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Tag: confirmation

  • Confirmation of confusion

    There is confusion in the Senate.  When there is uncertainty about the majority party and the minority party in the upper chamber of the National Assembly, it is a striking sign that the Red Chamber is upside down.

    Deputy Senate President Ike Ekweremadu of the Peoples Democratic Party (PDP) and Senate Leader Ahmad Lawan of the All Progressives Congress (APC) argued about the numerical strength of their parties in the Senate on December 13.  It was a curious argument because the position of Senate Leader is supposed to be held by a member of the majority party. So if Lawan holds the position, it should mean that his party is the majority party in the Senate.

    But clearly, the situation is not so clear. For instance, Senate President Bukola Saraki, who was formerly a member of APC, still holds the position despite his defection to PDP in July. He should have been removed from that office because he attained the position on the basis of being a member of the majority party. If Saraki is still President of the Senate, it suggests that PDP is the majority party in the Senate. Is it? If it is not, Saraki’s occupation of the office discredits him and the Senate.

    It is noteworthy that Saraki was quoted as saying: “Our Constitution says members of the National Assembly who so wish (shall elect a President)… it does not say you have to come from the majority party. There are those that know that.” This position is unprincipled.

    Saraki became President of the Senate controversially. He actualised his ascendancy through an unapologetic defiance of his party’s desire and decision. His scheming resulted in a queer combination and cohabitation at the helm of the Senate:  Saraki of the ruling APC, a party elected to power on the premise of progressivism, and Ekweremadu of the unprogressive PDP.  As things stand now, Saraki and Ekweremadu are both PDP members and the Senate leadership is in the hands of PDP.

    It is puzzling that numerical strength became an issue.  But it  is also enlightening. A report captured the argument between Ekweremadu and Lawan: “The Senate Leader pointedly dismissed reports that the confirmation of the spokesperson of the All Progressives Congress (APC) Presidential Campaign Organisation, Festus Keyamo, as a board member of Nigerian Deposit Insurance Corporation (NDIC), did not follow the due process. Lawan said: “The media reported that APC has 57 senators while PDP has 58. For the record, APC senators are 56 while PDP senators are 46. Again, the media reported that majority of senators voted against the confirmation of Keyamo, but that you (Ekweremadu) ruled that the ‘ayes’ had it. I want to put it on record that when you put the first question, it was not clear whether the ‘ayes’ or ‘nays’ had it. But by the time you put the second question, it was clear that the ‘ayes’ had it.”

    The report continued: “Ekweremadu, who appeared uncomfortable with Lawan’s submission, said: “The issue of how we vote is determined by voice vote, and it is based on the decision of the presiding officer. If anybody has issues with the ruling, we can call for division. But since nobody called for any division, it meant that senators were in tandem with the ruling. So, it won’t be proper for newspapers to report what is not correct. As regards the party configuration, I want to say there is no particular statistics for now. We cannot talk about the figures that each political party has because there is no such statistics. So, let it be on record that we have no such record now.”

    The Deputy Senate President’s assertion is absurd. If there are no official figures that can clarify the numerical strength of the parties in the Senate, it is a confirmation of confusion.

    An August 5 report  gives an insight into the comedy of figures in the Senate: “The  crisis rocking the ruling  All  Progressives Congress, APC… took a  dramatic  turn  on the floor of the Senate as  14  senators elected on the platform of the party dumped it for the Peoples Democratic Party, PDP,  and the African Democratic Congress, ADC. With the defection, the number of PDP senators rose from 42 to 56, thereby making it the majority party in the upper chamber of the National Assembly.”

    The report added: “Prior to the development, the APC officially had 64 seats in the Senate,  but now has  50 while the All Progressives Grand Alliance ( APGA) has one  with the remaining two seats vacant on account of the  death  of Senator Ali Wakil ( Bauchi South) and Bukar Mustapha  (Katsina North). The defection of the senators was contained in a letter read by Senate President Bukola Saraki who presided at plenary. They said that their action came after due consultations with their constituents.” Soji Akanbi (Oyo South) “later made a U-turn, saying he remained a member of the APC.”

    The report continued: “Soon after the defection, PDP senators embraced one another, rejoicing that they now form the majority in the red chamber. It got to a point that the Senate Minority Leader, Senator Godswill Akpabio, drew the attention of his colleagues to the fact that his party, the PDP, was now the majority and that he should immediately be recognised as the Majority Leader… After the drama that unfolded at the hallowed chamber, the Senate caucus of the APC said that, in spite of the dumping of the party by 14 of its members for the PDP, it was still the majority party in the upper chamber.”

