Journal of Research and Development Vol. 1, No.2, 2013 STEMMING IMPUNITY IN APPOINTMENTS IN NIGERIA: A CASE OF THE SACK OF SERVICE CHIEFS By Mr. Eme, Okechukwu I. & Ogbochie, Andrew Department of Public Administration and Local Government University Of Nigeria, Nsukka Abstract The term rule of law and constitutionalism echoed into the subconscious of ordinary Nigerians under the fourteen years of democracy simply because of assaults of the paradigm of law and contempt for the laws, just as the term dictatorship assumed wider popularity when military heads of state held sway, more especially under late General Sani Abacha. What exactly are the rule of law and constitutionalism and what do they guarantee for the society that upholds these concepts were explained in a thematic form by identifying their major features. These concepts were put into text on Monday, 1st July, 2013 by Justice Adamu Bello of an Abuja Federal High Court when his judgement sent shocking waves around the polity when he ruled that the unilateral appointment of service chiefs by the president is unconstitutional and by implication nullified the appointments of those appointed as same. The honourable justice gave the verdict while delivering judgement on a five year old suit instituted by Lagos lawyer, Mr. Festus Keyamo. Keyemo had sued the administration of the late president Umaru Yar’Adua for failing to get the consent of the Senate before appointing the service chiefs. The late president Yar’Adua, had followed the stead of his predecessor, chief Olusegun Obasanjo, by appointing service chiefs, including chief of Army staff, chief of naval staff, chief of Air staff, and Director of the State Security Service without recourse to the National Assembly. This nullification brought with it a lot of reactions. While some applauded the judgement as one of the best springs to lift-up democratic governance and the rule of law in the polity, others have knocked it down, positing that is capable of chaos and undermining the presidency, particularly as it affects security. Others yet viewed it as a double-edged sword empowering democracy and also capable of doing damage to the military establishment. The big questions, however, are: is the judgement actually incongruity? What are its political and security implications? This paper seeks to address these issues. The author goes on to use the major indices of the rule of law and constitutionalism to evaluate their practice in Nigeria using specific instances to add currency to this position. Patron-client politics of elite theory swerves as its theoretical perspective. The article concludes by positing that the rule of law and constitutionalism are ideals in Nigeria which are difficult to attain in their totality. Key Words: Rule of Law, Constitutionalism, Civil Liberties, and Human Rights, Due Process, Constitution, Governance and Democracy. Introduction Constitutionalism and the rule of law have a variety of meanings. In a poplar parlance, the former refers to a complex of ideas, attitudes and patterns of behaviour elaborating the people that the authority of government derives from and is limited by a body of fundamental laws (the constitution). The later takes over from where constitutionalism stops. It is a legal term, which includes a number of interrelated principles (predominance of regular laws as apposed to arbitrary law, equality before the law and protection of human rights and individual liberties). These two interrelated concepts have gained currency since Nigerian returned to civil rule in 1999. Most of the debates are centered on how to enforced and 20 Journal of Research and Development Vol. 1, No.2, 2013 reinforce them so that due process mechanism became part and parcel of governance in the polity. Since 1999, the rule of law and constitutionalism and due process was always mentioned as key aspects of governance, but the practice of governance itself shows very little linkage to the general demands of constitutionalism and the rule of law. A foremost example is the civilian regimes penchant for disregarding and outright disobeying of court orders and judgments. The presidency has advised members of the public to disregard insinuations in some quarters that the sack of army service chiefs, the director general of the State Security Services (SSS) and the Inspector General of Police by President Goodluck Jonathan was politically motivated. Jonathan in a surprise move effected major changes in the top hierarchy of the army and security agencies. The changes led to the appointment of new service chiefs: Maj-Gen. Onyeabo Azubike Ihejirika (Army); Real Admiral Ola Saad Ibrahim (Navy) and Air Vice Marshal Mohammed Dikko Umar (Air Force). Alhaji Haffiz Ringim became acting inspector-general of police while Mr. Ita Ekpeyong was appointed the new director-general of the SSS. However, some political monitors and observers had in 2010 said that the president's action was informed by his deliberate move to consolidate his political grounds in preparation for his 2011 presidential bid. But responding to the