I am not a lawyer, and so, I cannot not speak with authority on issues of law. But there are certain issues that are so plain and clear that even when lawyers with expert knowledge are divided, as a lay­man you know those that are being objective and the ones that are subjective and only taking their positions based on sentiments or where their in­terests lie.
On the issue of Ibrahim Magu, the argument of legal pundits who have contended that he cannot continue to act as the Economic and Financial Crimes Commission (EFCC) Chairman, after his repeated rejection by the Senate which is the confirming author­ity, by the law establishing the anti-corruption agency, makes more sense to me.
Section 2(3) of the EFCC Act provides that “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 the confirmation of the Senate.’’
The question therefore is: Of what relevance is section 2(3) of the EFCC Act If the nomi­nee of the President for the po­sition of the EFCC Chairman can continue to act indefinitely, against Senate refusal to grant his confirmation?
The different Acts of the various agencies, parastatals, commissions and bodies of government have the mode of appointments of their respec­tive heads and other top of­ficials clearly spelt out. While some require the confirmation of Senate to become effective, many do not need such par­liamentary approval to have legal force and effect after the appointment has been made by the President.
A Lagos lawyer, Sylva Og­wemoh (SAN) was reported to have said: “The power of the President of the Federal Repub­lic of Nigeria under the Eco­nomic and Financial Crimes Commission (Establishment) Act, to appoint a Chairman for the EFCC is not absolute. The President’s appointment is subject to confirmation by the Senate of the Federal Republic of Nigeria.
“What this means in effect is that the President cannot un­der any circumstance act alone in the appointment of a Chair­man for the EFCC, without the confirmation of the Senate, and where the Senate has refused confirmation as in the case of Magu, that matter ends there.”
On the other hand, another Lagos-based lawyer, Femi Fala­na (SAN) said: “With profound respect, in sending the letter to the senate for confirmation, the president relied on section 2 subsection 3 of the EFCC Act but that section has to be read subject to the constitution. So if you do that, section 171 takes precedence over section 2 sub­section 3 of the EFCC Act. So does the president need to ask for confirmation? No.”
In 2008, a social crusader and legal practitioner, Festus Keyamo, had instituted a case challenging the practice of ap­pointing military chiefs (Chief of Army Staff, Chief of Naval and Chief of Air Staff) by the President without recourse to the National Assembly, con­trary to the provisions of Sec­tion 18 (1 and 2) of the Armed Forces Act.
According to reports, “Key­amo had argued in court that the appointments of service chiefs, which are political ap­pointments, could not be dif­ferent from other political ap­pointments that require the confirmation of the National Assembly such as the Chief Jus­tice of Nigeria, Justices of the Supreme Court and Court of Appeal, Chairman of the Eco­nomic and Financial Crimes Commission (EFCC), minis­ters, and so on.”
He asked the court to among other things, determine: “Whether by the combined in­terpretation of the provisions of Section 218 of the Constitu­tion of the Federal Republic of Nigeria, 1999 and Section 18 of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria, 2004, the 1st De­fendant can appoint the Chief of Air Staff, the Chief of Army Staff, and the Chief of Naval Staff without the confirma­tion of the National Assembly sought and obtained…”
While delivering judgment in the Keyamo’s suit in 2013, Justice Adamu Bello of the Federal High Court Abuja (now retired) had reportedly declared the appointments of the service chiefs without ap­proval of the legislature as null and void because they were at variance with Section 18 (1) and (2) of the Armed Forces Act.
The court was also reported to have ruled that “Section 18 (1) & (2) of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria, 2004, is in conformity with the provi­sions of the 1999 Constitution and do not fall within the cat­egory of existing laws under Section 315 (2) of the consti­tution which any sitting Presi­dent may by an order, modify its text to bring it into confor­mity with the provisions of the constitution.”
Today, some eminent law­yers in the likes of Mr. Fa­lana who had hailed the said judgement and commended Keyamo for the great feat are saying President Muhammadu Buhari does not need to send Magu’s name to the Senate for confirmation. With due respect to the highly revered human rights activist, here was his re­mark as published in Vanguard of July 2, 2013, in reaction to the said verdict of the High Court on service chiefs which has not been upturned till date: “The judgement is sound and it is commendable on the part of the plaintiff, my learned friend, Mr Festus Keyamo. The judg­ment has gone a long way to challenge the culture of impu­nity in our country, and it is also a challenge to the Senate to insist on full compliance with the provision of the constitu­tion, with respect to its powers to screen candidates for the po­sition of service chiefs. This is not one of the cases that should be appealed by the govern­ment.”
Why should we now be told that the confirmation of the appointment of Chairman of EFCC by the Senate is not nec­essary? If it was a culture of im­punity for the then President to appoint service chiefs without parliamentary endorsement, why should the appointment of Magu as EFCC Chairman devoid of Senate confirmation not be seen in the same vein?
Well, the good thing is that President Muhammadu Buhari knows Senate approval of the appointment of EFCC Chair­man cannot be ignored. Hence, his decision to set up a com­mittee headed by Vice Presi­dent Yemi Osinbajo to liaise with the Senate, perhaps, with a view to resolving the issues raised against Magu by the DSS which, to a large extent, formed the basis of his rejection.
No doubt, Magu is fit for the job. He has performed excel­lently in acting capacity. He has shown great zeal for the anti-corruption war. Nonetheless, the law must be followed to for­malize his appointment. If the Presidency cannot prevail on the Senate to reverse Magu’s re­jection, the appropriate step to take is to send a replacement. Those setting the stage for war and urging the Presidency to exert all its strength to bring down the Senate do not mean well for Buhari’s government.
–Michael Jegede, a media practitioner writes from Abuja - The Authority