The resistance of the Chief of Defence Staff (CDS), Air Vice Marshall Alex Badeh to the attempt by the new Minister of Defence, General Mohammed Gusau (rtd) to exert operational command over the Armed Forces of Nigeria has generated much debate. This debate has arisen principally because the Laws creating the Armed Forces of Nigeria have erected a deep structure of power around the office of the Chief of Defence Staff, far beyond the powers constitutionally and statutorily assigned to the Minister of Defence. However despite this immense power vested with the CDS, the turf contest waged by him against the Minister of Defence in the latter’s first week in office is borne out of a misapprehension of the law and a gross mistake.
Section 217 of the 1999 Constitution (as amended) establishes the Armed Forces of the Federation and prescribes in Section 218 that the command and operational use of the Armed forces shall be vested with the President. Then the laws proceed to consolidate and solidify the powers and position of the Chief of Defence Staff (CDS) in the Military chain of command. Subsection 3 of Section 218 prescribes that 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 his power relating to the operational use of the Armed Forces.
A combined reading of the above provision with the Armed Forces Act cap A20 LFN 2004, which provides for the command, maintenance and administration of the Armed Forces provides a clearer picture. Section 7 of the Act entrust the day-to-day command and operational use of the armed forces to the CDS. At the top of the chain of command is the President who by Section 8 of the Armed Forces Act is empowered and authorised not only to determine the operational use of the Armed Force, but he may under general or special directives, delegate his responsibility for the day- to-day operational use of the Armed Forces to the Chief of Defence Staff; of the Army, to the Chief of Army Staff; of the Navy, to the Chief of Naval Staff; and of the Air Force, to the Chief of Air Staff. Subsection 2 of section 8 of the Act mandates the Service Chiefs to comply with any directive given to them by the President under subsection (1) of this section.
Femi Falana, learned SAN, has contended in his article: “The Constitution vs. The Generals,” that the very fact of placing the Minister of Defence higher in hierarchy over and above the CDS in various sections of the Constitution and the Armed Forces Act presupposes that the Minister of Defence has the power to issue operational directives to the Service Chiefs including the CDS. Nothing can be farther from the truth. The reason is simple. It is in the nature of powers conferred not the position occupied that should be the yardstick of assessment of the powers of the Defence Minister vis-a-vis those of the CDS. An examination of the following provisions of the law will buttress this point.
First, section 153 of the Constitution creates the National Defence Council (NDC) and the National Security Council (NSC) as Federal Executive bodies. Part 1 of the Third Schedule to the Constitution provides for the composition and functions of both the NDC and the NSC. The Schedule prescribes that the President shall be the Chairman while the Vice-President shall be the Vice-Chairman of both bodies. The Minister of Defense and the CDS are respectively placed third and fourth in hierarchy as members. The functions of the NDC and NSC as prescribed by the Constitution is to advise the President on national defense and national security.
To contend as Femi Falana has done that the higher position of the Minister of Defence in the NDC and the NSC affords him the power to issue operational directives to the Service Chiefs including the CDS will imply that the Vice-President who is higher in hierarchy than the Minister of Defence and also doubles as the Vice-Chairman of both bodies is in the chain of command and can issue operational directives to the Minister of Defence and the Service Chiefs. Without a doubt, that cannot be the intendment of the law or a valid interpretation of the above provisions.
Second, though provisions are made under sections 9,12 and 15 of the Armed Forces Act for the establishment and composition of the Nigerian Army Council, Nigerian Navy Board and the Nigerian Air Council with the Minister of Defence as Chairman and the CDS as Vice-Chairman, section 10,12 and 15 places the exercise of the functions of the above bodies “under the general authority of the Chief of Defence Staff”—its Vice-Chairman!
Where the Law has enabled the Defence Minister to exercise operational command over the Armed Forces and to issue operational directives to the Service Chiefs is restricted only to the powers of delegation entrusted to the President. Thus, section 5 of the 1999 Constitution (as amended) provides that the Executive powers of the Federation shall be vested with the President who shall subject to the provisions of laws made by the National Assembly exercise such powers either directly or through the Vice-President or Ministers of the Government of the Federation or officers in the public service of the Federation. Section 148 of the Constitution further provides that the President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of Government.
Additionally, the Minister’s Statutory Powers & Duties (Miscellaneous Provisions) Act Cap M14 2004, an Act of the National Assembly, provides for the transfer of statutory powers and duties to ministers by the President of Nigeria. Section 2(1)(a) gives the President powers to transfer to a Minister any of the powers and duties which are by law directly or indirectly conferred or imposed on the President, or any public officer or which are conferred upon any other minister. It is the above provisions conferring powers of Delegation to the President that places the Minister of Defence in the chain of command if the President properly exercises his powers.
In a Presidential system of Government, every Minister of the Government acts and exercises power in the name and for the pleasure of the President. The President therefore, must in the exercise of his constitutional and statutory powers of delegation of duties leave no room for doubt, assumptions or confusion. In my judgment, it is the lack of this clarity of the powers delegated to the Defence Minister by the President as Commander-in- Chief that has resulted in the needless clash of egos and turf war between the Defence Minister and the CDS.
The overt similarities between the United States system of Government and ours makes the observation of a former US Secretary of Defense, the equivalent of our Minister of Defence, of crucial relevance in further understanding the nature of power a Defence Minister can exercise in relation to the operational command of the Armed Forces. In “Duty: The Memoirs of a Secretary at War,”Robert M. Gates remarks that: “The Secretary of Defense is second only to the President in the Military Chain of Command. Neither the Vice-President nor the Chairman of the Joint Chiefs of Staff is in the chain at all. And any order to American Forces worldwide goes from the President to the Secretary directly to the combatant Commanders. Although as a practical matter and courtesy, I routinely asked the Chairman (of the Joint Chiefs) to convey such orders.”
Rupert Irikefe,the Principal Partner in the Firm of Irikefe, Otubu & Partners, practices law in Warri andAbuja.