefs and such important issue of who and who should be put in charge of the country security sector cannot by any stretch of imagination be the exclusive preserve of the President and C in C.”
Recall that the National Assembly NASS, acting on the basis of its constitutional, legal and oversight functions, had on several occasions called for the removal of the Service Chiefs on the basis of the overwhelming evidence of deplorable security situation in the country.
However, the executive arm has refused, failed to heed the recommendation, as Presidency continued to claim that appointment and removal of service chiefs was the exclusive preserve of the President and Commander in Chief (C-in-C).
Special Adviser President Buhari on Media and Publicity, Femi Adesina, had in a tweet, July 21, stated: ”Buhari notes the resolution of the Senate asking Service Chiefs to resign or be sacked. The Presidency reiterates that appointment or sack of Service Chiefs is a Presidential prerogative, and the Commander-in-Chief will do the best for the country at all times.”
NASS call appropriate
The ex-army chief averred: ”A cursory look at the Constitution, Armed Forces of Nigeria, AFA, and harmonized terms and conditions of service of the armed forces would reveal, among others, that security and welfare of the citizenry is the primary purpose of government. It is clear from the foregoing that it is the responsibility of all the three arms of government to ensure proper implementation of the provisions of the constitution.”
“It is particularly correct that the power of the President and C-in-C to deploy military personnel to address situation of insurrection shall only be exercised in accordance with regulations made by the legislature, even as it is also beyond argument that the NASS has oversight function over the exercise of executive powers in order to ensure that execution and implementation of government policies are done in line with the provisions of the constitution,” he asserted.
”The terms and conditions of service, which generally put the retirement age of service men at 60 years maximum or 35 years of service has been rendered confusing by a certain vexatious provisions that give the President the unfettered discretion to keep servicemen in the service perpetually, a provision which is inconsistent with the rules of public service engagement and the constitutional doctrine of checks and balances.
“The issue of low morale, alarming rate of loss of lives, corruption/embezzlement and lack of accountability within the rank and file of the armed forces, particularly the commanders, are other factors that validate the call by Nigerians, particularly the NASS for injection of fresh ideas into the security system, essentially by effecting changes of the long overdue service chiefs.
”The President himself recently admitted openly that the service chiefs had done their best, but that their best had not been good enough. One would have thought that that would have been the point where the President would have made the necessary changes.
“ It is, therefore, our view that in the face of the un-abating deteriorating state of our security system coupled with the unremitting monumental loss of lives and properties, arising from the failure of the security architecture, by virtue of NASS oversight function and by the collective reading of the relevant provisions of the constitution, which clearly spelt out the role of the legislature in this matter, the NASS was right to make the call for the change of the service chiefs,” he submitted.
Executive arm alone doesn’t constitute govt
According to him: “The Constitution of the Federal Republic of Nigeria 1999 provides that ‘the welfare and security of the people shall be the primary purpose of government’. The same Constitution entrenches the cardinal issue that government is made up of three arms, namely, executive, legislature and judiciary each of which has jointly with the others, the responsibility to ensure good governance.”
“ Section 14 of the constitution provides thus: ‘It shall be the duty and responsibility of all organs of government, and of all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this chapter of this Constitution’.
“In particular, the (NASS) has the responsibility to make laws for the peace, order and good governance of the federation with respect to any thing or matter included in the exclusive legislative list in the 2nd schedule to the Constitution. It needs little emphasis that the armed forces of Nigeria and the issue of defense of the nation is in the exclusive legislative list. Section 4 subsection (2) provides as follows: S4(2) ‘The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the exclusive legislative list …’.
”It is indisputable that the sovereignty of Nigeria resides in the people of Nigeria from whom government derives its powers. Section 14 of the Constitution, having declared that Nigeria shall be a state based on the principles of democracy and social justice, proceeds to stipulate among others that: (a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its power and authority; (b) the security and welfare of the people shall be the primary purpose of government; and (c) the participation by the people in their government shall be ensured in accordance with the provisions of this constitution.
NASS, serious stakeholder in security, defense
“Since security and defense impact directly on the people, it follows, therefore, that the peoples’ representatives (NASS) must be serious stakeholders on any issue pertaining to defense and security This is even more so as the NASS has constitutionally entrenched oversight function under chapter II ( fundamental objectives and directives principles of state policy) of the Constitution.