    It is interesting that Senator Akpabio, who was a PDP member and Senate Minority Leader at the time this mass defection happened in July, is now an APC campaigner. Akpabio moved to APC in August. This shows how things change in the Senate and how senators change.

    There are 109 seats in the Nigerian Senate. This figure has not changed. But who belongs where keeps changing. The public should be clear about where their elected representatives belong, and which party is the majority party in the Senate.

  • Row in Senate over confirmation of EFCC board members

    THE Senate was yesterday forced to step down the consideration and confirmation of members of the Economic and Financial Crimes Commission (EFCC).

    Tempers flared in the chamber over alleged exclusion of Southeast and Southsouth geo-political zones in the nomination and composition of the EFCC members.

    Chairman, Senate Committee on Anti-Corruption and Financial Crimes Senator Chukwuka Utazi presented the report for the confirmation of Ndasule Moses, Lawan Mamman, Galadanci Imam Najib and Adeleke Adebayo Rafiu, as EFCC members.

    The committee gave the nominees a clean bill of health and recommended that they should be confirmed accordingly.

    Although the committee also highlighted the fact that Southeast and Southsouth geo-political zones had no nominees, it said the nominees should be confirmed.

    Senator Victor Umeh raised objection to the confirmation of the nominees and insisted that the report should be stood down.

    He said that the Southeast and Southsouth geo-political zones were not accommodated in the nomination.

    He noted that the fight against corruption involves all parts of the country.

    Umeh said: “The only way to build a united country is by inclusiveness. Today, the Southeast has no representation in the National Security Council.”

    The Anambra Central lawmaker said Acting Chairman of EFCC, Ibrahim Magu, is from the Northeast and the recently confirmed secretary of the commission, Olanipekun Olukoyede, is from the Southwest.

    He said it was unbecoming for the President to go ahead to nominate new appointees with the exclusion of the two zones that had no representation in the commission.

    He added that Mamman hails from the Northeast where the Acting Chairman, Ibrahim Magu comes from and Rafiu is from the Southwest, which already has commission secretary.

    Umeh said the Senate should not allow the nominations to pass.

    Senate Leader Ahmed Lawan said the chamber should go by the recommendation of the committee.

    Lawan suggested that the best way to address the situation may be to amend the EFCC law to ensure that it becomes mandatory for all zones to be represented in the commission.

    Senator Enyinnaya Abaribe said the violation of the law should not be allowed in any form.

    The Abia South senator prayed the Senate to step down the report because the nomination of the EFCC members violated the Federal Character Commission principles.

    Utazi fired back that a committee set up by the Senate to submit report on the alleged lopsided appointments in the country has failed to submit its report.

    Senator Mohammed Ali Ndume said Utazi should be blamed for failing to draw the attention of the leadership to the omission of Southeast and Southsouth in the nomination.

    Ndume noted that Utazi, who is from the Southeast should have taken it upon him to inform the Senate leadership about the anomaly.

    The Borno South senator also said the matter should have been resolved at the committee level instead of heating up the chamber.

    Ndume’s comments did not go down well with Utazi.

    Utazi struggled to take the floor to challenge Ndume, but Saraki refused to give him the go ahead.

    The Enugu North senator sprang from his seat and attempted to force those hackling to sit down.

    “Marafa go and sit down, Marafa go and sit down, Marafa go and sit down,” Utazi continued to shout.

    Read also: Lagos and the garbage question

    Senator Isah Hamman Misau joined the fray to shout Ndume down to no avail.

    Fearing that the situation might degenerate further, Senate President Bukola Saraki called for a closed session to trash out the issue.

    Sources said the matter was robustly discussed at the Executive Session.

    When the senators emerged from the over 15 minute closed session, Saraki announced that the Senate resolved to step down the report for another legislative day.

     

  • Confirmation of EFCC secretary suffers setback in Senate

    THE Senate yesterday deferred the confirmation of Olanipekun Olukoyede, as the secretary of the Economic and Financial Crimes Commission (EFCC).

    Olukoyede, who hails from Ekiti State, is the Chief of Staff to the EFCC Acting Chairman, Ibrahim Magu.

    President Muhammadu Buhari, in a letter to Senate President Bukola Saraki, dated September 10, 2018, nominated Olukoyede as secretary to the commission.

    Saraki, who read the letter in plenary on October 3, 2018, referred it to the Senate Committee on Anti-Corruption and Financial Crimes, to screen the nominee and report back to the chamber.

    Chairman of the committee, Senator Chukwuka Utazi (Enugu North), presented the report of his committee to the chamber yesterday.

