The current Hon. Attorney-General of the Federation (AGF) and Minister of Justice is a lawyer for whom I have absolute respect for. My respect for him is rooted in his capacity for legal research and legal advocacy to identify aspects of our legal system and jurisprudence that requires changes and to follow through with such changes.
It is in this spirit that the AGF, in his erstwhile position as a lawyer for Rotimi Chibuike Amaechi (RCA) made an indelible contribution to the jurisprudence of Nigeria in the case of Amaechi vs. Independent National Electoral Commission (INEC) and others (2008) In that case the Supreme Court of Nigeria ruled that votes belong to the political party and not to a candidate, that is how CRA was installed as Governor of Rivers State although he never featured or contested in the Governorship election. It is in this same spirit of making contributions to the jurisprudence of Nigeria, that I am writing this open letter to the Hon. Attorney-General of the Federation and Minister of Justice.
This letter is an appeal for the Hon. AGF to reconsider his previous position where he stated as follows:
“The appointment of Egbetokun which took effect from 31st day of October, 2023 would have come to an end on his attainment of 60 years of age on 4th day of September, 2024,” the statement reads.
“However, before his retirement age, the Police Act was amended to allow the occupant of the office to remain and complete the original four-year term granted under Section 7 (6) of the Act, notwithstanding the fact that he has attained the age of 60 years. This has, therefore, statutorily extended the tenure of office of Egbetokun to and including the 31st day of October 2027, in order to complete the four-year tenure granted to him.
For the avoidance of doubt, Egbetokun’s continuous stay in office is in line with the provisions of the Police Act amended in 2024 which allow the occupant of the office to enjoy a term of four years effective from the date of his appointment as IGP, in this case, 31st day of October 2023.”
Contrary to the foregoing assertions by the Hon. AGF, I hold the view that it is only through an alteration of Sections 214, 215 and 216 of the 1999 Nigerian Constitution (as altered) that the tenure of the Inspector-General of Police can be extended. The logic behind this argument is that, the office of the Inspector-General of Police is a direct creation and established by the 1999 Constitution of Nigeria therefore, it is only through an alteration of the said Constitution that changes can be made to the tenure of office of the said Inspector-General of Police.
For the avoidance of any doubts, Section 215, of the 1999 Nigerian Constitution is reproduced hereunder:
Appointment of Inspector-General and control of Nigeria Police Force
(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;”
In support of my assertion that, an alteration of the Constitution is the ONLY method to achieve tenure extension of the IGP, I respectfully urge the Hon. AGF to consider the Fifth Alteration Act, No.37 of June 8th 2023 wherein the 1999 Nigerian Constitution was altered to provide a uniform age of retirement and pension for all judicial officers of the courts that were created by the 1999 Nigerian Constitution. The reason is because the offices of the judges of all the aforesaid judicial officers were created by the said 1999 Nigerian Constitution (as altered), therefore changes to their age of retirement must equally be effected through an alteration of the same 1999 Nigerian Constitution.
Respected Hon. AGF knows fully well that by an application of the BLUE PENCIL RULE and Section 1 (3) of the 1999 Nigerian Constitution (as altered), the said Section 7 (6) of the Police (amendment) Act, 2024 which purports to extend the tenure of the IGP is unconstitutional to the extent of its inconsistency with the provisions of Sections 214, 215 and 216 of the 1999 Nigerian Constitution (as altered). This view is supported by the judgment of the Supreme Court of Nigeria in the case of Attorney-General of Bendel State vs. Attorney-General of the Federation (1982) NCLR 1
There is an additional issue that I respectfully urge the Hon. AGF to consider. This view was canvassed in a recent case when we (Association of Legislative Drafting and Advocacy Practitioners-ALDRAP) filed a law suit at the National Industrial Court of Nigeria to challenge the attempt by the National Assembly to enact a law to extend the age of retirement of the Clerk to the National Assembly from 60 to 65 or from 35 to 40 years of service whichever comes first.
In that lawsuit, we argued as follows:
“Nigeria public servants in established and pensionable cadre of the Federal Government Service do not hold their offices at the pleasure of the Federal Government. Rather, their appointments are based upon rules and regulations, statutes, or memoranda of appointment, citing Morakinyo v. Ibadan City Council [1964] 1 All NLR 219 and paragraph 11(1) of Part I of the Third Schedule to the 1999 Constitution. That since the Public Service Rules, statutes, or memoranda of appointment, all derive from the Constitution, they all have constitutional force, citing Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 and Shitta-Bey v. Federal Public Service Commission [1981] 1 SC 40; [1981] LPELR-3056(SC). That by virtue of the Public Service Rules 2021 (as amended), the compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service, whichever is earlier. Accordingly, that no officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service, whichever is earlier.”
Following from the above, by enactment of the Police Act, 2020, the IGP and all other police officers are now classified as “public servants” by virtue of the definition of “public servants” as provided under the 1999 Nigerian Constitution, therefore, it logically follows that their age of retirement is the same with other public servants as defined by the same Constitution, which pegs it at 60 years of age.
On this note, I rest my case and await your re-consideration of your stance on this matter, failing which we (ALDRAP) shall file a lawsuit at the National Industrial Court of Nigeria to seek a clarification on this subject matter.
LEGAL IMPLICATIONS OF THIS POSITION AND OPEN LETTER
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Constitutional Supremacy: The Constitution is the supreme law of Nigeria, and any law that contradicts constitutional provisions is unconstitutional. Alterations to the IGP’s tenure require a formal constitutional amendment, not merely an amendment to the Police Act.
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Inconsistency with Constitutional Provisions: The Police Act 2024, which attempts to extend the IGP’s tenure beyond the constitutional limit of 60 years, is inconsistent with the 1999 Nigerian Constitution. This could render the amendment unconstitutional.
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Judicial Challenge: If the AGF’s position remains, it is likely to be challenged in court. A lawsuit could be filed to clarify whether the extension of the IGP’s tenure is constitutional, and the courts may rule against the amendment if it conflicts with the Constitution.
- Public Servants’ Retirement Rules: The IGP, like other public servants, is subject to the retirement age set out in the Constitution. This aligns with legal challenges surrounding the retirement age of other public servants, which has been consistently held at 60 years.
This issue, therefore, highlights the importance of constitutional alignment in the governance of key public offices like the IGP, and the necessity for careful legal interpretation to ensure adherence to constitutional provisions and prevent inexcusable violations of constitutional stipulations.
