Defence Minister Is Above Service Chiefs In Hierachy..Femi Falana

A human rights lawyer, Mr. Femi Falana (SAN), has said the 1999 Constitution and the Armed Forces Act place the Minister of Defence, General Mohammed Gusau, above the Chief of Defence Staff (CDS) and all the service chiefs.

Falana, consequently, explained that the service chiefs “are answerable to the defence minister pursuant to sections 5(1), 147, and 148(1) of the 1999 Constitution and sections 9, 12 and 15 of the Armed Forces Act.”
The lawyer, who is a former President of West Africa Bar Association (WABA), shed light into the ambiguous sections of the constitution and Armed Forces Act, which he said placed the defence minister above the service chiefs in a two-page statement made available yesterday.

He, however, acknowledged that the CDS and the service chiefs “are appointed by the President of the Federal Republic of Nigeria pursuant to section 218(3) of the constitution.”

According to the section, the president may, by directions in writing and subject to such conditions as he may think fit, delegate to any member of the armed forces of the federation, his powers relating to the operational use of the armed forces of the federation.

But Falana argued that the defence minister “is equally appointed by the president pursuant to section 147 of the constitution. But the president has, in exercise of his powers under sections 5(1) and 148(1) of the constitution, delegated his executive power of managing the defence ministry to the defence minister.
“Apart from such power of superintendence, the minister is recognised as the head of the ministry of defence by the Armed Forces Act (CAP A20) Laws of the Federation of Nigeria 2004.

“Thus, in the Armed Forces Council and the National Defence Council, the minister of defence is higher than the CDS and the service chiefs in the ranking of the members.

“For the avoidance of doubt, the minister of defence is the chairman while the CDS is the vice-chairman of the Army Council, Navy Board and Air Council as stipulated in the sections 9, 12 and 15 of the Armed Forces Act.

“It is pertinent to note that the permanent secretary, who is a civilian, is the accounting officer of the ministry of defence and a member of the governing councils of the armed forces.”Falana argued that the CDS and the service chiefs are answerable “to the defence minister to whom the president has delegated his executive powers with respect to the defence of the federation,” in the light of the unambiguous provisions of the 1999 Constitution and the Armed Forces Act.

He, therefore, urged the president, as the Commander-in-Chief of the Armed Forces to call the CDS and the service chiefs to order without any further delay.

Falana explained that since the military had ruled the country for close “to three decades, serving military officers have  penchant for treating civil authorities with disdain. The anti-democratic culture is not peculiar to Nigeria.”
He made reference to section 87(2) of the 1994 Ethiopian Constitution, which he said, stated that the minister of defence shall be a civilian, adding that the section was injected into the Ethiopian Constitution based on the country’s similar experience in the past.

He lamented that the ministry of defence had no substantive minister for over 22 months, explaining that Erelu Olusola Obada, a Minister of State for Defence was directed by President Goodluck Jonathan “to superintend the defence ministry for over a year.

“When she was relieved of her post in a cabinet reshuffle last year, the Information Minister, Labaran Maku, was saddled with the responsibility of supervising the Ministry of Defence. It is on record that both Obada and Labaran Maku allowed the CDS to operate as the de facto Minister of Defence. Under the arrangement, the CDS had direct access to the President.”