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THE IMPARTIAL OBSERVER

General Adhekegba’s Suit: Self-serving, yet a democratic imperative

Hank Eso

Sunday 15 June 2008

“An act against the constitution is void; an act against natural equity is void”

~~ James Otis

Quite unnoticed, a case critical to Nigeria’s nascent democracy is slowly winding its way through the Nigerian court system. What makes this unusual case interesting is that it involves Nigerian military generals. Far from being a seemingly random notion, it is a well-worn and generally accepted fact that Nigerian army generals do not pretend to be democratic while in office and in uniform. Indeed, as if Nigerians did not know, in 1985, the number-two man, Commodore Ebitu Ukiwe, pointedly told Nigerians, “[t]his regime (the Babangida’s) is not pretending to be running a democracy.” At least, he was forthright about the military’s disposition.

However, the current trend is that once the army generals retire, they crave public acceptance, and find cold comfort, not just in their mufti, but in the rule of law, its guarantees, protections and the privileges it affords them. Such a selective mentality, bordering on blatant hypocrisy, makes it hard to take on face value, claims by any retired Nigerian general of being a democrat. Yes, they conveniently masquerade, attempt at transforming themselves, and even routinely engage in the use of the conventional parlance and political speak. But as the street anti-military wisecrack goes, “Khaki no be leather” (Khaki is not leather); which is to say that general’s hardly outgrow their military siege mentality.

Try as hard as they do, as we witnessed in President Olusegun Obasanjo, retired generals are always inclined and prone to thinking of themselves as beyond the reach of the law. Such disposition is understandable, considering that for over forty years, the military romped through Nigeria unhindered, unchallenged, and made an utter mess of the country, while pretending to be governing. Moreover, generals give orders and are not exactly good or well versed in building consensus.

Moreover, many atrocities were also committed under the various military regimes in Nigeria, including the civil war massacres at Ubakala and Asaba, and “Unknown Soldier” saga, in which Fela Anikulapo Kuti’s Kalakuta Republic was razed and his mother gravely injured. More recently, there was the military’s highhanded response to the Ogoni 9 and those who allegedly trigged the Zango Kataf crisis, even though they acted in self-defense. Then, there were the Odi and Zaki Biam massacres. On record, the Nigeria military has only apologized for the Zaki Biam massacre (six years later), in which over 100 defenseless and innocent civilians were killed in revenge for the alleged killing of 19 soldiers deployed to keep peace along the Benue and Taraba states boundary.

Against this background and reality, it becomes even more interesting that recently, a retired army officer, Major General Robinson Ovo Adhekegba would resort to a civilian court for redress against his erstwhile colleagues, the Nigerian military establishment and the Government of the Federation.

Without generalizing, Nigerian soldiers ordinarily are loath to seek recourse for justice in the courts of law. Many also refuse to appear in courts when subpoenaed. Incidents of some within the Nigerian military being the judge and the jury, while dealing with civil matters abound. Furthermore, the military deride and view the general population with disdain and as “bloody civilians”. However, in a democracy such as we now have -- the military, both the retired and serving- are beginning to grasp what they seem to have forgotten; that in a democracy, the military is always subservient to the elected civilian leadership. This is what makes Gen. Adhekegba attention grabbing suit all the more remarkable.

In a nutshell, in his suit before the Federal High Court, Abuja, the general claims that the Nigerian Army Council as presently constituted, is unconstitutional and illegal by virtue of the Armed Forces Act CAP A20 Laws of the Federation, 2004 and the 1999 Constitution of Nigeria. Hence, Gen. Adhekegba is of the view that such an illegally constituted body could not “remove, retire or terminate his commission” in the army. The latter premise is personal to him and he has the locus standi, but the former, involves a broader question, for which he may very well have instituted as a class action suit, since it affects many Nigerians, especially, if the Constitution has indeed been violated.

