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