By Mbang Confidence, Esq.

No fewer than several lawyers and commentators have reacted to the trending issue concerning the tenure elongation of Mr. Kayode Egbetokun, Ph.D., as Inspector General of Police by the President of the Federal Republic of Nigeria. The extension was made possible by the National Assembly’s passage of the Police Act (Amendment Bill) 2024 – an Executive Bill, which amended the Police Act 2020—an amendment devoid of a public hearing for such a definite and sensitive matter.

In reaction to this amendment, Prof. Chidi Odinkalu tweeted on X that “Nigeria is now endangered by the martial tendencies of its @nassnigeria.” However, it was already done, and as we are accustomed to moving on, we moved on. Nonetheless, some lawyers, including human rights activist Maxwell Opara, Esq., instituted an action in court seeking an interpretation of extant laws on the tenure extension. What broke the camel’s back was the criminal charge filed against Omoyele Sowore, a former presidential aspirant of the Action Alliance Congress (AAC), for allegedly and consistently calling Mr. Egbetokun the “illegal IGP.”

The issue became more complicated when the Police Service Commission (PSC) announced the immediate retirement of police officers above 60 years of age or those who had served for 35 years—an order that the IGP would implement. This series of events prompted reactions from different quarters and once again raised questions concerning the constitutionality or otherwise of the extension, as well as comments on democracy, nation-building, and good governance.

Therefore, this vista examines extant laws and seeks to address issues (as a matter of legal opinion) concerning the ongoing discourse, and not as an adjudicatory attempt, as the matter is sub judice and pending before the Court.

Through the Laws, Amendment…

The Nigeria Police Force is established under Section 214(1) of the 1999 Constitution, and the President is empowered under Section 215(1) of the 1999 Constitution to appoint an Inspector General of Police. For purposes of clarity, the sections are replicated below:

214(1):

“There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section, no other police force shall be established for the Federation or any part thereof.”

215(1):

“There shall be—

(a) an Inspector-General of Police who, subject to Section 216(2) of this Constitution, shall be appointed by the President on the advice of the Nigeria Police Council from among serving members of the Nigeria Police Force.”

It should be noted that subsection (2) of Section 214 subjects the organization and administration of the Nigeria Police Force to an Act that may be prescribed by the National Assembly—primarily the Police Act 2020 (as amended) and other related laws.

Interestingly, the Police Act 2020 provides for the term of an IGP in Section 7(6) and the retirement age requirement in Section 18(8), which aligns with Rule 0208010 of the Public Service Rules. For completeness, the provisions are replicated below:

Section 7(6) of the Act:

“The person appointed to the office of the Inspector General of Police shall hold office for four years.”

Section 18(8) of the Act:

“Every police officer shall, on recruitment or appointment, serve in the Nigeria Police Force for a period of 35 years or until he attains the age of 60 years, whichever is earlier.”

Rule 0208010 of the Public Service Rules provides as follows:

(i) The compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service, whichever is earlier.

(ii) No officer shall be allowed to stay in service after attaining the retirement age of 60 years or 35 years of pensionable service, whichever is earlier.

It should be noted that paragraph (iii) of the Rule, however, provides exceptions for judicial officers and academic staff of universities, who retire at 70 and 65 years, respectively.

While I am not necessarily scrutinizing the rationale behind Mr. President’s retention of Mr. Egbetokun as IGP, which may be deeply politically rooted, the role of the National Assembly (both upper and lower chambers) in amending an Act with such a definite provision without a public hearing speaks volumes about the level of disregard for critical issues in our democratic framework and the blatant neglect of the rule of law. The Act was amended within a few hours on July 23, 2024. Specifically, the Amendment Bill introduced a new Section 18(8A), which reads as follows:

“Notwithstanding the provisions of subsection (8) of this section, any person appointed to the office of the Inspector General of Police shall remain in office until the end of the term stipulated in the letter of appointment in line with the provisions of Section 7(6) of this Act.”

This amendment effectively allows a person appointed as IGP to complete a four-year term even upon reaching the 60-year or 35-year service benchmark. The amendment has been criticized for being too interest-centric and unnecessarily urgent. In fact, it enables Mr. Egbetokun, who was born on September 4, 1964, and turned 60 on September 4, 2024, to remain in office until October 31, 2027.

Two Burning Issues

A critical analysis of the events and laws discussed raises two burning issues, which are intertwined:

  1. Can the National Assembly amend the retirement age of the IGP without altering the 1999 Constitution? If the answer is in the affirmative, then—
  2. Can Mr. Egbetokun benefit from the amendment, given the presumption of non-retroactivity?
  • Amendment of the Act vs. Alteration of the 1999 Constitution

Regarding the first issue, after the establishment of the Nigeria Police Force, its organization was left to be governed by an Act of the National Assembly, without any explicit provision on retirement age in the Constitution. This presupposes that the retirement age falls within the legislative discretion of the National Assembly.

