All Eyes on Fagbemi to Resolve Army 38 Dispute

With at least seven of the 38 army officers retired unjustly during the era of impunity that characterised the past administration securing court judgments ordering their reinstatement, all eyes are on the Attorney General of the Federation and Minister of Justice, Lateef Fagbemi to reverse the injustice, Wale Igbintade writes

Renowned human rights lawyer, Mr. Femi Falana (SAN) recently called on the Attorney General of the Federation (AGF) and Minister of Justice to urgently intervene in a matter involving the Nigerian Army’s refusal to comply with court rulings regarding the wrongful compulsory retirement of 38 military officers.

 The 38 senior officers were forced to retire by the army on June 9, 2016. The unjust retirement affected nine major generals, 11 brigadier generals, seven colonels and 11 lieutenant colonels. The news of their retirement on June 9, 2016, sent shockwaves across the nation.

The spokesman of the Nigerian Army then, Brig. Gen SK Usman had declared that the officers were compulsorily retired on “disciplinary grounds, serious offences.’’

The “serious offences,” according to the army authorities included partisanship during the general election of 2015, involvement in arms procurement fraud and jeopardising national security. The then Minister of Defence, Brig. Gen Mansur Dan-Alli (rtd) and the former Chief of Army Staff, Lt. General Tukur Buratai (rtd) corroborated Usman’s statement, claiming falsely that due process and fair hearing were granted to all the officers who were purportedly found guilty by a competent legal procedure.

 “It took us a painstaking procedure to ensure we did not pick innocent ones. We started with one inquiry from One Division GOC to the other. After that, we subjected it to legal review. After the legal review, we forwarded our recommendations to higher authorities for consideration. So, it took us time; we have our own process also; our administrative process dovetailing into legal review and so on,” Buratai had reportedly claimed.

However, it did not take long for the mischief and falsehoods to be exposed as Nigerians later realised that the 38 officers were not queried, charged, tried or found guilty of any offence, let alone appearing before any court-martial. 

When it became evident that the army acted illegally, the National Industrial Court (NIC) ordered the reinstatement of the affected persons, who had gone to the court to challenge the act of injustice.

But the authorities have continued to defy the court’s order. Several of the officers who felt the Army breached its extant rules and regulations in carrying out the retirements also took their grievances to the courts to clear their names.

This was after they had appealed to the then President Muhammadu Buhari for his intervention and reinstatement, but no response came from the presidency or the army.

The seven officers who got judgments against the Army are Maj. Gen. Ijioma, Cols Hassan and Suleiman as well as Lt. Cols Thomas Arigbe, A.S. Muhammed, Dazang and Mohammed.

Two other officers obtained National Assembly’s resolutions ordering their reinstatement.

Some of the officers who are still in their 40s are hoping that the authorities would carefully look into their cases in the interest of justice to continue to offer their military service to the country. 

 On June 28, 2022, Col. Danladi Hassan’s solicitors submitted a letter on his behalf to the office of the then Minister of Defence, Maj.Gen. Bashir Magashi (rtd), urging him to prevail on the army to obey the court orders that declared the retirement of their client illegal. The solicitors reminded Magashi that on January 25, 2022, they had forwarded to his office the judgment of the National Industrial Court that set aside the compulsory retirement of Hassan.

  The letter had also noted that Hassan had been subjected to extreme hardship, and emotional and psychological trauma for not less than six years and still counting “in disregard of a subsisting and valid judgment of the National Industrial Court, affirmed by the Court of Appeal ordering our client’s reinstatement and payment of his salaries and allowances.”

 In 2018, the army first suffered a defeat at the Abuja National Industrial Court in a suit filed by Hassan seeking N1billion as damages to void his compulsory retirement. The court vindicated the colonel and nullified the untimely retirement by the army.

 The trial judge, Sanusi Kado, had ruled that the Nigerian Army failed to convince the court about the disciplinary grounds for the compulsory retirement of Hassan. The army authorities, including the Nigerian Army Council, the Chief of Army Staff, and the Armed Forces Council, decided to appeal against the decision of the Industrial Court. 

 In December 2021, however, Justice Stephen Adah, reading the lead judgment of the three-member Appeal Court panel vindicated Hassan again by ruling that the appellants lacked merit in their suit.

The court also noted that “it was in that respect that the court now held that the compulsory retirement of the claimant was declared null and void; letter of compulsory retirement also set aside and he was ordered to be reinstated and a letter issued to that effect, reinstating him into the Nigerian Army with all rights and privileges”.

Eight years after, the arbitrary manner they were sacked has remained a ghost haunting the force.

 Not a few observers feel that this perhaps may be one of the several factors responsible for the perceived low morale in the rank and file of the Nigerian Army. They argued that a situation where injustices are meted out on officers with arbitrary retirement would weaken their morale and lower their performance.

Curiously, before he retired, Buratai disregarded the judgments of the courts and the resolutions of the National Assembly.

In delivering his judgment on February 5, 2020, in Col M. A. Sulaiman v Nigerian Army and others, Justice Sanusi Kado corroborated the officers’ arguments, insisting that the “compulsory retirement of the claimant (Col MA Sulaiman), is hereby declared null and void.”

 Other judgments followed a similar pattern with the judges denouncing the actions of the Nigerian Army against the officers and ordering their immediate reinstatement, promotion and payment of all their entitlements.

 Analysts have argued that if the Generals cannot be reinstated because age and years of service have caught up with them, the colonels and majors who are much younger in age and years of service, still have a lot of contributions to make in the Force.

 To further validate the claims that the officers were innocent of the allegations against them, it was reported that several of them were not even in Nigeria when they were compulsorily retired without a fair hearing.

 For instance, Lt. Col Thomas Arigbe was a Directing Staff on a two-year Exchange Programme with the Ghana Armed Forces at the Ghana Armed Forces Command and Staff College, while Col. MA Suleiman, a national merit award winner for the safe rescue of several foreign hostages, was in Chad as military attache where his experience in fighting the insurgents was being utilised.

This is also the case with Col. Hassan who led the troops in recapturing Bulabulin and Damboa from Boko Haram in August 2014. 

 A retired senior military officer who spoke to THISDAY suggested that the best way forward is to grant justice to the innocent and unjustly retired officers. He particularly noted that the officers who went to court and won must be innocent in every sense of the word because they would not possess the boldness and moral courage to do so unless they were guiltless. 

Falana in his letter also pleaded with President Bola Tinubu to ensure that the judgments and orders of all courts are complied with. 

He stated that there was a precedent, pointing out that the Nigerian Army had in 2016 reinstated Maj Gen Ahmadu Mohammed despite the protests by the Amnesty International of human rights abuses that occurred under his watch in Borno State. The press release by the army spokesman at that time, Brig Gen SK Usman remarked that the compulsory and premature retirement of Major General Mohammed did not follow due process and was rather arbitrary.

“The senior officer was never charged, tried, let alone found guilty of any offence that justified his premature retirement,” the statement added.

 For the army to admit its act of illegality in the case Mohammed and turned a blind eye to the same injustice in the other cases showed the level of nepotism, selective justice and impunity in the past administration.

Citing the past efforts of the Nigerian Army to correct injustices meted out on its own officers, Falana demanded the immediate reinstatement of all the listed officers into the Nigerian Army with effect from June 2016. He also called for the restoration of the listed officers to the current rank and the seniority of their coursemates in the Nigerian Army.

 All eyes are on Fagbemi to redress this injustice.