    Utazi told the upper chamber that Olukoyede satisfied the committee expectations and answered questions posed to him by committee members.

    The Enugu North senator told his colleagues that the nominee demonstrated competence and sufficient experience to occupy the office for which he was nominated.

    He noted that the committee, having found the nominee qualified and worthy of the office, recommended that he be confirmed as requested by President Buhari

    But, Senator James Manager (Delta South), in his contribution, observed that only few members of the committee signed the report of the screening.

    Manager said since the nominee satisfied the requisite experience and professional requirement, he should be confirmed.

    “I observe that only few signatures appeared on the signature column. However, going through what the chairman of the committee has presented, and knowing full well that this is not very normal time for the Senate, it will not be easy for a chairman of a committee to have all the members to attend. But, however, from the number that appeared, I am sure that they formed quorum.

    “From the report of the committee, since the nominee has the requisite experience and professional competence, that is what we are looking for in a nominee for the kind of office that we screen him for, I therefore, suggest that any other thing can be ignored so that we confirm the nominee,” Manager said.

    On the issue of low turnout by members of the committee during the screening, Utazi explained that some of the senators were out of Abuja on oversight functions while others were engaged on electioneering activities.

    He confirmed that the committee formed quorum during the sitting, where the nominee was screened.

    However, a member of the committee, Senator Isa Misau (Bauchi Central), opposed the confirmation of the nominee vehemently.

    Misau said most members of the committee were not carried along in the screening exercise.

    The senator observed during the screening, some of the nominees were not competent to hold the offices for which they were nominated.

    He wondered why only three senators signed the signature page of the committee report.

    Misau asked the Senate to suspend the confirmation of the nominee so as to allow members of the committee to meet and further deliberate on the report before the Senate could adopt it.

    Saraki, in his ruling, asked the committee chairman to meet with other members to discuss the report to avoid divergent positions on the confirmation of the nominee.

    Utazi explained that he invited all members to the screening of the nominee, but only a few of them attended.

    Saraki ruled that members of the committee should meet and present their report today.

     

  • Yoruba youths seek confirmation of Magu

    The Yoruba Youth Council Worldwide has appealed to the Senate to reconsider its stance on the refusal to confirm Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC).
    Its President, Oladotun Hassan, said it would aid government efforts to bring sanity to the country. The Senate recently refused to confirm Magu for the second time as the EFCC Chairman, after he was presented for confirmation by President Muhammadu Buhari, citing a report indicting him from the Directorate of Security Services (DSS).
    Hassan urged the Senate to show understanding on the matter, noting that the DSS report should not be seen as a court judgment.
    He said: “The Senate has the right to screen any nominee of the President, including Magu, but our appeal to the Senate is that it should reconsider its stand, because the war against corruption requires the support of all. In as much as the Senate has the right to reject Magu, it also has the right to reject DSS report that indicted Magu since it is not a decision of a court of competent jurisdiction.”
    He said the Senate should not to set a bad precedent by equating a report of an agency of government to a pronouncement that must guide its decision.
    The group also called for the lifting of the suspension of the former Senate Leader, Senator Ali Ndume. Hassan said the position of the Yoruba youth is that the Senate has no right to suspend its member for a period of six months.
    He added: “What will be the fate of the people of the senatorial district that he represents during the six months suspension. It is wrong for the Senate to be a judge in its own case; the suspension of Ndume is illegal.”

  • Buhari nominates Ocheni, Hassan for confirmation as ministers

    Buhari nominates Ocheni, Hassan for confirmation as ministers

    President Muhammadu Buhari has nominated Mr. Stepphen Ikani Ocheni (Kogi State) and Suleiman Hassan (Gombe State) for consideration and confirmation as ministers.

    Senate President Bukola Saraki read President Buhari’s letter nominating Ocheni and Hassan yesterday on the floor of the Senate.

    Ocheni, if confirmed, will replace the late James Ocholi, who died in an accident on May 6, 2016. Hassan, if also confirmed, will replace Amina Mohammed, who is now working in the United Nations (UN) as Deputy Secretary General.

    Hassan is one of the 47 non-career ambassadorial nominees confirmed by the Senate last week. Saraki read the nomination letter to inform the chamber.

    It will be captured in the Senate Order Paper before it will be referred to the relevant Senate Committee or considered in the committee of the whole.

    The President’s letter read in part: “In accordance with section 147 (2) of the 1999 Constitution of the Federal Republic of Nigeria as amended, I have the honour to forward the under listed ministerial nominees for confirmation of the Senate.

