The service chiefs appointed by President Muhammadu Buhari on Tuesday, need the confirmation of the Nigerian Senate to clothe their appointments in legality.
Several senior lawyers, including Buhari’s minister, Festus Keyamo have drawn Buhari’s attention to a 2013 High Court judgment, which made it mandatory for the President to submit service chiefs appointees to the Senate.
The judgment, was delivered by Justice Adamu Bello on July 2, 2013.
Justice Bello declared: “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.”
Festus Keyamo, a senior advocate (SAN) and Minister of State for Labour, who dragged the Jonathan administration to court insisted on Wednesday that the attorney-general of the Federation, Abubakar Malami would do the right thing on the matter.
“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,” Keyamo said.
Four other senior lawyers, Ebun-Olu Adegboruwa, Femi Falana, Tayo Oyetibo and Yusuf Ali concurred with Keyamo.
“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.”
Mr Femi Falana:
“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 287 of the Constitution.”
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.
“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.”
“It’s a constitutional duty on all Nigerians 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. 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.
“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.”
However, there is no indication President Buhari would comply with the court order.
The service chiefs appointed by President Buhari on Tuesday were:
*Chief of Defence Staff, Major General Lucky Irabor,
*Chief of Army Staff, Major General Ibrahim Attahiru;
- Chief of Naval Staff, Rear Admiral A.Z Gambo,
Chief of Air Staff, Air-Vice Marshal Isiaka Oladayo Amao.