Avoiding Legal Pitfalls In Federal Appointments Usman Abubakar
President Muhammadu Buhari has enormous public goodwill. He is no doubt one of the most popular presidents to ever rule this country. Part of the many challenges he faces is appointing right people into high-profile offices.
For a popular president, he has the public behind him. That goodwill coupled with enormous powers of the Nigerian presidency can be tempting. Loyalists then have the sacred duty to ensure that in the euphoria of popularity, decisions are not taken that can in the short and long run undermine that national credibility or dent hard earned image of a disciplined president.
I have been talking to many Buharists like me. I am not bothered about Jonathanians because I don’t expect them to accept the new administration so soon. But within the house, discussions show that we are letting our guards off. We are taken some decisions which can be better handled if sufficient brainstorming is done and if all legal instruments are studied and employed.
In the last one hundred days, we have made pronouncements which clearly showed that we are not getting some things right. It is one thing to have powers to do something; it is another thing to avoid legal pitfalls while exercising that power. We cannot pretend that we can do and undo especially in a very active democracy like ours.
We are likely to be closely marked in whatever we do and that is the key reason why complying with extant laws is an imperative. I may be wrong, but I think we are not doing enough due diligence in recent appointments. We need to wield state power in a way that proves we are different from the Jonathanians.
Starting with the appointment into the electoral commission to the recent appointments, it is like we are not looking at the law properly. We are not making use of the State House Counsel or the people at the Justice ministry. We can arrange private lawyers if need be. Recent appointments appear like we are trampling on existing laws which are simply unnecessary.
For example, the INEC issue is now an albatross for us. We acted in ways that splashed mud on our white garments. We can still get a loyal INEC boss without breaching the law. Now the matter is hanging with our enemies waiting to nail us.
We have also not paid close attention to federal character as stipulated by law. We should remember the Federal Character act was the baby of the northern region. We need the bill more than the south. If jonathanians breached the act, we need not follow in those ignoble steps.
Much more shocking is our recent appointment of a new Comptroller General of Customs. If we had read carefully Custom Act of 2004, we would have seen clearly that the law stipulates how the president exercise his power of appointment Consensus among even APC lawyers is that appointment of Colonel Hameed Ali breached the Customs Act.
Legal opinions are already flying around on this matter. The Nigerian Customs Service Board Act CAP N100 Laws of the federation of Nigeria 2004 established the Nigeria Customs Service Board with the function of formulating the general policy guidelines for the Nigeria Customs Service and administering the Customs and Excise Management Act. It lists the membership of the Board to include the Minister of Finance who shall be the Chairman and Comptroller- General of Customs who shall be the Deputy Chairman.
Section 4(2) (a) (b) of the Board Act provides that the Board shall have the power to appoint persons to hold or act in all the offices in the Service…and to dismiss and exercise disciplinary control over same. The issue for consideration here is whether the office of the Comptroller-General Customs is an office in the Service.
The Federal Republic of Nigeria official Gazzette No: 24 of 25th March 2002 Vol. 89 provides for the scheme of service and under Customs Superintendent (General Duty) cadre, it provides for posts and salaries for officers of the Service and Comptroller-General of Customs is one of the posts established by the same scheme.
The said scheme of service also provides for the methods of Entry and Advancement within the Cadre. It provides that one may attain the post of the Comptroller-General of Customs by appointment of a suitable Deputy Comptroller-General of Customs.
This means therefore that the office of the Comptroller-General of Customs is an office in the Service; hence his appointment is provided for by the Board Act. Since the Board is responsible for the appointment of all persons in the Nigeria Customs Services.
Section 5 of the 1999 Constitution as amended provides that the Executive powers of the Federation shall be vested in the President and to be an exercise subject to the provisions of any law made by the National Assembly.
In this case of appointment of the Comptroller-General of Customs, the President must be guided by the Nigeria Customs Service Board Act as discussed above which states that the Board has the responsibility of appointing all officers in the Nigeria Customs Services.
Under Section 171 of the Constitution as amended, Mr. President can appoint Permanent Secretary in any Ministry or Head of any Extra-ministerial Department of the Government of the Federation howsoever designated.
Appointment of Head of Extra-ministerial Department howsoever designated includes the Head of Head o Nigeria Customs Service which is the Comptroller-General of Customs. However, Section 5 of the Constitution has provided that the President shall exercise his executive powers subject to the provisions of any law made by the National Assembly, in this case the Nigeria Customs Service Board Act.
Appointments made pursuant to sub-section 2 (a) and (e) i.e Secretary to the Government of the Federation and any officer or the personnel staff of the President shall be at the pleasure of the President and shall cease when the President ceases to hold office. This also means that the appointment of the Head of Extra-ministerial Department like the Nigeria Customs Service is not at the pleasure of the President. He must act within the law established by the National Assembly. The Comptroller-General of Customs is a career civil servant and so he is not expected to leave office like the SGF, Ministers and Personal Aides of the President when he leaves office on the expiration of his tenure or on change of government.
Having said that, I and many friends of the president believed what is needed is strong institutions not strong men. Colonel Ali is a great leader with impeccable character. But what the Customs service needs urgently is a reform of its structure and operational model. We must reform the institution instead of looking for strong men to man them. A corrupt system can rubbish any good man leading it.
It is never too late. We need to urgently review recent appointments and ensure compliance with the laws. Colonel Ali and. other insiders will agree with me that we need to obey the law while pushing for fundamental changes.
Nigerians rightly voted against impunity and it may amount to electoral betrayal if we foist impunity on them again under our populist president.
Abubakar sent this piece from kano