Did President Muhammadu Buhari make a procedural mistake in appointing Hameed Ali, a retired colonel, as the comptroller-general (CG) of Nigeria Customs Service?
According to section 3.11:1 of the Federal Republic of Nigeria Official Gazette No 24 Vol. 89 of 25th March 2002, the choice of the comptroller-general of customs shall be by “appointment of a suitable Deputy Comptroller-General of Customs (General Duty)”. This guideline is on page 226 of the gazette — which is an administrative publication of established procedures, orders and regulations.
A strict interpretation of the gazette would suggest that Ali was not qualified for the CG position since he was neither a customs officer nor a deputy comptroller-general.
“Security reports on the current deputy comptroller-generals were not favourable in any sense,” an associate of the president told TheCable on Monday. “It became very clear to the president that he needed an outsider to thoroughly clean up the mess. Nigerians do not have any trust in the customs service, and this is one of the biggest revenue-collecting agencies for the federation.”
Before arriving at the choice of Ali, Buhari had sought legal advice from insiders in his government, and he was given examples of how non-career customs officers headed the service in the past. Shehu Musa, a career civil servant, was appointed director of the department of customs and excise in 1975 to reform the structure inherited from the colonial government. Musa later served as the secretary to the federal government in the second republic. Haliru Bello Mohammed, a veterinary doctor, was in the ministry of internal affairs when he was seconded to customs as a director in 1989 by the government of Ibrahim Babangida. At the time, customs, immigrations and prisons were one unit under the internal affairs ministry. In 1990, after the three services were unbundled,
Mohammed was appointed the first CG of customs. He later became minister and acting chairman of the Peoples Democratic Party (PDP) in the fourth republic. In 1993, a serving soldier, Samuel Ango, then a brigadier-general, was appointed sole administrator of the service by the Sani Abacha administration. Ango held the position until February 1999 when the Abdulsalami Abubakar government appointed Aliyu Ahmed Mustapha as the comptroller-general.
However, these instances were long before President Olusegun Obasanjo issued the administrative order in 2002 which was gazetted, thereby giving it a procedural authority.
Falana: A gazette is not a law
The confusion appears to have been created by the Customs and Excise Management Act (CEMA) which does not say anything on the appointment of the CG. It only specifies appointments into the board. Femi Falana, constitutional lawyer and a senior advocate of Nigeria (SAN), told TheCable that the gazette does not have the force of law and section 5 of the 1999 constitution empowers the president to make the appointment from outside the service. “For statutory bodies that the law does not clearly define how appointments are made, the president is fully protected by the 1999 constitution on how he can make the appointments,” he said. According to him, the gazette in question is “a scheme of service” which regulates the internal procedures of promotion within the customs structure. “What that gazette is saying in effect is that you cannot pick any customs officer below the rank of deputy comptroller-general as the CG. It is an internal procedure.
Ali was picked from the outside so the rule does not apply to him. The president is protected by section 5(1)(a) of the constitution which allows him to appoint anybody to help him exercise his executive powers,” he said. The section says: “Subject to the provisions of this Constitution, the executive powers of the Federation shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation.” “By his appointment, Ali is now an officer of the public service of the federation overseeing the customs service on behalf of the president. No law has been broken,” Falana said.
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However, a retired senior civil servant, who declined being named, told TheCable that Buhari should have appointed Ali the sole administrator of customs and not comptroller-general because he is not a career customs office. “He can appoint Ali into the board and then make him sole administrator since he has a specific duty of cleaning up the place.
The comptroller-general is a career position that is done from within the service. In the case of Haliru Mohammed, he was already a director of the service. It was from there he was made CG by Babangida in 1990,” he explained. “Even under the military, they did not call an outsider comptroller-general. Ango was called sole administrator because he was a military man not a career customs man. When Mamman Kotangora was appointed to head ABU Zaria, he was not called vice chancellor. He was called sole administrator. You cannot appoint a VC from outside the university system.” He also said having attained the age of 60, Ali could not be named comptroller-general as this is unknown to all the rules related to the administration of customs. “You retire from service when you have either served for 35 years or you are 60 years old, depending on which comes first. Ali is already 60 and cannot be called CG, but he can be sole administrator and he can still carry out the reforms. As a sole administrator, that is a political appointment not restricted by age,” he said.
However, Falana does not support this position. “We are no longer under military rule, so the issue of naming Ali as the sole administrator does not arise. This is a political appointment, and that means the retirement age does not apply to him,” he said. Femi Adesina, presidential spokesman, told TheCable that no law has been broken