Who Says Osinbajo Lacks Legal Powers To Sack DG?
By Hameed Ajibola Jimoh Esq.
In the Nigeria’s politics, the issue of the dismissal of the Director-General of the Department of the State Security Services – herein after referred to as DSSS, by the Acting-President of the Federation, Federal Republic of Nigeria, on the 7th day of August, 2018, following the alleged blockage of the entrance of the National Assembly of the Federation by security operatives of the DSSS under the command of the DG of the DSSS , and the disallowance of legislators, staff of the National Assembly, etc. from entrance, the situation which the Acting President as well as other legal personnel and majority of Nigerians regarded as unconstitutional and a war against the rule of law which is unacceptable in a democratic system.
The Acting President had also accused the DG of the DSSS as not taking instructions from the Presidency before taking such action.
The aftermath of the action of the DG DSSS was alleged to have given rise to the dismissal and or sacking of the DG of DSSS by the Acting President.
The DG DSSS has as well as some persons, countered and or contested the sacking and or dismissal of him by the Acting President contesting that the Acting President lacks the powers to sack him and or dismiss him and that it is only the President, though, now on a 10-days holiday, that has such powers to sack him and or dismiss him, perhaps because he was appointed by the President.
The question that this paper asks is who says that the Acting President of the Federation lacks the legal powers to sack and or dismiss the DG of DSSS?
With due respect to those who are of the submission that the Acting President of the Federation lacks the legal powers to sack and or dismiss the DG of DSSS, the writer of this paper is of the humble submission that the Acting President has the powers to sack and or dismiss the DG DSSS as he has done.
In support of the argument and the submissions, the writer of this paper had considered the provisions of sections: 3(1) and (2)(a) of the National Securities Act, 2004, sections: 5(1), 130(2) and 145 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution, and sections: 10(2) and 11(1) and (2) of the Interpretation Act, 2004, most especially, sections: 145 of the Constitution and sections 10(2) and 11(1) and (2) of the Interpretation Act, 2004.
Section 145 of the Constitution provides thus:
‘Whenever the President transmits to the President of the Senate and the Speaker of the House of Representative a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President’.
Furthermore, section 10(2) of the Interpretation Act provides thus ‘An enactment which confers power to do any act shall be construed as also conferring all such other powers as reasonably necessary to enable that act to be done or are incidental to the doing of it’.
Section 11(2) of the Interpretation Act provides thus ‘A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be’.
And section 11(1) of the Interpretation Act provides that the power to appoint includes the power to dismiss. And by section 318(4) of the Constitution, ‘The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution’.
From the above provisions of laws, including those which were merely cited above, the writer this paper is of the submission that the Acting President has the legal powers to sack and or dismiss the DG of the DSSS, just as he has done.
Also, the writer of this paper is of the submission that in utilizing the powers of sacking the DG DSSS, the Acting President does not need or require the consent or approval of the President.
Also, any contrary opinion to this would have been without any legal basis.
More so, as at the time that the President transmits to the President of the Senate and the Speaker of the House of Representative a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President.
Therefore, the Acting President is the President for the period under consideration. Though, it might just be an act of recognition and humility on the part of the Acting President to inform the President.
The President while on the vacation should be allowed to relax and enjoy the 10-days vacation rather than being bothered and disturbed about any issue of the national affairs, unless he decides to reduce and or cut short, his vacation by transmitting to the President of the Senate and the Speaker of the House of Representative a written declaration to the contrary.
Furthermore, the writer of this paper does not see any effect of the power of the Acting President sacking or dismissing the DG DSSS than the fact that the DG DSSS stands sacked and or dismissed from office, even if the President does not want him sacked and or dismissed.
Though, the writer of this paper would have personally suggested a suspension rather than dismissal or any other lesser punishment as a warning or query, but for the facts that there would have been no other punishment to actually pass the message across the board that what the DG DSSS has done is unacceptable.
More so, it would have amounted to a continuous and annoying injustice and abuse of powers and office, if he had been allowed to remain in office, since he has now acted manifestly supporting a side as a political tool of some politicians, the situation which has embarrassed the nation before the international communities.
Furthermore, it is important to state clearly that the situation of the DSS operatives blocking the National Assembly as alleged, for no reasonably justifiable reason under the law, is unlawful, unconstitutional, illegal, a breach of security of which the DSS/SSS has been established, war against democracy, a call for anarchy and is a gross misconduct and abuse of powers and public office by the security operatives and the DG DSSS, warranting a stiff punishment, investigation and further necessary disciplinary actions.
Finally, having submitted above, and considering the provisions of laws stated above, the writer of this paper once again asks ‘Who says that the Acting President of the Federation lacks the legal powers to sack the DG DSSS?’
Also, it is important to also as whether such a person can be justified to have made such position? The answer is left to the reader of this paper to provide.