The Law and Service Chiefs’ Removal

I express my heartfelt condolences to the Governor of Borno State, Professor Babagana Zulum, the people of Borno State, and the families of the 43 Rice Farmers who were wickedly slaughtered by Boko Haram insurgents in Zabamari. It is so heartbreaking, that people who were simply trying to eke out a living were just murdered in cold blood. Have the lives of fellow human beings become so worthless to some? Sections 17(2)(b) and 33(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution) say otherwise, and rather confirm the sanctity of human life. Which religion teaches that innocent people should be murdered for no just cause? Certainly, not Islam. May Allah grant the dead Aljannah Firdaus, and give their families the fortitude to bear the loss. Ameen.

Insecurity and the ‘Technical’ Defeat of Boko Haram

Once again, the Government, whose primary purpose is to secure the lives of the people, failed the people of Borno State (Section 14(2)(b) of the Constitution). Yet, the Nigerian Army talks about technical (or is it biological or chemical) defeat of Boko Haram! It is obvious that Boko Haram is still using the North East as a playground, while the Bandits have taken over the North West! North Central has had more than its fair share of herdsmen crisis. The people in the North, are unanimously crying out for urgent assistance and rescue; that more than the other parts of the country, their locality is highly unsafe, totally insecure, under siege, and as the days go by, getting increasingly difficult to live in and survive. The truth is that, most of Nigeria is experiencing one form of insecurity or the other.

People always wondered how the Army was defeating Boko Haram technically or otherwise, when we were still hearing of regular attacks in the North East. Though the Army may have recorded countless victories against Boko Haram in the past, sadly, it seems that their winning streak may be a thing of the past. Additionally, with the Army’s changing narratives over the Lekki Tollgate incident, it may be safe to say that the Army can be rather economical with the truth, and the level of veracity which can be attached to their claims of victory may be limited, or their claims of victory must proven beyond reasonable doubt, to be believed.

Protection of Life and Property

Government’s provision of security and protection of our lives and property, is a fundamental right guaranteed by the Constitution. See the case of Olufunmilayo Ransome-Kuti & 3 Ors v AGF, Chief of Army Staff & 7 Ors 1985 2 N.W.L.R. Part 6 Page 211 at 230 where the Supreme Court held that a fundamental right is one “which stands above the ordinary laws of the land, and which are in fact, antecedent to the political society itself”.

In R. Benkay (Nig) Ltd v Cadbury (Nig) PIc 2006 6 N.W.L.R. Part 976 Page 338 at 385 per Ogunbiyi JCA (as she then was), a constitutional right was defined thus: “…. is that inherently provided and which cannot by any act or stretch or reasoning be taken away, without a constructive laid down legal due process of the law”. Also see the case of Imonikhe v AG Bendel State 1992 23 N.S.C.C. Part II Page 480 at 491 per Nnaemeka-Agu JSC that: “Any act, which infringes or runs contrary to those organic principles or systems (provided in the Constitution), is said to be unconstitutional”. I submit that Government’s inaction/failure to protect Nigerians, especially those in the North East, is an abdication of duty that runs contrary to the organic principles in the Constitution, and therefore, unconstitutional.

It is therefore, insensitive and more than shameful, for the President’s spokesman, Garba Shehu, to have engaged in victim-blaming, claiming that the victims of the Rice Farm Massacre did not obtain clearance before they went to work on their farms, when in actual fact, Government and the Army are the ones who failed to meet their constitutional obligations to them, by leaving them as unprotected sitting ducks for the insurgents to kill. It is high time Government starts to take responsibility for its inadequacies, instead of constantly looking for others to blame – including the dead – for its failures!

