Prominent lawyers are also of the view that the Section 145 of the 1999 constitution empowers an acting president to carry out his principal’s role as Commander-in-chief, without let or hindrance.
The quartet of General Gabriel Olonisakin (Chief of Defence Staff), Lt.-Gen. Tukur Buratai, Chief of Army Staff (COAS), Vice Admiral Ekwe Ibokete-Ibas, Chief of Naval Staff (CNS), and Air Vice Marshal Sadiq Abubakar, Chief of Air Staff (CAS) were appointed on July 13, 2015.
In line with the Armed Forces Terms and Conditions of Service, these appointments tenured for two years, could be renewed at the behest of the president/commander-in-chief. They could also be extended as far as they are under retirement age of 56 and/or attained the maximum length of service.
While Olonisakin, Ibokette-Ibas and Abubakar actually got tenure extensions, Buratai, a member of Course 29 in the Nigerian Army is yet to attain the retirement age, or maximum length of service at the moment.
Weighing in on Osinbajo’s powers to effect such appointments in his capacity as the acting president should the need arise, former Chief of Army Staff in the Second Republic, Lt. Gen. Alani Akinrinade (rtd) said there should be no controversies or issues whatsoever over Osinbajo’s capacity to determine whether the current service chiefs should continue or not.
According to him, “To say that he is not the Commander-in-Chief (C-in-C) and therefore could not take decisions in whatever capacity is tantamount to saying that President Muhammadu Buhari has not transfered authority to him, through the letter that was written to the National Assembly.
“On the other hand, it is not in the interest of the country not to have service chiefs in place, even though Mr. President is not around, and someone is acting on his behalf. I think with the provisions of the constitution, and the acceptance of the letter by the National Assembly, Osinbajo has the constitutional right to either appoint new service chiefs or retain those in office.
Former Provost Marshal of the Nigerian Army, Brigadier-General Idada Ikponmwen (rtd), now a legal practitioner, is also of the view that Osinbajo by virtue of his status has capacity to appoint service chiefs.
“The power to appoint lies with the president and the president includes whoever is there (in office) whether acting or substantive,” he said.Ikponmwen, who said: “We have not been told that the president is incapacitated, we are told that he is taking treatment,” added that “his whereabouts does not make any difference. We have an acting president in office.
Did he not sign the budget? Has he not been operating in that capacity as president and visiting several parts of Nigeria and taking decisions on behalf of the president? So who told you he cannot take such decisions as acting president? I have answered you.”
Retired Col. Tony Nyiam, is of the view that: “The position of the 1999 constitution is clear in that anybody who wears the title of Nigerian president is automatically the Commander-in-Chief of the Armed Forces of the country.
“Another issue is, since the Senate has accepted the letter written by President Buhari, which transferred responsibilities of the president to his vice, now acting president, he is not restricted to act any capacity, but can work in all capacities, including that of the Commander-in-Chief of the Nigerian Armed Forces because there cannot be a vacuum there as authority is never dead or ill.
“For instance, if there is a security threat to Nigeria now, are you saying that Osinbajo cannot authorise troops to be deployed? The service chiefs are not commanders-in-chiefs by themselves, but they are only acting in advisory capacity to the president, who is the only five star general and a field marshal,” he stated.
On the absence of service flags of the Nigerian Armed Forces behind Osinbajo during his Democracy Day speech, which many said suggested that he was not accorded the rights of the C-in-C, Nyiam said it was either a mistake or a deliberate attempt to undermine him.
According to Nyiam: “The service flags ought to have been placed behind him. I think it was part of the efforts of some cabal to undermine the acting president. You will recall that about three ministers took files to Buhari in London to sign, but he referred them to the acting president. There are those who simply want to undermine Osinbajo. So, it is now left for the system to correct all these.”
For Chief Sebastine Hon (SAN), to say that the Acting President lacks power to appoint service chiefs is, with respect, to stand Section 145 of the Constitution on the head, as a person appointed in acting capacity steps completely into the shoes of the substantive holder of that office.
His words: “Section 11 (2) of the Interpretation Act: “(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.”
In his view, the discretion is that Prof. Osinbajo should consult with his boss. “But to insinuate that he lacks power to make those appointments or perform any other functions associated with the high office of the President of Nigeria will, with respect, not be correct,” he stated.
Another legal practitioner, Mukhtari Shagari, says the intendment of the constitution as provided for in section 145 was to ensure that there is no vacuum when the president is out of the country, or is incapable of performing his functions due to sickness or any other thing. The acting president, he said, in most cases would be careful not to take certain decisions in other to avoid conflicts between himself and the president, not because he lacks power to take them.
He said: “Every president without exception would like to personally appoint his service chiefs. Appointing service chiefs has nothing to do with party manifesto, it is about loyalty. The vice president has been discharging his responsibilities as acting president competently and admirably. I am sure that he will continue to do so and also take decisions as the situation demands.”
Dr. Uche Ngwaba, is of the view that a fine balance needs to be struck between politics and the imperatives of national security. There is no doubt, he said, that on a strictly legal evaluation of this situation, there is likely to be unanimity of views that the powers transmitted to the acting president, in the absence of the president, allows him to appoint service chiefs when the tenure of those in the position has elapsed.
However, he noted that in political calculations, it may not be considered a routine function for the acting president. According to him, the acting president might be cautious to avoid taking certain decisions that will bring him in conflict with the President.
“In the final analysis however, I think that the response is neither here nor there. The constitutional scheme does not countenance a power vacuum. Considering the imperatives of national security (Nigeria is literally under siege from all manner of disruptive forces). I believe the acting president will be remiss in the discharge of his duties if he fails to appoint replacements to the position of the service chiefs when the tenure of those currently serving in that capacity elapses.
In his opinion, Solomon Ukhuegbe notes that Section 145 of the constitution requires some clarification as there’s no “Office of The Acting President. Instead, we have the offices of President and Vice President respectively.
He therefore stated that ‘Acting President’ is a special status, which the vice president has under Section 145 to enable him discharge the functions of the President during the latter’s absence.”
“In spite of the temporary transfer of presidential powers to the vice president, as acting president, the president does not cease to be president during the period (although he can no longer exercise presidential powers for the time being). Otherwise, it should necessarily follow that: (a) the president ceases to be president once Section 145 is activated. In effect, he immediately loses for the time being all the privileges, immunities and emoluments of the office.”
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