Broadly speaking, Gen. Adhekegba claims that there has been a systematic infringement of our democratic ideals and respect for Nigeria’s Constitution by the military, along with the executive branch. This, he claims, happened in the way the various military Service Chiefs has been appointed since the country's return to democracy in 1999. Such actions, he claims, willy-nilly violated the 1999 Constitution, since due process was not followed and the various Service Chiefs did not have their respective appointments confirmed by the National Assembly. In all, there have been eleven Service Chiefs for the army, navy and air force since 1999. While the spirit of the suit seeks for the court to affirm the nullity of all actions taken by the Service Chiefs either directly or In-Council, it raises a more fundamental question as to the constitutional validity of the tenure and actions of those Service Chiefs who served since 1999 or are currently serving, without having been formally confirmed.

UNDERSTANDING THE MILITARY INCESTUOUS COMPLEX

Clearly, Gen. Adhekegba is acting out of sorts and outside military boundaries, and strictly so, for personal reasons. Those within the Nigerian military are usually protective of each other, regardless of the circumstances. Even when they fall out or transgress each other, they have ways of reconciling, just as they have ways of rehabilitating their colleagues that fall on hard times. They call it “welfare” and the funds for such activities, in military speak, go under the subhead of "contingency”.

If Nigerians ever wanted to understand how far the military would go to protect their own, they got it recently. Three former military heads of state – Generals Ibrahim Babangida, Muhammadu Buhari and Abdulsalami Abubakar – would buck reason and decency to tell Nigerians that Gen. Sani Abacha was not the despotic and corrupt leader Nigerians knew him to be. That was, to say the least, a sad and insensitive commentary, even if military esprit de corps required them not to speak evil of the dead. Gen. Sani Abacha was the very antithesis of anything, good, noble and honorable, if not as a person or soldier, then as a political leader. Hence, no amount of posthumous laundering of his persona can alter that fact.

I suspect, however, that there was an ulterior motive in the public pronouncements by Abacha’s former military colleagues. Indeed, there might also be an oblique ethnocentric legerdemain in their collective enunciations. Essentially, they were not saying that Abacha, who like them is a northerner, was not bad, but that comparatively, his regime was nowhere as bad as that of President Obasanjo. Hitherto, Gen. Babangida had voiced similar sentiments and noted that assessments of how corrupt his regime was, pale instantly, once placed alongside the documented and known corrupt tendencies of the Obasanjo’s administration.

CONSPIRACY OF SILENCE

Back to Adhekegba’s suit. Clearly, there has been a conspiracy of silence, if the claims made by Gen. Adhekegba hold out to be true. We know already, that President Obasanjo attempted to subvert democratic ideals and the Nigerian Constitution in so many ways, while all the time, espousing his commitment to due process and the rule of law. Second, the Nigerian military brass should have sought validity of the appointments of its service Chiefs, by submitting to legislative confirmation, pursuant to the extant military code and the Constitution.

Third, the National Assembly ought to have exercised its prerogative, if they were aware that the Constitution empowered them to confirm Presidential appointees for the position of Service Chiefs, just as they do for ambassadors, ministers and heads of certain parastatals. Why the National Assembly elected to play ostrich with this albatross, remains unclear and needs to be clarified. This is what singularly makes Adhekegba suit salient.

Finally, Gen. Adhekegba’s suit is self-serving, yet a democratic imperative in a nation like ours and given the vagaries of our national politics. It however, begs understanding, why Gen. Adhekegba found it convenient to be silent from 1999 to 2008, before speaking up on the anomalies in appointing the Service Chiefs. He cannot claim to have been unaware of such anomalies while he was still in service. That his protestation began, only after decisions made by the current Service Chiefs during that Army Council meeting on February 11, 2008 led to his retirement, makes his motive for coming forward hugely suspect. The general risk being accused of “sour grapes”, which his suit may well be. Nonetheless, we accept the unintended consequences. Indubitably, in attempting to seek redress for himself, Gen. Adhekegba has pointed the nation to an issue deserving of their attention.

