The recent judgment delivered by Justice Adamu Bello of the Federal High Court in Abuja nullifying the appointments of all the service chiefs in the country’s armed forces has put the military chiefs in a severe dilemma. The judgment is also an indication that Nigeria may soon practise constitutional democracy, God willing.
Hitherto, the presidency perceived that there was an exclusive relationship between Section 218 of the 1999 Constitution and Section 18 of the Armed Forces Act in the appointment of service chiefs, thus engaging the army officers without confirmation by the Senate. That was the contention and the crux upon which the decision of the court was based.
The provisions aforementioned relate to the power of the President to appoint service chiefs. While Section 218(2) and (4) (a) of the constitution confers the President with the power to appoint the Chief of Defense Staff, service chiefs and heads of any other branches of the armed forces in accordance with an Act of the National Assembly, section 18(1) of the Armed Forces Act states how the powers of the President in the appointment of the officers mentioned in Section 218(2) of the constitution may be exercised. Hence, the court concluded that both laws were complementary and mutually inclusive.
This is one judgment one may refer to as a clue that the President must subject himself to the constitution which he vowed to uphold and protect. Also, it is very instructive in that it admonishes him to follow due process in making important appointments in line with the provisions of the constitution. This is because in a democratic dispensation, adherence to the rule of law is a sine quo non to good governance.
Indeed, the judgment is an embarrassment to the Presidency and a clear denunciation to the National Assembly particularly the Senate which has the responsibility of endorsing or rejecting the President’s nominees for the appointment of service chiefs. In a way, I think the President is not to blame  rather, I impugn the Senate which has given him the flexibility to operate above the law relating to such sensitive appointments. Else, why would the lawmakers remain reticent while the president explicitly perpetrated a breach of the law?
If no one knows about this, one expected the Attorney-General of the Federation and Minister of Justice, Mohammed Adoke, who is also a Senior Advocate of Nigeria (SAN), to explore the constitutional provisions and advise the President accordingly. Such timely advice would have saved the President and the entire armed forces the grave humiliation caused by the judgment.
This ruling has several implications. First, it effectively nullifies the appointments of all the military chiefs leaving the President with the option of either sacking them or re-presenting them to the Senate for ratification if he so desires. Otherwise, their appointments remain null and void as pronounced by the court. Secondly, henceforth, all appointments that require the confirmation of the Senate will be presented to the Upper Chamber which the law rightly affirms.
Most importantly, the judgment highlights the significant role of the Chief of Defense Staff in the appointment of service chiefs by the president in that such appointment is required to be made in conjunction with the chief of Defense Staff. It therefore, means that there must be a duly appointed Chief of Defense Staff (whose appointment must in turn be confirmed by the Senate) before the president may exercise his power of appointing the service chiefs.
I see the pronouncement by the court as a huge victory for Mr. Festus Keyamo, who instituted the suit since 2008. It provides a much-needed boost to the rule of law in the country and inflicts an important dent on the arrogance of the executive. It also challenges the legislature to be alive to its responsibility by implementing the constitution in both letter and spirit.
Naturally, court decisions of this kind elicit an appeal against it. However, it is my view that such appeal will neither serve the public image nor the interest of the government. Rather, the judgment should be enforced immediately. This is one decision that unambiguously states the limits of the powers of the executive and the legislature.
The path of honour in this matter is for the President to study the judgment carefully and do what is needed and return to the senate for its express approval of the appointment of the service chiefs. Also, the President should muster candor and strength of character to acknowledge that a mistake has been made.