Voluntary Retirement: The Nigerian Army's Misconstrued Congectures
My attention has been recently drawn to a report by Premium Times, published on 5th of April 2020, and reported by other online news sites about an internal memo released by the echelons of the Nigerian Army to the effect that The Nigerian Army has suspended approvals for voluntary retirement requests from soldiers.
Although the position is still a matter of contention, I strongly urge the Top Brass of the Nigerian Army to quickly jettison the idea because not only is it illegal but it is also beyond its pay and power to make such order
Having read and analyzed the above position and bearing in mind the provisions of the 1999 Constitution of Nigeria (as amended), Nigeria Pension Act, The Armed forces Act, Public Service rules, Armed forces Pension Act and the Guidelines on Administration Military Pension for Personnel of the Armed Forces of Nigeria; I submit that the Nigeria Army has no legal right to suspend or stop voluntary retirement of army officers in Nigeria.
I further submit that if at all such order can be made, it can only be made by the President of the Federal Republic of Nigeria, in line with section 26 of the Armed Forces Act or the National Assembly in accordance with its Constitutional Powers in Section 4 of the 1999 Constitution (as amended).
LEGAL ANALYSIS
The laws governing retirement in the Armed Forces, by implication, the Nigeria Army are unambiguous and explicit. The Nigerian Armed Forces is part of the Nigeria Public Service and so is guided as such.
On further interrogation of the Armed Forces Act, no part or section of the Act empowers the Nigerian Army to preclude, suspend or stop any army officer from voluntary retirement. A careful perusal of Section 26 of the Armed Forces Act, provides that, “the President may make regulations governing the commissioning of officers, their terms of service, promotion, retirement, resignation, dismissal and such other matters concerning officers of the Armed Forces as may seem to him necessary.”
Going from the above, only the President has the powers to make such regulation regarding the suspension or cancelation of voluntary retirement of Army officials in Nigeria, and not the echelons of the Nigeria Army.
I say this mindful of the fact that the Nigeria Armed Forces Act is a superior legislation, due to the fact that it derives its powers from the express direction of the Sections 217-220 of the 1999 Constitution of Nigeria.
Suffice to say that the reading the gamut of section 3 Of the Armed Forces Pension Act and the provisions of the guidelines on Administration of Military Pension for Personnel of the Armed Forces of Nigeria quickly shows it’s positive disposition for voluntary retirement and no part of these laws, stated above, empowers the top brass of the military echelon to bar or suspend the application for voluntary retirement of Military Personnel, in itself.
Holding that a military officer cannot voluntarily retire, and must continue in active military duty against the provision of section 26 of the Armed Forces Act and will amount to nothing short of forced labour. Section 34 (1)(c) and 34 (2) (b) of the 1999 Constitution (as amended) should be read in line with section 26 of the Armed forces Act.
WHAT DOES THIS MEAN?
This means that the only persons authorized by Law that can enforce compulsory labour, in line with Section 34(1)(c) and 34(2)(b) of the 1999 Constitution, on the Nigeria Army, to the effect that they should continue to work without voluntary retirement is the President of the Federal republic of Nigeria only, through a regulation in tandem with section 26 of the Armed Forces Act.
The National Assembly can also make a Law, suspending, restricting or stopping voluntary retirement of Army personnel in Nigeria, in pursuance of its powers in Section 4 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Let it be known that an Army officer who voluntarily joined the military service without any duress or compulsion cannot be compelled to remain in the service against his wish, unless in accordance with extant provision of the Law as provided in section 26 of the Armed forces Act and Section 4 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in exercise of a Law enacted by the National Assembly.
CONCLUSION
I believe that you cannot hide under the cloak of the law to derogate from the law. Patriotism and Illegality are never birds of the same feather, one denigrates the other.
I therefore call on the top brass of the Nigeria Army to redirect itself to order, should incase it has misdirected itself in Law by issuing such memo; or peradventure it is currently mulling the idea of such illegality.
Opatola Victor is an Abuja based Legal Practitioner and can be reached at adeopatola@gmail.com
While i agree with you on the general principles of law regarding the issue of voluntary retirement, let me state that service in the Armed Forces is sui generis. In other words, it is not like any other public/civil service, where an employee can come in and disengage at will. For instance, in appropriate circumstances, an application for voluntary retirement by a serving military personnel may be deferred or refused by appropriate military authority and this is backed by law as may be cited hereunder.
In the case of Nigerian Armed Forces, there are laid down procedures that must be followed even when a personnel is to disengage. This is governed by the Harmonised Terms and Conditions of Service (HTACOS). There is one for Officers and another for Other Ranks (Soldiers/equivalents) promulgated by the President and Commander – in – Chief pursuant to Section 26 of the Armed Forces Act, Cap A20 LFN 2004 . The current regulations were endorsed in 2017. The HTACOS therefore, is the principal regulation governing the terms and conditions of service in Nigerian Armed Forces, including the issue of voluntary retirement under consideration. This is in addition to other internal Service Orders, Signals and regulations that are issued from time to time.
It may also interest you to note that the HTACOS takes precedence over Public Service Rules to the extent that the former is specific to the Armed Forces while the latter is made applicable in case of any lacuna(e) that may exist in HTACOS.
This is for your information and those of the esteemed readers.