Is the Appointment of Service Chiefs Subject to Federal Character?

Daily Law Tips (Tip 724) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:
On 26 January 2021, following the appointment of new service chiefs by the president of Nigeria, a presidential media aid (Mr. Femi Adesina) argued during an interview on ChannelsTv, that the appointment of security chiefs in Nigeria is not subject to federal character principles. He stated; “… there are certain appointments that are also not subject to federal character and one of them is in the security…”. This work answers three (3) legal and constitutional questions; “Does the federal character principles apply to the appointment of service (security) chiefs in Nigeria?, “Is the Appointment of Service Chiefs Subject to Federal Character?” and “Is there an exception for security appointments under the federal character principles?”

Nigeria has its own armed forces, made up of the Nigerian Army, the Nigerian Air force and the Nigerian Navy. The respective heads of the three branches of Nigerian military and a coordinating head of defence are commonly referred to as the service chiefs (the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff). It is the President of Nigeria that appoints a military officer to become a service chief.

The Federal Character Principles:
Nigeria is the most populous African nation in the world. It has many tribes and cultures. It is historically an amalgamation of former British protectorates, made up of distant native settlements. To ensure equality and fairness in government, power and resource control, the constitution of Nigeria stressed that no particular state, ethnic group or sectional group in Nigeria should dominate or populate government or any government agency.

The Nigerian constitution states that “… the participation by people in their government must be in accordance with the provision of the constitution of Nigeria”. It also states that the composition of the government of the federation or any of its agencies and the conduct of its affairs must be carried out in a manner that reflects the federal character of Nigeria, national unity and national loyalty. The constitution also provides that “ … there shall be no predominance of persons from a few state or from a few ethnic or sectional groups …” in government or in any government agencies.

The armed forces for the federation is a creation of the constitution of Nigeria. The constitution of Nigeria clearly in section 217(3) emphasis that the composition of the officer corp and other ranks of the armed forces must reflect the federal character of Nigeria. Furthermore, the constitution of Nigeria mandates the National Assembly of Nigeria (the federal legislature) to make a federal law that will establish a body, that will have the power to ensure that the composition of the armed forces reflects the federal character of Nigeria.

Today, the Federal Character Commission is the federal body created by the National Assembly and empowered to “… to work out an equitable formula, subject to the approval of the President, for the distribution of all cadres of posts in the civil and the public services of the Federation and of the States, the armed forces, the Nigeria Police Force and other security agencies, bodies corporate owned by the Federal or a State Government and Extra-Ministerial Departments and parastatals of the Federation and States ….”. The Federal Character Commission is also established to “… to promote, monitor and enforce compliance with the principles of proportional sharing of all bureaucratic, economic, media and political posts at all levels of government;” and to also “… take such legal measures including the prosecution of the heads or staff of any Ministry, Extra-Ministerial Department or agency which fails to comply with any federal character principle or formula prescribed or adopted by the Commission”.

For avoidance of doubt as to the positions, posts and offices that the federal character principles must apply to, the Federal Character Act, further lists them as; “… the Permanent Secretary in the Civil Service of the Federation or the State Civil Service, Directors-General in Extra-Ministerial Departments and Parastatals, Directors in Ministries and Extra-Ministerial Departments, Senior Military Officers, Senior Diplomatic Posts, Managerial Cadres in the Federal and State Parastatals, bodies corporate, Agencies and Institutions; ….”.

Conclusion:
The Nigerian Army is bound by the principles of federal character and also, the constitution of Nigeria mandates the President of Nigeria to employ federal character formulae in the appointment of service chiefs and other senior officers in the Nigerian military. This also applies to all security agencies in Nigeria. There is no exception from the application of federal character principles on security appointments in Nigeria. Rather any appointment contrary to federal character principles is a violation of the constitution of Nigeria and the Federal Character Act.

Failure to adhere to the federal character principles is a criminal offence punishable with fine of N50,000.00 or to imprisonment for a term of six months or to both such fine and imprisonment. Where an offender is a President or Vice President of Nigeria or a Governor or Deputy Governor of a state in Nigeria, the offender cannot be prosecuted during his tenure in office, due to executive immunity. Such a person can only be prosecuted after expiration of his office and there is no expiration period for prosecution of criminal cases in Nigeria.

My authorities, are:
1. Sections 1, 2, 3, 4, 5, 6, 11, 13, 14, 15, 16, 17, 18, 19, 217, 218, 219, 308, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1, 4, 5, 14, 15, 19 and 20 of the Federal Character Commission (Establishment, Etc.) Act 1995.
3. “Appointment Of Security Chiefs Not Subject To Federal Character – Adesina”, (channelstv, 26 January 2021) accessed 27 January 2021.
4. “Adesina: Appointment of service chiefs not based on federal character” (pmnewsnigeria, 27 January 2021) accessed 27 January 2021.
5. Onyekachi Umah, “When Can Immunity Be Waived By President/Vice-President Or Governor/Deputy-Governor In Nigeria” (LearnNigerianLaws.com, 29 September 2019) 27 January 2021.