    “1. Stephen Nkani Ocheni (professor) Kogi State; 2. Suleiman Zarma Hassan (Gombe State.)

    “Copies of their curriculum vitae attached herewith.”

  • Senate and confirmation of Justice Walter Onnoghen

    Senate and confirmation of Justice Walter Onnoghen

    The confirmation of the nomination of Acting Chief Justice of Nigeria (CJN), Justice Walter Samuel Onnoghen, as the Chief Justice of Nigeria (CJN) on Wednesday was one of the high profile confirmation hearings by the Senate.

    The confirmation of ministerial nominees was important, but it was not trailed by intrigue and high wired politics as was the nomination and confirmation of Onnoghen.

    Following the undue delay in the submission of the nomination of Onnoghen to the Senate for confirmation, tongues began to wag. Threats were issued. Ethnic and religious colouration came to play.

    There was palpable apprehension. The three months deadline for Justice Onnoghen to be forwarded to the Senate elapsed. The National Judicial Council (NJC) renewed the nomination to the relief of many who saw confusion in the Judiciary creeping dangerously in the dark.

    At last common sense prevailed. Acting President, Professor Yemi Osinbajo, submitted the nomination of Onnoghen for the exalted position to the Senate for confirmation, once again to the reprieve of most Nigerians.

    The battle shifted from the NJC and the Presidency to the confirming authority, the Senate.

    If you thought that the Senate will do the needful by according the nominee speedy confirmation owing to the fact of the delay in submitting his name, you may have to think again.

    The leadership of the Senate was emphatic that there would not be a special session to consider the nomination of Justice Onnoghen. That was final. The waiting game continued.

    On April 21, when the Senate reconvened plenary, Senate President, Abubakar Bukola Saraki, read Osinbajo’s letter.  There was jubilation in the Senate gallery over the letter.

    On the appointed day, fillers emerged that the confirmation hearing might be aborted. Reason, some powerful forces in the Senate were said to have kicked against the screening.

    Many heaved a sigh of relief when it emerged that the confirmation hearing of Justice Onnoghen was listed as one of the legislative businesses of the day.

    The screening was adjudged as one of the best in recent history. Avoidable controversies trailed the nomination, but the whole claims, real and imagined, collapsed like a pack of tissue.

    Justice Onnoghen was methodical and firm in his answers.

    He was adjudged to have discharged himself creditably. The Senate accordingly did not hesitate to ask him to take a bow. As Onnoghen made to leave the chamber, majority of the lawmakers emptied themselves into his entourage. Most of those who went to see Onnoghen off were later said to be those with cases in court. A handful of other Senators claimed they were shortchanged by the seeming abrupt manner the screening ended.  Those in this category said they had issues they wanted to raise with Justice Onnoghen. There was a mild drama. One of the issues, they said, was the high legal fees lawyers charge politicians. Saraki ruled that the issues are noted and moved on to put the question that the Senate do confirm Justice Walter Onnoghen as CJN. The approval was unanimous. The entire thing was remarkable.

  • Senate: proper procedure for Magu’s confirmation

    Senate: proper procedure for Magu’s confirmation

    Ebun Adegboruwa, Lawyer and Human Rights Activist pulled a surprise today (Monday), 20th February, 2017 when he announced the withdrawal of a suit he had filed at the Federal High Court challenging the nomination and confirmation of Mr. Ibrahim Magu as the substantive Chairman of the Economic and Financial Crimes Commission (EFCC), admitting publicly in the process that recent events has convinced him beyond doubt that Magu is the best man for the job.

    Represented in the proceedings by Mr. Tayo Oyetibo, a Senior Advocate of Nigeria (SAN), who earlier echoed same feelings, the learned Silk also got Mr. Ebun Adegboruwa, the applicant to confirm the development to the court, an opportunity which Adegboruwa seized with courage and candour. I had been briefed to appear for the EFCC Chairman and EFCC in the proceedings supported by the young erudite EFCC Lawyer, Rotimi Oyedepo. Esq.

    We had no option than to welcome the development since it remains our position that Mr. Magu is doing a great job at the EFCC presently and that it is only honourable for the Senate to confirm him as the substantive chair.

    However, in doing so, what is the proper procedure to adopt by the Senate in the confirmation proceedings? Is the senate entitled to adopt a closed door session? An executive session or simply refer the matter to a committee to conduct the confirmation hearing?

    This is the subject matter of this intervention guided by authorities, including pronouncements from the Supreme Court.

    It is our submission that proper confirmation hearing for Magu ought to take place at a plenary where senators (except those disqualified based on likelihood of bias), should be given the opportunity to raise questions to the nominee with an opportunity given to the nominee to respond to same in an atmosphere that will guarantee the element of fair hearing.