Unquestionably, the suit filed on March 18, 2008 by Gen. Adhekegba at the Federal High Court, Abuja, in which the Minister of Defense, Nigerian Army Council, Chief of Defense Staff, Chief of Army Staff, and the Permanent Secretary, Ministry of Defense were all joined as co-defendants, will be decided on its merits. Of the three issues that Gen. Adhekegba sought determination, only one is of critical national interest; and that point is this:

Whether the composition of the Army Council, which met on February 11, 2008 deliberated and resolved that the plaintiff resign his commission on disciplinary grounds was not in violation of the 1999 Constitution and the Army Forces Act CAP A20, Laws of the Federation 2004

It was in the context of the above that Gen. Adhekegba sought a "declaration that full compliance with Section 18 of the Armed Forces Act with respect to the appointment of Chief of Army Staff (fourth defendant) is mandatory."

Clearly, it seems that the military has not complied with the full dictates of its own code and in doing so, implicitly and explicitly violated presidential prerogatives as well as usurped the rights of the National Assembly, as the confirming body for the appointment of Service Chiefs. For avoidance of doubt, Section 18 of the Armed Forces Act, CAP A20 Laws of the Federation, which came into effect in 2004, calls for in subsection (1) that,

"the President, may after consultation with the Chief of Defense Staff and subject to confirmation by the National Assembly, appoint such officers (in this Act referred to as " the Service Chiefs") as he thinks fit, in whom the command of the Army, Navy and Air Force, as the case may be and their Reserves shall be vested. “

The dictates of the code are in no way ambiguous.

It is most unlikely that Nigerians are routing for a presumably disenfranchised Gen. Adhekegba. However, in recognition of the time-honored dictum, that “an act against the constitution is void; an act against natural equity is void”, there is surely a convergence of interest and a nexus, between the prayers Gen. Adhekegba has addressed to the court and unfettered impunity, which unchecked, allows public officials to undermine the Constitution. For this reason alone, as well as for its nuisance value, we must support Gen. Adhekegba’s right to due process in the court of law. Nigeria will be better for such a case and the ensuing discourse of the set precedent, or the lack of merit of the case.

Additionally, we must also consider that our young democracy tends to mimic that of the United States. Therefore, we stand to benefit from America’s long history, laws and legal precedents, even if they are merely by codification. In the US, the president appoints the Chiefs of Staff for the army, navy, air force and the marine, and each must be confirmed by Senate Armed Services Committee and eventually, by the Senate, either by vote or by unanimous consent, before they can assume office. In 2007, when General George Casey was appointed by President Bush as Army Chief of Staff, Sen. John McCain indicated his inclination to oppose the appointment because Casey's tenure as commander in Iraq was marked by "failed leadership." Casey was confirmed eventually.

Beyond Gen. Adhekegba, there is yet another reason why this case is vitally important. The officer ranks of the Nigerian military consist of fine, competent and very professional soldiers and gentlemen. However, like every other profession, there is always, as we now know, pockets of rogue soldiers within the military at any time. As such, we must not allow such men to become top military political brass, even if they have risen to the generalship rank. Appointment to a Service Chief position is as political as it is professional. Hence, the appointees must be vetted thoroughly. Unfortunately, Gen. Adhekegba has made us aware that past Nigerian Service Chiefs, including the incumbents, were not properly vetted by that oversight Senate committee. That is troubling!

Ever so often, a situation comes along that is surprising and unusual, but yet profoundly significant and germane to national interest. Military esprit des corps demands that soldiers – especially those in the brass rank- do not publicly go against each other, even if they feel most aggrieved. Now that they have done so, it is unique and the nation will be better for it. Surely, it will make our democracy stronger.

With neither anger nor partiality, until next time, keep the law, stay impartial, and observe closely.

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Hank Eso is a columnist for Kwenu.com. His commentaries on Nigerian politics and global issues have appeared in The New Times (Lagos), African Profile International (New York), The Nigerian And Africa Abroad, (New York), African Market News (New Jersey) and in Gamji.com and Nigeriavillagesquare.com