Magu: Let Supreme Court decide, say SANs
The ding-dong between the Presidency and the Senate over Economic and Financial Crimes Commission (EFCC) Acting Chairman Ibrahim Magu continues. For the umpteenth time, the Presidency has restated that Magu, whose nomination as EFCC chair the Senate has rejected twice, is the man for the job. The Senate has said Magu must go for it to do its job of confirming nominees for executive positions. But the Presidency is not ready to balk. Lawyers point the way out.
There seems to be no end to the feud between the Senate and the Presidency over the confirmation of the Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu.
The lawmakers are quarrelling with the Presidency for keeping Magu in office despite their rejection of his nomination twice.
But, according to a statement credited to Acting President Yemi Osinbajo, the Senate’s confirmation is not necessary.
The Senate saw Prof Osinbajo’s position as confrontational and asked him to retract the statement. The Acting President, leaning on Section 171 of the Constitution, refused to do so.
Although senators were divided on the issue, on resumption from the Eid-il-Fitri break last Tuesday, they renewed hostility against the Presidency.
Immediately after Senate President Bukola Saraki read a letter from Osinbajo, requesting for the confirmation of Mr. Lanre Gbajabiamila as Director-General of the National Lottery Regulatory Commission, Senator Ahmed Sani Yerima (APC, Zamfara) raised a point of order on the Acting President’s statement.
He insisted that the Senate discussed the Acting President’s statement before considering the request for Gbajabiamila’s confirmation.
To show that it meant business, the Senate, after its debate, adopted some resolutions asking the Acting President to withdraw the statement that the Senate does not have the power to confirm certain nominees.
It said the Acting President must respect the Constitution and other laws on confirmation of appointments.
It resolved that unless the Acting President did this, “the Senate would suspend all issues relating to confirmation of nominees from the executive until all issues of confirmation as contained in the Constitution and laws of the Federation are adhered to”.
In addition, it asked the Acting President to respect the rejection of nominees by the Senate.
Prof Osinbajo in April, while speaking on Magu’s rejection, said: “It is up to the Senate to make their judgment, and it is up to us to say what we want to do. If our candidate is rejected, we can re-present him. No law says we can’t re-present him.”
In his response to the threat of the Senate, Prof Osinbajo, who spoke through Governor Nasir El-Rufai on Thursday in Kaduna, during the inauguration of the EFCC Zonal office, insisted that “Magu is the man for the job”.
The Acting President said: “We have every confidence in Magu to fight corruption to a standstill. He will remain the EFCC chairman as long as I remain the Acting President and as well as Muhammadu Buhari remains the President.
“It is our belief that Magu will continue to remain a nightmare for corrupt people for years to come.”
Some observers are, however, worried about the effect of the continuing face-off between the two arms of government over Magu. To some, the threat may have political undertone. To this group, the threat to get Magu out of office may not be unconnected with the agency’s plan to recover $3 million allegedly laundered for a governor, from the London-Paris Club refund. Some governors are alleged to be behind the scheme to get him out of office to forestall investigation by the agency.
More worrisome to them are the Senate’s resolutions taken at a time it is expected to maintain status quo because of the cases in court on Magu’s confirmation.
For instance on Friday, a Federal High Court in Abuja struck out a suit seeking to compel President Muhammadu Buhari to sack Magu and the suspended Secretary to the Government of the Federation, David Lawal.
The decision was informed by a change of mind by the plaintiffs – Save Nigeria Group (SNG) and Kingdom Human Rights Foundation International (KHRFI) – whose lawyer, Kingdom Okeke, applied to withdraw the cases.
The groups filed the suit marked: FHC/ABJ/15/1072/16 on December 29, 2015, in the wake of the corruption allegations levelled by the Senate against Lawal and Magu.
Okeke applied orally for the withdrawal of the case because his clients had reconsidered their position on the matter in the public interest.
After listening to Okeke, Justice John Tsoho struck out the case.
Okeke said after the court’s proceedings: ”The boards of the plaintiffs looked at the issue of the $43 million discovered in a flat in Osborne building in Ikoyi, Lagos and discovered that Magu had done well.”
Activist lawyer Femi Falana (SAN) said the Senate lacked the power to confirm or approve any person appointed by the President to hold office in an acting capacity.
He advised the Presidency to ignore the Senate’s resolution on Magu’s removal.
His words: “The appointment was made by the President sequel to section 171 (1) of the Constitution. After Mr. Magu had acted in that capacity for over a year, the Senate refused to confirm his appointment as the substantive Chairman of the EFCC. However, as President Buhari was satisfied with the performance of Mr. Magu, he decided to retain him as the Acting Chairman of the EFCC.”
Falana added: “The resolution of the Senate was alleged to have been anchored on Section 2(3) of the EFCC Act which provides as follows: ‘The Chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to confirmation of the Senate.’”
