The 2024 amendment to the Police Act 2020 in Nigeria, particularly the insertion of Subsection (8A) to Section 18, has sparked considerable debate regarding its effect on the tenure of Mr.
Egbetokun, the Inspector General of Police (IGP). The former presidential candidate of AAC, Mr O. Sowore was alleged to have called Mr Egbetokun “an Illegal IGP” Mr. Egbetokun, having been appointed as IGP in October 2023 when the Police Act 2020 was not yet amended, was initially expected to retire on 4th September, 2024, upon reaching the age of 60, in compliance with Section 18(8) of the Police Act 2020. However, the amendment, which came into force around July 2024 or shortly afterwards, appears to extend the tenure of any appointed IGP until the completion of their four-year term, notwithstanding the mandatory retirement provisions. The crucial legal issue is whether Mr. Egbetokun can rely on the amended provision (Section 18(8A)) to remain in office beyond his 60th birthday, given the legal principles governing statutory interpretation in Nigeria. I have also read AGF Fagbemi’s legal opinion on this issue. I humbly disagree with the AGF on this issue and my legal opinion on this would be seen below.
The Principle of Non-Retroactivity Adjectival Law.
A fundamental tenet of statutory interpretation in Nigeria is the principle of non-retroactivity, as enshrined in Section 1 and 2 of the Interpretation Act. This Principle was affirmed in the case of OLANIYI v. AROYEHUN (1991) 5 NWLR (194) 652, where the Supreme Court lucidly stated that Constitution and Statutes operate prospectively and not retrospectively unless it is expressly provided to be otherwise. This principle dictates that legislation cannot have retrospective effect unless explicitly stated within the statute. The Supreme Court, in the recent case of AGBETI v. STATE (2024) LPELR-62006(SC), reaffirmed this principle, holding that no law should be applied retroactively no matter how popular, unless the law specifically states so.
Per MOHAMMED LAWAL GARBA, JCA In INEC v. NYAKO & ORS(2011) LPELR-
4314(CA), stated as follows; “The right of the 1st Respondent to complete the four (4) years tenure prescribed by the Constitution before the amendment cannot logically be said to have been taken away by an amendment made after it accrued to and became vested in him without the express provisions in the amendment to that effect. To attempt to do so would clearly be importing into the amendment what is not contained therein or even intended by it. The law as I know it is that the express mention of a thing in a Statute means an intention to exclude what is not so mentioned and it is a known rule of interpretation to exclude what is not stated in the Statute or Constitution. The expression in Latin is “expression unirous exlusio alterius””
Application to the Amended Police Act.
The Police Act of 2020(As Amended), which introduced Section 18(8A), does not contain any express provision indicating that it should have retroactive effect. The absence of such express wording means that, in accordance with AGBETI v. STATE (Supra), the amendment can only apply prospectively. Since the amendment took effect in 2024, any IGP appointed after this date would benefit from the extended tenure provision, while those appointed before the amendment remain bound by the pre-existing provisions of the Police Act 2020.
Implications for Mr Egbetokun
Mr. Egbetokun was appointed IGP in October 2023 under the Police Act 2020, which mandated his retirement upon reaching 60 years of age. Since the amendment came into force only in 2024, well after his appointment, it cannot be applied retroactively to alter his retirement obligations. Therefore, upon reaching his 60th birthday on 4th September, 2024, Mr. Egbetokun was legally required to vacate his position.
If Mr. Egbetokun insists on remaining in office beyond 4th September 2024, he would be acting ultra vires, as his tenure cannot be extended under a provision that lacks retroactive application. Any attempt to do so would be in direct contravention of the Interpretation Act and the binding precedent set in AGBETI v. STATE (Supra).
Legislative Intent and Practical Consequences
While the legislative intent behind the amendment is presumably to ensure stability and continuity in the leadership of the police force, the rule of law requires strict adherence to established principles of statutory interpretation. The absence of express retroactivity in the amendment means that any reliance on Section 18(8A) by Mr. Egbetokun would be legally untenable. The correct approach would have been for the legislature to explicitly state that the amendment applies retroactively or for the executive to have reappointed Mr. Egbetokun immediately after the Police Act 2020 (As Amended) was passed.
Conclusion
In conclusion, unless there is an express provision in the Police Act 2020(As Amended) clearly stating that it applies retroactively, it does not apply retroactively, and as such in my opinion, Mr. Egbetokun cannot rely on Section 18(8A) only to remain in office beyond his 60th birthday. The principle of non-retroactivity, firmly established by the Interpretation Act and reaffirmed by the Supreme Court in AGBETI v. STATE (Supra), prevents the application of the amendment to appointments made before its enactment. Therefore, any attempt by Mr. Egbetokun to remain in office would be legally untenable, and his tenure should have ended on 4th September, 2024, in accordance with Section 18(8) of the Police Act 2020.
By Anthony T. Adisianya Esq