Criticisms and Counter-Criticisms

While I do agree that Sections 38(1) and 39(1) guarantee the right of everyone, including the opposition PDP, to freedom of thought, conscience and expression, no right thinking person should lend much credence to PDP’s criticisms of Government on the insurgency issue, for several reasons. First, because they are very much part of this Boko Haram problem. Maybe, if in 2009, they had not killed Muhammad Yusuf, the leader of Boko Haram extra-judicially (during late President Umaru Yar‘Adua’s tenure), without giving him a fair trial, all the different terrorist cells may not have sprung up, and things may not have spiralled out of control and deteriorated to such an unpalatable level. Secondly, the Chibok girls were kidnapped during their time; how many of them did the Jonathan administration rescue?

Third, we can all see from APC’s antecedents (part of which ACN (Action Congress of Nigeria) became after their amalgamation into APC)), that in Nigeria, all the opposition does is to criticise those in power in order to run them down and up their own ratings for future elections, and not for any particularly constructive reasons. Once they get into power, they do exactly the same thing or worse! Having distanced themselves from the problem, PDP is condemning this APC Government about their handling of a crisis which they assisted in escalating.

In 2013, Alhaji Lai Mohammed, under the auspices of ACN condemned the Jonathan administration’s proscription of Boko Haram and Ansaru, declaring that it was unconstitutional. He said thus:”….. But, we believe that whatever action government takes – even in an emergency – must pass the constitutional test, especially since relevant sections of the Constitution have not been suspended”. Alhaji Mohammed also accused President Jonathan’s administration of stifling the press to silence criticism and opposition; and he raised an objection to Section 5(1) of the Proscription Order which prescribed an imprisonment of not less than 20 years “for any person who knowingly, in any manner, directly or indirectly, solicits or renders support for the commission of an act of terrorism or to a terrorist group”. Because the definition of support in that Order included the dissemination of terrorist information, he wondered if this was not contrary to Sections 22 and 39(1) of the Constitution, thereby strangulating the media.

Today, as the Minister of Information and a high ranking member of the Buhari administration, a person who denounced proscribing a known Terrorist organisation as being unconstitutional, saw nothing wrong in proscribing IPOB which could not be described as a Terrorist Group at the time of its proscription in 2017; it was no longer unconstitutional, as it was when the Jonathan administration proscribed Boko Haram and Ansaru in 2013! Today, Alhaji Mohammed is the champion of denouncing any criticism against this “perfect administration” as “Hate speech”, which some of the framers of this highly unconstitutional law went as far as proposing the death penalty, in certain circumstances. Today, any criticism or protest is labelled as treasonable felony! Today, several actions of this administratio, do not pass the ‘constitutionality test’.

Removal of Service Chiefs

Section 217 of the Constitution clearly provides for the establishment and functions of the Nigerian Armed Forces (the Army, Navy and Air Force); functions which include defending Nigeria from external aggression and suppressing insurrection. It is quite clear that, in this regard, the Armed Forces have not quite met their constitutional obligations.

However, for those clamouring for the removal of the Service Chiefs for their failure to provide security, especially in the North East, this decision may be entirely up to President Muhammadu Buhari on whether they stay on or go. Naturally, many believe that their failure to secure the North East, are ample grounds to let them go. Section 218(2) of the Constitution confers powers on the President to appoint the Service Chiefs, while Section 11(1)(a) & (b) of the Interpretation Act provides that where an enactment confers a power to appoint a person to an office, whether for a specified period or not, such appointing power is also accompanied with the power to remove or suspend such appointee. This can literally be interpreted to mean that, by virtue of the Interpretation Act, the President who appointed, can lawfully sack the Service Chiefs.

The Harmonised Terms and Conditions of Service (Officers) 2012 Revised (HTACOS) in Chapter 9 Paragraph 9.08 which previously provided that the Service Chiefs could hold appointment for a continuous period of two years, and be extended for another term of two years from the date of the expiration of the first term, that is, that the Service Chiefs could only serve for a maximum of four years, was revised in 2017. Paragraph 11.09 of the 2017 HTACOS which replaced the old Paragraph 9.08, gives the President the prerogative to extend the tenure of the Service Chiefs till Armageddon if he so desires, irrespective of their age, length of service or years already served as a Service Chief. With this convenient 2017 amendment, the body language of the President shows that he wanted/wants them to stay on.