In a statement entitled: “The illegality of Senate Resolution on Mr. Ibrahim Magu!”, Falana said the Senate’s action constitutes an affront to Section 171 (1) of the Constitution.
He said the Senate ought to have known from the clear and unambiguous provision of Section 2 (3) of the EFCC Act that it has not been vested with the power to confirm or approve any person appointed by the President to hold office in an acting capacity before passing its resolution.
He said: “To that extent, the resolution of the Senate constitutes an affront to Section 171 (1) of the Constitution which stipulates that power to appoint persons to hold or act in the offices to which this section applies or to remove persons so appointed from any such office shall vest in the President”.
He noted that Section 2 (3) of the EFCC Act relied upon by Senate to justify the non-confirmation of the Chairman of the EFCC is inconsistent with Section 171 (2) of the Constitution.
“Indeed, of all the positions listed in subsection 2 of the Constitution, it is only the appointment of ambassadors and high commissioners made by the President that require the confirmation of the Senate. See Section 171(4) thereof.
“Since the EFCC is an extra-ministerial department of the Federal Government, the appointment of its chairman does not require the confirmation of the Senate. In other words, Section 2 (3) of the EFCC Act is inconsistent with section 171 (2) of the Constitution. To that extent, the resolution of the Senate based on the EFCC Act is an exercise in futility.”
He noted, however, that neither the Presidency nor the Senate has deemed it fit to seek interpretation of the relevant provisions of the Constitution from the Supreme Court, on the power of the President of the Republic to make certain appointments without the confirmation of the Senate.
More lawyers react
Other lawyers, including Dafe Akpedeye (SAN), Babatunde Fashanu (SAN), former Chairman, Nigerian Bar Association (NBA) Ikorodu, Dotun Adetunji and incumbent chairman Levi Adikwaone, also spoke on the threat of the Senate to Vice President Osinbajo.
Although they held dissenting opinions on whether the Presidency or the Senate was right, they agreed that the crisis was unnecessary.
Akpedeye described the impasse as rather unfortunate. He said: “The principle of separation of powers and checks and balances in a constitutional democracy such as ours is not in place for political tussle or ego clash but to check the propensity to abuse power by any arm of government.
“The question that each party should ask is whether their stand is in agreement with the the Rule of Law? They need to do some form of introspection to see the harm this tussle does to us as a nation; heating up the polity or stifling the run of administration at a period where we are yet grappling with economic and security issues cannot be in the collective interest of Nigerians. It is rather unfortunate.”
Akpedeye noted that the implication on the Presidency and the Upper Chamber was quite enormous.
He said: “If the Senate makes good its threat of withholding any further confirmation, the affected sectors will bear the brunt. For the constitution to require Senate’s confirmation for an office, it must be one that is very important and strategic to a national life. The civil servants in those sectors may continue the basic tasks to keep them running at the basic level but phenomenal growth and development may not be achieved. More instructive is the fact that this impasse may further strain the relationship between the Executive and the Legislature. Where there is no harmonious relationship between those two, good governance becomes difficult, if not impossible”.
He reasoned that it was not likely the impasse would have much effect on government’s commitment to corruption fight. To him, the fight against corruption is not a one-man show.
“The slur I see in the narrative is that the Senate’s rejection of his nomination is hinged on an alleged damning DSS report.”
He, however, disagreed with the opinion that Section 171 of the Constitution confers power on the Presidency to appoint Magu in an acting capacity.
“That section clearly itemises the offices where persons may be so appointed in an acting capacity. The Latin term Expressio Unius Est Exclusio Alterius is apposite in this regardcv- that is: the expression of one thing is the exclusion of the other. If the Legislature had meant to include the EFCC in that list, it would have referred to it expressly.
“However, the doctrine of necessity may be relied on in this case, as vacuum is undesirable in public office. Nevertheless, the idea of appointing anyone in an acting capacity is for a ‘stop-gap’ or if you like, interim purpose. It is not meant to be in perpetuity. Perpetuating same amounts to indirectly side-tracking the law that provides for substantive appointment to the office.
“S 3(1) of the EFCC Act stipulates that the Chairman shall hold office for a period of four years and may be appointed for a further period of four years. The law does not envisage elongation of the Chairman’s term under the guise of acting chairmanship. In my opinion, it is not only unlawful, it is akin to setting a bad precedence.”
He said the way out is for both parties to sheath their sword and find a middle ground.
“The Executive should not make it seem like the fight against corruption is dependent on any individual. The Senate should also refrain from halting their constitutional duties to browbeat the Executive to their side. A political solution can be found.
“Where this cannot be achieved, the third arm of government- the Judiciary should be called upon to interpret the extent of the powers of each arm as it relates to this imbroglio. The verdict of the Supreme Court should thus be final and binding on both parties.”
‘Allow Magu do his job’
Fashanu blamed the development on the executive which he said ought not to have sought confirmation in the first place.
