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Between legality and legitimacy of Egbetokun’s tenure extension 13 Mar 2025

The continuing tenure of Kayode Egbetokun as the Inspector-General of Police (IGP) beyond his 60th birthday, on 4 September 2024, has become a subject of intense legal and public debate. The controversy gained wider public attention when Omoyele Sowore, a popular political activist, was charged with cybercrimes following his characterisation of Mr. Egbetokun as an “illegal IGP” in a series of social media posts. The public outcry that followed ultimately led to a formal response from the Attorney General of the Federation and Minister of Justice, Lateef Fagbemi, (SAN).

In his media statement, the Attorney General invoked the 2024 amendment to the Police Act, which seeks to provide legal clarity on the status of the IGP’s tenure and address the constitutional and statutory implications of the amendment. Nevertheless, the controversy has continued to linger.  

Section 7 of the Police Act 2020 (prior to the 2024 amendment) deals with the appointment, functions, powers, and removal of the IGP. Subsection 6 makes the office a one-term tenure. It provides: “The person appointed to the office of the Inspector-General of Police shall hold office for four years.”

However, Section 18 deals with the recruitment of constables and cadets into the Police Force. Section 18 (1) places “the responsibility for the recruitment of recruit constables into the Nigeria Police Force and recruit cadets into the Nigeria Police Academy” on the IGP, who serves as the Chairman of the Police Recruitment Committee created under the section. Subsection 8 provides: “Every police officer shall, on recruitment or appointment, serve in the Nigeria Police Force for a period of 35 years or until he attains the age of 60 years, whichever is earlier.”

In providing a conjunctive interpretation of Sections 7(6) and 18(8) of the Police Act, as they pertain to the unique circumstances surrounding Egbetokun's tenure – specifically reaching the age of 60 or the 35-year mark in service before the end of the four-year term – there are compelling arguments on both sides of the debate. Section 7(6), dedicated exclusively to the office of the Inspector-General of Police, offers a provision specifically addressing matters related to the IGP’s tenure. In contrast, Section 18(8) is a more general provision that applies to all personnel in the police force.

When applying the principle of statutory interpretation that distinguishes between general and specific provisions – the Expressio Unius Est Exclusio Alterius rule – a strong case can be made for Section 7(6) prevailing over Section 18(8) in matters concerning the tenure of the IGP. This rule of statutory construction was prominently endorsed by the Supreme Court in the case of Inakoju v. Adeleke (2007) LPELR-1510, where Hon. Justice Niki Tobi affirmed the elementary principle that “where the Constitution or a statute contains a general provision as well as a specific provision, the specific provision will prevail over the general provision.”

Further elucidating this principle, the Supreme Court in F.M.B.N v. Olloh (2002) LPELR – 1271 (SC) reinforced that where a statute includes both a specific provision and a later general provision addressing the same subject, the general provision should not be interpreted as superseding the specific one unless there is an unequivocal legislative intent to do so. In essence, the application of this principle ensures that a special provision cannot be derogated by a more general provision, as such an interpretation would undermine the intent of the special provision.

The maxim, generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa – meaning "a general clause does not extend to those things which are specially provided for before" – is foundational to statutory interpretation. It asserts that when two provisions – one specific and the other general – address the same subject matter, the case at hand must be governed by the specific provision, as it reflects the legislature’s intent to address that particular situation. Consequently, Section 7(6) should take precedence over Section 18(8), as it directly governs the tenure of the IGP, reflecting a deliberate and tailored legislative decision.

Conversely, the language of Section 18(8) is notably broad and general in its scope. This provision explicitly encompasses "every" police officer and further clarifies its applicability to all officers who are either recruited or appointed. From this perspective, it could be argued that the provision was designed to encompass the office of the Inspector-General of Police, given that the IGP is likely the only police officer appointed to his role in a manner consistent with the broader recruitment framework outlined in the section.

This interpretation aligns with the general principle of statutory construction known as the literal rule. Under this rule, when the language of a statute is clear, plain, and unambiguous, there is no need to depart from the ordinary, natural, and grammatical meaning of the words, unless doing so would lead to an absurd or unreasonable result. Applying this approach to the current debate, one could argue that the four-year term for the IGP, as stipulated in Section 7(6), does not abrogate the broader provisions of Section 18(8) concerning time spent in service. Consequently, an IGP would be subject to both provisions, as they could be construed harmoniously within the legislative framework.

This would seem to be the interpretation favoured by the Attorney-General, who, in his press statement on the matter, is quoted to have stated: “The appointment of Egbetokun which took effect from 31st day of October, 2023 would have come to an end on his attainment of 60 years of age on (the) 4th day of September, 2024. However, before his retirement age, the Police Act was amended to allow the occupant of the office to remain and complete the original four year term granted under Section 7(6) of the Act, notwithstanding the fact that he has attained the age of 60 years. This has, therefore, statutorily extended the tenure of office of Egbetokun to and including 31st day of October 2027 in order to complete the four-year tenure granted to him.”

The 2024 amendment to the Police Act sought to provide a clear legal resolution to the apparent conflict or at the very least, the lacuna, between Sections 7(6) and 18(8), ensuring that the tenure of the IGP is governed by the terms of his appointment rather than the general provisions relating to police officers. The amendment introduces a new subsection, 18(8)(A), which stipulates that, notwithstanding the provisions of subsection 18(8), any individual appointed to the office of the IGP shall remain in office until the end of the term specified in their appointment letter, in accordance with Section 7(6). This new provision effectively carves out an exception for the IGP, thus altering the earlier interpretation of “every police officer” to mean “every police officer except the IGP.”

Despite this clarification, the legal battle over Egbetokun's continued tenure persists, with at least one ongoing court case questioning the constitutionality of the amendment.

Critics argue that the office of the IGP, being constitutionally established, should not have its tenure altered by a mere Act of the National Assembly. However, while the Constitution addresses the appointment and operational authority of the IGP, Section 214(2)(a) grants the legislature the power to prescribe the organisation and administration of the police force, including provisions concerning tenure of appointment. This contrasts with the situation of judicial officers, whose tenure and retirement ages are enshrined in the Constitution and can only be altered through a constitutional amendment, such as the Fifth Alteration Act No. 37 of 8 June 2023, which raised the retirement age for judges. Since the Constitution provides that these matters can be prescribed by an Act of the National Assembly as it relates to the police, changing the tenure of the IGP does not require constitutional amendment.

At the heart of this ongoing controversy lies a pervasive sense of mistrust, particularly given the history of a close relationship between President Bola Tinubu and the current IGP. The rapid passage of the 2024 amendment, perceived by some as being tailored to the benefit of Egbetokun’s continued service, has raised suspicions regarding the timing and intent behind the change. Critics contend that the amendment, coming at a time when the IGP's tenure was nearing its statutory limit, smacks of opportunism. This suspicion has fuelled broader concerns about the integrity of the legislative process, leading to a challenge that goes beyond the legality of the amendment itself.

Ultimately, the controversy underscores a deeper issue of trust in the political system, highlighting how decisions perceived as self-serving can undermine the legitimacy of legal reforms, even when they are technically sound. Therefore, the amendment to the Police Act in 2024 has continued to maintain the reputation of a legal means to justify an illegitimate tenure extension.

Funmilayo Odude is Partner at Commercial and Energy Law Practice (CANDELP).