Lawyers have disagreed with Vice President Prof. Yemi Osinbajo on the appropriate constitutional steps for the appointment of a chairman of Economic and Financial Crimes Commission (EFCC), insisting that the presidency must seek the input of the Senate.
Prof. Osinbajo had escalated the submission of a Senior Advocate of Nigeria (SAN), Mr. Femi Falana, that the president should not have sent Ibrahim Magu’s nomination as acting chairman of EFCC to the Senate for confirmation.
He quoted Section 171 of the Constitution and argued that although the EFCC Act requires that EFCC chairman should be confirmed by the Senate, that part of Section 171 of the 1999 Constitution, as amended, which is superior to the Act, does not order such confirmation.
The position of the Vice President therefore raised a fresh puzzle to the battle between the Executive and the Legislature over the appointment and confirmation of Magu as chairman, particularly whether the EFCC Act is not inferior to the Constitution.
Lawyers who spoke to The Guardian independently, held that before the acting chairman of the commission, Ibrahim Magu can assume office, he must get the approval of the Senate as provided in the EFCC Act.
Stressing that it would be legally wrong for an EFCC chairman to be appointed without clearance, Human Rights activist and Senior Advocate of Nigeria, Mike Ozekhome said: "Section 171 of the 1999 dubiously touted by these intellectual revisionists, merely gives the President power to appoint persons to the offices therein specified.
"They include, SGF, Head of Service, Ambassadors/High Commissioners, Permanent Secretaries, Heads of MDAS and, personal staff of the President. The Executive Chairman of EFCC, created long after the promulgation of the 1999 Constitution, was never one of such offices.
"We therefore have to resort to Section 2(3) of the EFCC (Establishment) Act, 2004, which deals with this issue. It provides that: "the Chairman and members of the Commission, other than ex-officio members shall be appointed by the President subject to the confirmation of the Senate."
Ozekhome maintained, "The above section is too clear to admit of any ambiguity," insisting that the President cannot validly appoint the EFCC Executive Chairman without the express "confirmation of the Senate".
"If the Senate refuses, as it has done, that ends Magu’s tenure. Heavens will not fall. He ceases to be in office in any capacity. "Acting" is not prescribed by, nor, envisaged by section 2(3) EFCC Act. "Acting" is not forever," Osekhome declared.
Former executive secretary of the Nigerian Bar Association (NBA) Nimi Walson-Jack, argued that the Act setting up the EFCC specifies anyone nominated as chairman of the commission is subject to Senate confirmation.
He said: "The National Assembly has powers to make laws and in making those laws, it determines what is the structure of the organisation it is setting up. In some of these organisations, the National Assembly allows the executive to make nomination without confirmation, and in some instances considered weighty, they say the people should come for confirmation"
"Now you have a made a law and you have said the people should come for confirmation. If you follow some argument that EFCC is not listed in the constitution as an organisation that should go for conformation, then EFCC will not exist. That means that the National Assembly cannot establish a commission or agency not mentioned in the constitution."
On his part, Lucius Nwosu (SAN) said the President is administratively bound to send the name of an EFCC chairmanship nominee to the Senate for confirmation, noting that though the rejection of the nominee might be seen as at act of bad faith, this does not behoove on the presidency to say so, as the lawmakers are representatives of the people and performing their constitutional function.
"In administrative law, where a man has a discretion to say either yes or no, if he exercises that discretion and says no, he has exercised it. You cannot say he has not exercised his dissection. Rightly or wrongly, his answer is no," said Nwosu.
Constitutional lawyer and former Chairman of the Kaduna State branch of Nigerian Bar Association (NBA), Festus Okoye, said Magu must get the confirmation of the Senate for his nomination by the Presidency, in order to function in the Office according to law.
Okoye added: "If the EFCC Act contravenes the constitution as is being speculated, it is only a court of law that can make that determination. The law as it stands today is that the Chairman of EFCC must go through the confirmatory process of the Senate. The Presidency is in order in appointing an individual in an acting capacity, but the moment such an individual is rejected by the Senate such an individual can no longer be active in an acting capacity."
A Lagos lawyer, Ms Uju Okeke argued that the EFCC is not one of the Federal Executive bodies specifically mentioned and created in sections 153-169 (listed in third schedule) which appointment and removal is provided for in section 171 of the Constitution.
Her words: "It is worthy of note that these bodies are not exhaustive, giving room for creation of others as the need arises. Of course, the newly created ones will be in accordance with the establishing Act.
"EFCC came into being, pursuant to an Act of National Assembly in line with section 4 of the constitution. This amended Act of 2004 established the Commission. Section 1(1) of the Act provides that EFCC shall be constituted and function in accordance with the Act. Section 2 lists members of the Commission. Section 2(2) provides that only the chairman and secretary are in full time position. "Section 2(3) provides that chairman and members are to be appointed by the President subject to Senate’s confirmation. Section 3(1) provides that the chairman and members shall hold office for 4 years, maybe reappointed for another 4 years and no more."
While stating that the position of ‘acting chairman’ is unknown to the EFCC Act, she said by refusing to abide by section 2(3) of EFCC Act tantamounts to the executive questioning the legitimacy of NASS to enact EFCC Act, which is indirectly questioning section 4 of the Constitution that gave the National Assembly its powers.
Similarly, Michael Ogunjobi, said the concept of separation of powers is the fulcrum of the Constitution of Nigeria and is indispensable in any discourse of the critical constitutional issue raised by Section 2(3) of the EFCC Act on whether the subjection of the President’s appointment of Magu to Senate confirmation is consistent with or is a derogation from Section 5(1)(a) of the Constitution vesting the executive power of the Federation in the President.
However, on a different note, Mr. Kunle Odufayo thinks that the issue of appointment of executive officers of government agencies has been well stated in the constitution about those that need to be referred to the Senate and those that need not.
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