He said: “In the constitution, the EFCC is not among the government bodies that need to be confirmed when they appoint their head and the constitution overrides any EFCC Act which is an inferior legislation. They do not have to seek confirmation again. If anybody is not happy about it, then they can go to court.”
Fashanu stated that the reason the senate threatened the Vice President was because government did not sending Magu for reconfirmation again.
“Osinbajo is of the view that they don’t need confirmation, they don’t need to send him back to them. Now that the Senate has now seen that they have been defeated, they are now saying that they would not confirm any body that needs confirmation under the constitution.
“If the government says this is the person they want, and we can all see that he is performing, except of course if the Senate has something to hide, and I believe that those in the Senate have something to hide.”
He said there was nothing illegal if the government decides to keep Magu in office in acting capacity.
‘I don’t know why they are taking it so personal that they had to remove Magu. Why are they taking it personal?”, he asked
Fashanu advised that the government should ignore the Senate and keep Magu in office.
“It is Magu that is the anti- corruption face! and the Senate cannot appoint somebody for the executive. It is the executive that has gotten the mandate. And if the government has come to the conclusion that they don’t need their confirmation, then that should be it. If they feel it is Magu that can do the job, they don’t need their confirmation. If the Senators feel they should confirm, let them go to court. It is not by saying that if there are other people that need confirmation, they would not confirm. Is that what we elected them for? They are not doing their job. The path that the Senate has taken is pro-corruption. If they want to support the anti-corruption programme, then they should allow government to pick whoever they like. Let them allow Magu to do his job instead of behaving like school boys”, he added.
‘Tit-for-tat not necessary’
Ananaba said the directive of the Senate to the acting Vice President was not right, describing it as a result of “tit for tat.” He noted the row between the Senate and the Presidency is not what is needed in the country now.
Ananaba said: “We need cooperation between the arms of government. I believe this particular incident should have been referred to the court for proper solution. There is a reason why sections 4, 5 and 6 are put near each other. It is because they have to work with each other. So, if four and 5 have disagreement, they go to 6. So, now, the matter should be referred to the court so that the court would determine this confirmation issue.
“The argument is that the constitution does not provide for confirmation. The practice has been by the earlier governments, including this government, to send for confirmation. So, why would you send for confirmation if you didn’t think that it was necessary? The issue is that something as important and constitutional, that the Senate should have been neutral.
“But I think that the rejection of Magu should not raise so much problem. It should be referred to the court to determine whether confirmation is required. And when the court makes a pronouncement, that matter would be left to rest rather than the reactionary situation that we are seeing now.”
He said the resolution of the senate that if Magu is not removed, they won’t confirm any other person needing confirmation would affect the progress of government and economy ‘which is why we need government.”
“Whereas this country is facing more problems than issue of confirmation or no confirmation. Our President is sick. We need to pray for him, we need to come together. How can we now begin serious fight again even when our President is sick, even when what we have is an acting President? I think this is not the best for us. I think we should take it in a matured manner, refer it to the court and then we would not have issues”, he said.
‘Judicial solution required’
Adetunji said the “only consequential step forward is to invite the court to expeditiously state the true position of the law once and for all.
“Both the executive and legislature, as it were, have the onus on them constitutionally as per Mr. Magu’s appointment but the ensuing power play is what the court needs to rationalise and decide upon once and for all.
“In my humble opinion, the war against corruption is too important to be mired in this type of controversy and as such, an urgent solution is required. The present situation of the country in the instant is a risky one considering the impassé between the Senate and the Presidency.
“If the lawmakers make good their threat not to confirm nominees for public office henceforth until the battle between the two arms of government over the fate of the Acting Chairman of the EFCC, Mr Ibrahim Magu, is resolved, this will have an adverse effect on the situation of the country apart from the fact that it will affect preparations for the 2019 general elections and other important national activities.
“It might equally tempt the Executive to also resort to counter-measures which could plunge the nation into crisis and endanger our democracy.
“This obviously is a needless power struggle and a distraction to the nation’s growth. The timely intervention of the court in the circumstance seems to be one of, if not the only way out of this quagmire,” he said.
Adikwaone said: ”I really do not know the basis for the face-off between the Senate and the Presidency on the matter of Magu as the EFCC helmsman.
“When you juxtapose Section 171 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) with Section 2(3) of the EFCC Act, I am of the respectful opinion that until the court says otherwise, the position of Senate would stand.
“Senate’s position is supported by the Executive vide the report of one of its agencies, the Department of State Services (DSS).
“Two, there is an extant law – Section 2(3) of the EFCC Act – expressly empowering the Senate to confirm the appointment.
“Thirdly, the Presidency, on its own accord presented Magu to the Senate for the umpteenth time for confirmation. For the Presidency to turn around at this point in time smacks of approbating and reprobating.
“For me, Magu, respectfully has been rejected ex cathedral, ex cautela! The only thing that can save him is a court seized with jurisdiction.