Even though the Public Service Rules and other instruments prescribe a retirement age of 60 or 35 years for public servants, these Rules cannot be said, with respect, to be superior to an Act of the National Assembly concerning police retirement. See Incorporated Trustees of Fara Park Property Owners & Residents Association & Ors v. Okwara & Ors (2023) LPELR-60669(CA) for the position of the law on conflict between a Statute and a Rule.

A comparison with the Fifth Alteration Act, No. 37 of June 8, 2023, which altered the 1999 Constitution to provide a uniform retirement age for judicial officers, shows that an alteration was necessary because the retirement age for judicial officers was explicitly provided in Section 291 (1) and (2) of the 1999 Constitution. Conversely, since the retirement age of the IGP is not explicitly provided in the Constitution, the amendment of the Police Act by the National Assembly is legally valid. Therefore, the case of Association of Legislative Drafting and Advocacy Practitioners (ALDRAP) v President of the Senate, National Assembly & 8 Ors SUIT NO. NICN/ABJ/75/2024 is of no moment in this discourse.

The forgoing may be the reasoning behind the much scrutinized statement of the Honourable Attorney General of the Federation, which okayed the tenure extension. For purposes of clarity, I agree with the statement only to the extent the Act was legally amended. However, the lawmakers failed to be specific and explicit on the applicability of the amendment, and this ushers us to the follow-up issue on whether Mr Egbetokun can take advantage of the amendment due to its non-retroactive nature?

  1. The Presumption Against Retroactivity or Retrospective Enactments

The reality of this national discourse and the bitter pill is the fact that section 18(8A) of the Police (Amendment Act) 2024 is already a law in force, and being enforced by the Executives that is why the IGP is still in office. It can only take a pronouncement by a Court of law to render the amendment unlawful and illegal. Therefore, the Court would have to decide on whether a law can be made to have a retrospective effect without express and explicit mention. This is the presumption of Non-retroactivity of laws expressed in the Latin maxim as ‘Lex prospecit non res picit’ meaning ‘the law looks forward, not backward.’ See Adio v State (1986) LPELR-184 (SC) for the presumption. Retroactive legislations are generally deemed pernicious and interpreted ‘Fortissime Contra Proferentes,’ that is, ‘interpreted strictly against the party that created it and in favour of the other party.’ The other party is usually the government.

For purposes of understanding, it is important to note that a retroactive legislation is one that is made to apply retrospectively, while a non- retroactive legislation is one made to apply prospectively. In AYAKNDUE & ANOR v. AUGUSTINE (2022) LPELR-58926(SC), the apex, Per, Abba Aji, JSC at (Pp 13 – 13 Paras A – C), said:

“A statute is to be deemed to be retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation; or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. See Per OGUNDARE, JSC, in ADESANOYE & ORS V. ADEWOLE & ANOR (2000) LPELR-142(SC) (PP. 58-59 PARAS. F).” 

But as a general rule, our constitutional laws and statutes are enacted to apply prospectively unless expressly and explicitly said to apply retrospectively. See sections 2(1) and (2) of the Interpretation Act, 2004; Agbeti v State (2024) LPELR-62006(SC). Therefore, the National Assembly has the powers to enact retroactive legislations, and retroactive legislations are constitutional. See Daniel v UNICAL & Ors (2019) LPELR-481144 (CA). 

In essence, the implication of the forgoing principles and authorities is to the effect that unless the lawmakers are express and explicit on the retroactivity of an enactment, and unless where the words used in a statute are unequivocal, unambiguous, and show retroactive intent, there is a presumption against Retroactivity. See Udoh  & Ors v Orthopaedic Hospital Management & Anor (1993) LPELR-3308 (SC); Adio v State (supra). 

In the light of the above principle of interpretation, can it be said that the inserted section 18(8A) of the Police (Amendment Act) 2024, is retroactive, and can apply retrospectively? In other words, can Mr Egbetokun leverage on the inserted section to complete his four years term as provided? The answer is a capital NO, but the determination is for the Court to make.

Way Forward and Conclusion

While the amendment of the Police Act is valid irrespective of the surreptitious nature of its passage which was below standard legislative practices, the amendment was not expressly or explicitly made retroactive by the lawmakers, and this may not legally ground the extension Mr President envisaged for Mr Egbetokun. The National Assembly has once again proven to Nigerians that with them, anything is possible in the polity except turning man to woman, and woman to man. However, as suggested by a commentator, Mr President may simply save this situation by re-appointing Mr Egbetokun as IGP, but to me, this may raise further issues as to whether a person can be appointed as IGP after attaining the 60 or 35 years age requirement. In other words, the inserted section 8A can only apply to a person who was appointed as IGP before attaining the aforementioned retirement ages in service. This is yet another precedence that if okayed by the Court may occasion unforeseen consequences in IGP appointments, and tenure regime, which may in turn undermine other constitutional and democratic principles.

Food for thought: “Public opinion is stronger than the legislature, and nearly as strong as the Ten Commandments.” — Charles Dudley Warner.

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