Falana: Standing Law on Its Head

Nuhu Ribadu, former EFCC Chairman

By Tijani Mohammed
The current members of Police Service Commission were inaugurated on 15th April, 2008. Since then it has been holding its statutory meetings. Thus on Tuesday 5th August, 2008, it held one of such meetings. Among the decisions taken that day was the reversion of the promotion of 140 officers of the Police Personnel prior to its inauguration. The decision was sequel to the agenda it set for itself that in the course of its assignment it would endeavour to:
“Protect the integrity and merit in the Nigeria Police Force by ensuring that appointments and promotions are based on seniority, merit and equality and that appointments, promotions and disciplinary processes are clearly defined, fair and transparent”.
Since this decision there has been a deluge of reactions from members of the public. This is more so because Mallam Nuhu Ribadu, the former Chairman of Economic and Financial Crimes Commission and currently a student at the Nigerian Institute for Policy and Strategic Studies, is involved.
One of the commentators was Mr. Femi Falana, a Legal Practitioner, who expressed the view that the Commission’s act of reversing the promotions of Ribadu and 139 other officers was illegal. He wrote in the Thisday Newspaper of Monday 11th August, 2008 at the back page under the title “Legal Implications of Ribadu’s Demotion”
After acknowledging the powers of the Commission to appoint, promote and discipline Police Officers Mr Falana faulted the exercise of such powers in the case of Ribadu, claiming “The power of PSC to demote or reduce the rank of any Police Officer is a punishment which can only be imposed on such officer after he/she has been tried and proven to have committed an offence or gross misconduct. In such a situation the officer affected must be given the opportunity to make a representation to the administering authority before that authority makes the decision affecting the person by virtue of Section 36 (2) (a) of the 1999 Constitution”.
Mr. Falana started on a wrong premise and therefore allowed his entire views to suffer on the platform of misconceptions. He said for instance that there was no Commission until very recently. This may be true. Accordingly, he continued “issues of promotion and discipline in the Nigeria Police Force were taken over and handled by the Inspector General of Police (IGP) as was the practice in the past”
As a legal practitioner of his standing, I used to hold Mr. Falana as a beacon in the legal profession. But to have allowed extraneous considerations to becloud his legal wisdom is most disappointing.
Has Mr. Falana actually read the law setting up the Commission? If he has, does he appreciate its import?
The Constitution in Part 1 of the Third Schedule, Paragraph 29 sub-paragraph a-b provides.
“The Commission shall have power to
(a) appoint persons to the offices (other than the office of the Inspector General of Police) in the Nigeria Police Force; and
(b) dismiss and exercise disciplinary control over persons holding any office referred to in sub-paragraph (a) of this paragraph.”
Continuing in the same spirit, Police Service Commission (Establishment) Act 2001, provides in Section 6 (1) (a) that:
“The Commission shall: Be responsible for the appointment and promotion of persons to the offices (other than the office of the Inspector General of Police) in the Nigeria Police Force…”
Although the law made provision for delegation of any of the powers of the Commission to any person or other authority such delegation is discretionary. But since Mr. Falana was not concerned with the law he never tried to find out how much of this power was delegated and to whom.
In our quest to preserve Constitutional Order, I expected Falana to be the first to commend the Commission for what it has done. For avoidance of doubt the Commission did not demote Nuhu Ribadu. Demotion is a reduction to a lower rank. But was Ribadu ever an AIG? Who made him so and on whose authority? Nemo dat cod non-habet.
Therefore Mr. Falana cannot take shelter in Section 36 of the Constitution. That section cannot avail him. This is because Ribadu is not being punished. He was only a beneficiary of an illegal act. If you dine with the king you die with the king. Estopel does not apply here too. The Commission was not a party to the transaction that led to Ribadu’s supposed elevation. The Commission was a total stranger to it. How the aid of estopel can be sought to ground liability on Police Service Commission can only be explained by Falana who as a Constitutional Lawyer believes that practice can supplant the provisions of the constitution.
Since Mr. Falana started on a wrong premise all the authorities cited are of no avail. His outbursts are emotional, unprincipled and therefore out of accord with the law.
If he has any advice for Mr. Ribadu let him offer it sincerely and honestly without distorting the law on political expediency and popular posturing.

Mohammed is the Legal Adviser, Police Service Commission (PSC), Abuja