insinuation then, senior presidential aide told LEADERSHIP that the insinuation is not correct. The insinuation that the sack of army service chiefs and heads of the police and the SSS was politically motivated is not correct, he said. The service chiefs served their full term; this is the first time it is happening for a very long time. When President Goodluck Jonathan assumed office, he was under suffocating pressure to sack them. But he resisted the temptation and allowed them to finish their term. Their term ended in the first week of August this year (Odaudu, 2007:2). The presidential aide said the president's action was based on the need to consolidate ongoing professionalisation of the army and prepare them for their huge role in the sustainability of democracy. The presidency advised those pending the rumour not to drag the army and security agencies into partisan politics. According to him, “President Goodluck Jonathan on his part will make sure that they are not dragged into politics” (Odaudu, 2007:2). Meanwhile, Festus Keyamo, recently said he was vindicated on the need for legislative approval for appointment of service Chiefs. He noted that the statement of the spokesman to President Jonathan relieving the service chiefs of their appointments and announcing the new appointees stipulated that the appointments will only take effect subject to approval by the National Assembly. Keyamo said, “I have shouted myself hoarse in the last few years that the previous appointments of service chiefs without legislative approval is patently illegal” (Ige & Fadeyi, 2013:1). His case challenging their appointments is still pending at the Federal High Court, Abuja. The letter which he wrote August 31, 2008, was ignored. The content of the letter indicated the illegality of the appointment of service chiefs by the president on August 20, 2008. The then president, Umar Musa Yar’Adua had announced the appointment of new service chiefs. Air Marshal Oluseyi petinrin (Air force), Major General A. Bello Dambazau (Army), Rear Admiral Isaiah Ibrahim (Navy). Which was approved with immediate effect. He said the powers of the president to appoint service chiefs is provided for in section 218 (1,2,3,and4) of the Nigerian 1999 Constitution which states that the powers conferred on the president by sub section1 of this section shall include power to appoint the heads of any armed forces of the federation as may be established by an Act of the National Assembly. 21 Journal of Research and Development Vol. 1, No.2, 2013 Does the president have the powers to appoint service chiefs without recourse to the National Assembly? That was the question Lagos lawyer, Festus Keyamo, put to a federal high court in Abuja, presided over by Justice Adamu Bello. The first part of the paper is introductory, it tries to explain the concept of “constitutionalism”, the second part attempts an operational definitions of “constitutionalism” and the third section evaluates the practice of “constitutionalism” in Nigeria, using specific instance of the recent sacking of service chiefs and the implications/lessons Nigeria can learn from the sack. The final section offer recommendations and concludes the paper. Thematic clarification of concept: Constitutionalism Defining Constitutionalism is a matter of great philosophical debate and cannot be exhaustively covered in this paper. However, the implication of constitutionalism is that in exercising its powers conferred by law, the government should be limited by law. Its authority over the people is dependent on its observance of the tenets of constitutionalism set out by the Constitution, as the Supreme law of the land. When such tenets are disrespected or violated by a governmental action or inaction, it undermines the very essence of constitutionalism and the basis of legitimate governance. There are two major contending perspectives to the understanding of the concept of constitutionalism. These are the descriptive and prescriptive usages. Used descriptively, the concept refers primarily to the historical struggle for constitutional recognition of the people’s right to “consent” and certain other rights and civil liberties and privileges. Used prescriptively, its usage incorporates those features of government seen as the essential elements of the constitution (Fellrenbacher, 1989:1) One example of constitutionalist’s descriptive use is offered by Schwartz (1980) complication of sources seeking to trace the origin of the Federal bill of rights. Beginning with English antecedents dating back to the Magna Carta (1215), Bernard Schwartz explores the presence and development of ideas of individuals’ freedoms and privileges through colonial charters and legal understandings. Then in carrying the story forward, he identifies revolutionary declarations and constitutions, documents and judicial decisions of the confederation epoch and the formation of the Federal Constitution. Finally, he turns the debates over the federal constitution’s ratification that ultimately provided mounting pressure for a federal bill of rights.