Does this mean that without the buy-in from President Buhari on the removal of the Service Chiefs, those clamouring for their removal may do so until they shout themselves hoarse, but they cannot be removed?

Being typical of Nigerian law making, the HTACOS – which is not a law but simply conditions of service, and without a doubt, inferior to the Constitution (likewise the Interpretation Act is inferior to the Constitution), is totally unconnected with the Constitution which defines members or officers of the Armed forces and the Police as Public Servants (see Section 318 and Part II Paragraph 8 of the Fifth Schedule to the Constitution), and gives the Code of Conduct Tribunal (CCT) the power to discipline a public officer, by prescribing various punishments for erring public officers, including vacation of office (Paragraph 18(2)(a) Code of Conduct for Public Officers Part 1 Fifth Schedule to the Constitution).

While some may argue that only the President can remove the Service Chiefs, others may also argue that just as the former Chief Justice of Nigeria, Honourable Justice Onnoghen was brought before the CCT as a public servant, not minding the NJC or Section 231 and Paragraph I 21(a)(i) & (b) of Part I Third Schedule to the Constitution, so also can the Service Chiefs be dragged before the Tribunal and removed for misconduct. The difference between the two scenarios is that, while the Presidency desired the removal of Justice Onnoghen, they have hitherto facilitated the Service Chiefs’ prolonged stay in office, by also allowing the HTACOS to be amended in that regard, and so far, resisted the calls for their removal.

The question is, whether this type of non-performance on the part of the Service Chiefs can be considered to be misconduct. In Egwu v Uniport 1995 8 N.W.L.R. Part 414 Page 419 at 443 per Muntaka-Coomassie JCA: “The phrase misconduct….simply means improper conduct. Black’s Law Dictionary 5th Ed. defines misconduct as…..a dereliction from duty…..”. See also Stabilini Visinoni Ltd v Mallinson & Partners Ltd 2014 12 N.W.L.R. Part 1420 Page 134 at 186 per Amina Adamu Augie JCA (as she then was) – “The word misconduct…..is defined in Black’s Law Dictionary 9th Ed, as ‘ a dereliction of duty; unlawful or improper behaviour’”. By the foregoing definitions, it seems that non-performance which is more or less the same as dereliction of duty, qualifies as misconduct which can be handled by the CCT. However, it is doubtful that anyone will go down the CCT route, especially as the Tribunal itself is part of the Executive. It seems that President Buhari must buy-in to their removal, if it must happen.

Conclusion

Be that as it may, whether the Service Chiefs are removed or not, it is crystal clear that something needs to be done extremely urgently, about protecting the lives and property of our brothers and sisters up North. It is heartbreaking to watch them struggle to survive, under such dangerous and life threatening conditions. If Government has to employ the services of international military contractors like G4S, Gardaworld, Control Risks, CACI International or International Intelligence Ltd to complement the efforts of our overstretched and under-equipped military, so be it. They are some of the best military contractors, in the world. They deal in technological driven intelligence, supply of man power, training etc. This is should not be a matter of how loyal the Service Chiefs are to this administration; but more importantly, about saving the lives of our brothers and sisters up North.

I was shocked to hear on a television programme (and read in the newspaper) last week, that one of the reasons that the Tucano Jets which Nigeria ordered from USA in 2018 and paid almost $500 million for had not been delivered, is because the Nigeria Air Force runway in Kainji where the Jets are to land, does not have the capacity to carry the aircraft! Just imagine! We have a serious security emergency, Government has had two years since the order was placed, to prepare to receive the tools that will assist us to fight the security emergency more effectively – yet they failed to prepare, and Nigeria is now apparently running the risk of forfeiting the Jets. The pertinent question to ask at this juncture is, how serious is Nigeria about fighting this insurgency?