Can the IG’s Tenure Be Extended?; By Abubakar D. Sani, Esq

Introduction The on-going controversy over the rumored plan by President Muhammad Buhari to extend the tenure of service of the Inspector-General of Police, Ibrahim Idris, beyond his ostensible retirement age has polarized public opinion seemingly along political lines. It has even reportedly resulted in a litigation which the main opposition grouping, the Coalition of United Political Parties, CUPP reportedly filed at the Federal High Court, Abuja, against the President, the IG, the Police Service Commission and the Police Force as a whole. Even though the debate is still in the realm of speculation, given that the President is yet to indicate his intention one way or another, it is apposite to ask whether there is any precedent for extending a public officer’s term of service beyond his or her statutory prescribed date of retirement. Can President extend that of the IG by re-appointing him? Let’s attempt some answers. The Law Public officers in Nigeria enjoy a secured tenure of service. By virtue of the Federal Public Service Rules 2009 (specifically, Rule No. 020810), the compulsory retirement age for all grades of officers in the Federal Public Service is 60 years or 35 years of pensionable service, whichever is earlier; no officer is allowed to remain the Service beyond these ages. Similar Rules exist in the public services of the 36 States. A different regime is, however, applicable to judicial officers, in respect of which the Constitution (under Section 291) prescribes a mandatory retirement age of 70 years or 65 years for Justices of the Supreme Court/the Court of Appeal and other courts, respectively. The Armed Forces (comprising the Army, Air Force and the Navy) also enjoy a separate regime, by virtue of the Harmonized Terms and Conditions of Service of Officers (2012) as revised. These Rules were apparently made pursuant to the Armed Forces Act, which by definition, is applicable to only the Army, Navy and the Air Force. In other words, it excludes the Nigeria Police. Both the Police Act and the Police Regulations are silent on the retirement ages of officers of the Force. However, to the extent that the Police is a Federal Agency, it can safely be presumed that the general provisions of the Federal Public Service Rules also apply to it. Can a Public Officer’s Term Of Service Be Extended? This question is at the heart of the debate. The answer appears to be mixed. Judicial officers have traditionally bowed out gracefully on attaining their constitutional retirement ages (albeit, in a couple of instances, controversially, amidst allegations of attempting to extend same through sworn declarations of age). By contrast, Section 31 of the Armed Forces Act provides that “an enlisted person whose term of regular service expires during a state of war, resurrection, hostilities or public emergency may be retained in the armed forces and his service prolonged for such further period as the respective competent service authority, with the approval of the Chief of Defence Staff and the Minister, may direct”. However, when President Buhari extended the tenures of the heads of the three branches of the Armed Forces – the Air Force, the Navy and the Army (as well as the Chief of Defence Staff) – in December, 2017, he did so, not pursuant to this provision of the Armed Forces Act, but rather, under Sections 09.06 of the said Harmonized Terms and Conditions of Service of Officers (2012) as revised, as well as Section 218 of the 1999 Constitution. This is pertinent, as under the said provisions of Rule 020810 of the Federal Public Service Rules 2009, all four officers – with the exception of Buratai, the Chief of Army Staff – would automatically have been disqualified, having spent more than 35 years in the Service in each case, given that they all enlisted in their respective branches, coincidentally, in 1979. What About the Police? As previously stated, it is unclear if a separate regime, apart from the Public Service Rules, applies to the Police in terms of retirement age from the Force. This would seem to suggest that, prima facie, every police officer – including the IG – is supposed to exit the Force on attaining the age of 60 or after serving the Force for 35 years, whichever is earlier. In the specific case of the IG, however, Section 215(1)(a) of the Constitution provides that he shall be appointed by the President from among serving members of the Police Force, on the advice of the Nigeria Police Council. The implication of this in relation to the incumbent IG, is that, on the 15^th day of January 2019, when he will reportedly become 60 years old, he will be ineligible for re-appointment to that office as he would no longer be a “serving member” of the Force within the contemplation of the Constitution, as from that date. This is straightforward enough. As the Americans would say, “it’s a no-brainer”. How the President intends to get around this (indeed, if at all, he harbors such a desire) remains to be seen. While it might be unfair to speculate or second-guess the President’s motives in this regard, it is obvious that, short of extending the IG’s service as a police officer, it would be manifestly unconstitutional to foist a retired policeman on the Police. No one realistically expects the President to go down this route. It is simply unprecedented. So, the only way out would be to extend the IG’s years of service in the Police. Can the President do that? If Regulations 137-148 of the Police Regulations are any guide, it appears that some statutory authority of sorts exists for that, albeit in relation to other members of the Police Force apart from the IG himself. They provide that a Commissioner of police may re-engage any member of the Police rank and file who is otherwise due to disengage from the force. Clearly, an IG does not belong to the rank and file. At any rate, even a Commissioner of Police is the IG’s subordinate by second remove (i.e., after a DIG and an AIG), so the point is  moot. Does any law empower either person or body (such as the Police Council or the Police Service Commission) to re-engage a retiring  IG or any other senior police officer beyond the rank and file? That is the question. If such a law exists, case closed, in the sense that the debate would be academic in the case of the IG. If no such provision exists, then the exclusion of non-rank and file policemen from the privilege of re-engagement which Regulations 137-148 of the Police Regulations confer on rank and file police officers would be legally untenable as it violates the rights of the former to equal protection of the law under Article 3(2) of the African Charter on Human and People’s Rights as well as the fundamental right to freedom from discrimination under Section 42(1) of the 1999 Constitution.   Conclusion This analysis has deliberately avoided the arguments over the propriety or otherwise of extending this particular IG’s tenure. I leave that to others, particularly the plaintiffs in the said litigation, who have done so ex abundantia in various fora and media since filing their suit. This is notwithstanding the rule against doing just that, given that the matter is sub judice. Be that as it may, what is clear beyond argument is that the right of the President to appoint and re-appoint an Inspector-General of Police is a constitutional prerogative which is only circumscribed by any conditions which the law stipulates for his or her appointment in the first place. This position is re-inforced by Section 11(1)(c)(i) of the Interpretation Act. As long as those conditions are satisfied in any given case, it is hard to see any legal or constitutional basis for challenging President Buhari’s alleged intention to re-appoint the IG. Beyond this, and without prejudice to the reported litigation, it appears that the Federal High Court is incompetent to entertain any civil action which challenges the extension of the service, tenure or re-engagement of any employee or public officer. This is because, in my humble opinion, the National Industrial Court possesses exclusion jurisdiction over such cases. See Section 254C(1)(a) of the 1999 Constitution. Furthermore, it is not at all clear whether the action is not premature, at least in relation to the Police Service Commission, given the provisions of Section 20(3) of its enabling Act (No. 1 of 2001), which prescribe the service of a pre-action notice on the Commission one month prior to instituting legal action against it. On the authority of KADZI INT. LTD. vs. KANO TANNERY (2003) NWLR pt. 184 pg. 255 @ 288, where parties are sued jointly and the court declines jurisdiction in respect of one of them, it also lacks jurisdiction in respect of the others, as that is the essence of their joint liability. Hopefully, however, common sense will prevail all round and the right thing will be done in the national interest at the of the day. Abubakar D. Sani, Esq. writes from Kano, 08034533892]]>