Legal problem with Tinubu’s Homeland Security Adviser appointment: by Farooq Kperogi

Yesterday, human rights lawyer Femi Falana, SAN, called my attention to a simple but important legal point that has been lost in the public discussion of President Bola Tinubu’s appointment of Major General Adeyinka Famadewa (rtd) as Special Adviser on Homeland Security.

He said the appointment short-circuits the Constitution and the Terrorism (Prevention and Prohibition) Act 2022. At his prompting I looked them up.

There’s no question that the president has the constitutional right to appoint special advisers. Section 151 of the 1999 Constitution says plainly that “the President may appoint any person as a Special Adviser to assist him in the performance of his functions.”

So, the problem is not the appointment itself. The problem is the responsibilities assigned to the new office. They overlap with, duplicate and usurp powers that extant Nigerian laws already give to the National Security Adviser.

The official statement announcing Famadewa’s appointment says the office is meant to strengthen “internal security coordination,” enhance “intelligence-driven operations” and deepen “inter-agency collaboration” in dealing with security threats. It also says the appointment will improve “coordination of homeland security initiatives, intelligence integration, and proactive risk management.”

Those words sound reasonable until they are placed beside the Terrorism (Prevention and Prohibition) Act 2022. That Act already gives the NSA statutory responsibility for the same things. Section 4 says the NSA shall formulate policies for “concerted counter-terrorism and terrorism financing efforts,” ensure the formulation and implementation of a comprehensive counterterrorism strategy for Nigeria, provide support to relevant security, intelligence, law enforcement agencies and military services, and establish the National Counter-Terrorism Centre with the approval of the president.

Section 5 is even more direct. It says that “in order to strengthen inter-agency cooperation and coordination, improve synergy, joint working and effective multi-agency operability,” the NSA shall work with relevant agencies to develop standard operating procedures and instruments.

That is almost exactly what the Presidency now says the Homeland Security Adviser will do. If the NSA is already legally charged with inter-agency cooperation, security coordination, joint working and multi-agency operability, what exactly is left for a Homeland Security Adviser with a similar brief?

The Act goes further. Section 6 establishes the National Counter-Terrorism Centre “in the office of the National Security Adviser.” It says the Centre “shall be the coordinating body for counter-terrorism and terrorism financing in Nigeria.” It is also required to coordinate counterterrorism policies, strategies, plans and support in the performance of the NSA’s duties.

The same section assigns duties to the Centre that include terrorism research, analysis, intelligence support, countering violent extremism, building capacity for counterterrorism operations and ensuring that relevant agencies receive timely intelligence and analysis. These functions are the very heart of internal security coordination.

Section 7 then says the National Coordinator of the Centre reports to the NSA and performs such other related functions as the NSA may assign. Section 8 says the NSA exercises supervisory functions over the Centre.

So, the law has already created a chain of responsibility. The NSA supervises the Centre. The Centre coordinates counterterrorism and terrorism financing. Relevant intelligence, security and law enforcement agencies work within that statutory framework.

There is also a constitutional point. The Constitution establishes the National Security Council and names the NSA as a member of it. The Council includes the President, Vice President, Chief of Defense Staff, ministers responsible for internal affairs, defense and foreign affairs, the NSA, the Inspector-General of Police and such other persons as the president may appoint.

This means the president can bring other people into the security advisory space. But the Constitution specifically recognizes the NSA in the National Security Council. It does not specifically create a Homeland Security Adviser with independent coordinating authority.

There is yet another level. Section 218 gives the president power to determine the operational use of the armed forces. It also says the president may delegate that power only to “any member of the armed forces of the Federation.” A retired general serving as a special adviser does not automatically become a serving member of the armed forces.

Section 215 says the Nigeria Police Force is under the command of the Inspector-General of Police and that lawful directions on public safety and public order may come from the President or a minister authorized by the President. A special adviser is not listed as a command authority over the police.

The National Security Agencies Act also recognizes a coordinator on national security for intelligence coordination. That officer is charged with advising the president on intelligence activities, making recommendations to the president, correlating and evaluating intelligence reports relating to national security and disseminating such intelligence within government.

Falana’s warning deserves serious attention. A Homeland Security Adviser who merely advises the president creates no legal difficulty. But a Homeland Security Adviser who coordinates internal security, integrates intelligence, supervises inter-agency collaboration, manages homeland security initiatives or directs operational security responses walks into powers that already belong elsewhere under Nigerian law.

Tinubu can, of course, create a new advisory office. No one disputes that. But if he wants a Nigerian equivalent of a homeland security czar with real coordinating authority over internal security agencies, intelligence integration, counterterrorism structures and operational response, he cannot achieve that by a news release. He needs law.

That would require sending a bill to the National Assembly to amend the Terrorism (Prevention and Prohibition) Act 2022. If the new office is also to alter constitutional security structures, police command channels or armed forces operational authority, then the Constitution itself would have to be amended.

Anything short of that will create confusion. It will leave the country with two offices claiming overlapping authority over the same security space. In a country already burdened by weak coordination, institutional rivalry and poor implementation, creating another vague security office will deepen the disorder.

The issue is not Famadewa’s competence. By all accounts, he is experienced in military intelligence and security coordination. The issue is legality. In national security, unclear authority is dangerous. Nigeria does not need another title in the Villa. It needs a lawful, coherent security infrastructure.

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