“Thus, going by the provision of section 14 above, the participation by the people in their government shall be ensured in accordance with the provisions of this constitution. Members of the NASS being the elected representatives of the people cannot be denied their duties/rights as serious stakeholders in anything pertaining to peace, security and defense of the country. Therefore, the question of the performance of the service chiefs is a matter that must clearly fall within the purview of the legislators,” the legal PR actioner argued.
He pointed out: “Oversight function is the power of review, monitoring and supervision of federal agencies, their programs, activities and their policy implementation. It is derived from the implied powers in the Constitution, public laws and House and Senate rules.”
“Parliamentary oversight function is one of the cornerstones of our constitutional democracy. This instrument is a means for holding the executive accountable for its actions and for ensuring that that branch executes our laws and implements policy in accordance with the constitution.
“The robust monitoring of the Executive Arm by the parliament is an indicator of good governance. In addition to parliament’s normal legislative function, it is through oversight that the parliament can ensure a balance of power and assert its role as a defender of the people’s interest, thereby meeting the mandatory function of checks and balances in our system.
“Evidently, the objective of parliamentary oversight is to ensure transparency and openness of executive activities – hold that branch accountable, to provide financial accountability and uphold the rule of law. This oversight functions is performed using tools such as hearings, vote of no confidence, interpellation, parliamentary questions, and passage of resolutions, committees of inquiry, budget oversight, ombudsman and special standing committees.
Executive arm should respect NASS resolutions
“ Just as the laws made by the NASS are binding on all, so also resolutions passed by the NASS should be respected and implemented by the executive arm of government unless in the face of a strong and convincing reason not to do so,” he added.
The former provost marshal asserted: “Section 217 of the Constitution not only establishes the AFN and assigns responsibilities and duties to it, but also gives the NASS several dominant and overwhelming powers among which is the power to establish by law other branches of the Armed Forces as deemed necessary. In particular, in performing the constitutional responsibility of addressing breakdown of law and order, the NASS must approve the involvement of troops in internal security operations. See section 217(2)(c) of the Constitution which provides that the armed forces shall be engaged in suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by an Act of the National Assembly.
“Furthermore, Section 305(3) (c) demands that a proclamation for the State of Emergency must be gazetted and eventually approved by the NASS. Similarly, Section 218 while giving the C in C operational power over the armed forces, still clearly states that ‘The power of the President over the operational use/ command of the armed forces is subject to the regulatory law of the National Assembly.
“See Section 218 (4) (a) & (b), which provides as follows: ‘The National Assembly shall have power to make law for the regulation of – The powers exercisable by the President as Commander-in-chief of the Armed Forces of the Federation; and appointment, promotion and disciplinary control of members of the forces of the federation
”It is, therefore, clear that the NASS has, not just a rights, but a serious constitutional and legal duty in the appointment and deployment of servicemen of which the service chiefs are integral part,” he said.
Quoting a 2015 precedent of seeking NASS approval, he stated, “The Armed Forces Act (AFA) by section 18 (1) provides as follows – ‘The President may, after consultation with the Chief of Defense Staff and subject to confirmation by the National Assembly appoint such officers (in this Act referred to as the Service Chief) as he thinks fit, in whom the command of the Army, Navy and Airforce, as the case may be, and their reserves shall be vested.’
“The above provision was copied from an old military legislation, which predates the 1999 Constitution. The omission of the above provision by a later Constitution , therefore, pointed to only one conclusion, which is that the NASS confirmation was not required in the appointment of service chiefs by the President.
“However, in the face of all of these, the incumbent President Muhammadu Buhari at the beginning of his tenure forwarded the names (appointees) for service chiefs for approval of the NASS (Senate in particular) thereby acknowledging the relevance of the NASS in the matter of appointment to the position of service chiefs; it must, therefore, be intriguing that same regime is now arguing that the business of appointment and removal of service chiefs is the exclusive preserve of the C-in-C. This is glaringly inconsistent with this regime’s earlier position in 2015,” he further submitted.
Ikponmwen said: “Section 219 (a) & (b) of the Constitution provide as follows – (a) The National Assembly shall in giving effect to the functions specified in Section 217 of this Constitution and, (b) With respect to the power exercisable by the President under Section 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.”
“These provisions also emphasize the relevance of the NASS on issues of appointment and composition of the AFN. The only logical conclusion to be drawn from all of these, therefore, is that if the NASS is relevant in the appointment of service chiefs it cannot be rendered irrelevant in the issue of their removal, even if for the sake of checks and balances and abuse of power,” he added.
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