    The confirmation hearing being contemplated is not one to be undertaken at a closed shop in whatever guise – whether in the name of a closed door session, executive session, committee session, or whatever.  Rather, it should be an open process that would allow participation by eligible senators and the public given the latitude to watch and assess proceedings.

    This position seems to have found support in leading authorities, including the pronouncements of the Supreme Court.

     

    Constitutional provisions

    The constitution is not silent on such matters. Section 56(1)-(3), (a), (b), (c) and (d) of the 1999 Constitution (as amended) provides as follows:

    “Except as otherwise provided by this Constitution, any question proposed for decision in the Senate or the House of Representatives shall be determined by the required majority of the members present and voting; and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case.

    “Except as otherwise provided by this Constitution, the required majority for the purpose of determining any question shall be a simple majority.”

    The Senate or the House of Representatives shall by its rules provide:

    • that a member of the House shall declare any direct pecuniary interest he may have in any matter coming before the House for deliberation;
    • that the House may by resolution decide whether or not such member may vote, or participate in its deliberations, on such matter;
    • the penalty, if any, which the House may impose for failure to declare any direct pecuniary interest such member may have; and
    • for such other matters pertaining to the foregoing as the House may think necessary.

    Supreme Court pronouncements

    In the case of A.G Bendel State v. A. G. Federation & 22 Ors (1981) 10 S. C. 1 at pg. 20, the Chief Justice of the Federation (CJN), the late Atanda Fatai-Williams, stated the correct legal position on proper procedure to be adopted by the legislature as follows:

    “In addition, I do not see how the courts could exercise jurisdiction over the exercise of legislative power by the National Assembly or by a State House of Assembly without being able to ascertain from the record of proceedings of the House concerned how, in what manner, and by what procedure, such legislative power has been exercised.”

    The Supreme Court interpreted similar provision in the case of A.G Bendel vs A. G. Federation (supra) where CJN Justice Fatayi-Williams on the question of prescribed procedure said:

    “The next question is this. Is the procedure followed in the passage of this Bill into law the one prescribed by the Constitution? The prescribed procedure will be found in Section 54, 55 and 58 of the 1979 Constitution…”

    The equivalent relevant provisions are Sections 56(1)-(3), (a), (b), (c) and (d) of the 1999 Constitution (as amended).

     Manner of exercise of legislative powers

    The Supreme Court had the opportunity of examining the manner of exercise of legislative powers in the case of Attorney-General of Bendel State vs. Attorney-General of the Federation & 22 Ors.(1982) 3 NCLR p. 1- 151 where the court stated the correct position of the law as follows: Fatayi-Williams, on page 40 of the judgment said:

    “In my view, a legislature which operates a federal written constitution in which the exercise of legislative power and its limits are clearly set out has no power to ignore the conditions of law-making that are imposed by that Constitution which itself regulates its power to make law.

    “I am, therefore, unable to accept the proposition that such National Assembly, once established, has some inherent power, derived from the mere fact of its establishment, to delegate or transfer to its Joint Finance Committee, established or appointed only for the purpose of resolving differences which have arisen between the two Houses of that National Assembly during the passage of a money-bill, its exclusive constitutional power to make a valid law…

    “The various provisions of the Constitution to which I have earlier referred clearly indicate a different Legislative process from that followed by the National Assembly in this case.  Since this Legislative process has not been followed in the passing of the Allocation of Revenue (Federation Account, etc.) Act, 1981, the Act, to my mind, is not a valid law.

    “It carries death wounds on its face.  This view, incidentally, accords with those of Lord  Pearce in the judgment of the Privy Council in Bribery Commissioner v Ranasinghe (1965) AC (PC) 172 at pages 193, 195 and 197; (also see South Ottawa v Perkins US Supreme Court Reports (24 Lawyers Edition) 154 at page 156).

    “The assent by the President cannot, in my view, prevent the court from coming to the conclusion that the Act is a nullity. (See Gallant v The King (1949) 2 DLR 425 – a Canadian case – as per Campbell, CJ at page 430)…By virtue of the provisions of Section 4(8) of the Constitution, the courts have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution.  If there is any such infraction, the courts will declare any Legislation passed pursuant to it unconstitutional and invalid.

    “I think it is sufficient to point out that our National Assembly is not a sovereign legislature in the strict sense. Its legislative powers are not only restricted by the constitution but the mode of exercising the powers are also specified therein. Any infringement of the provisions of the Constitution relating to these matters is subject to the jurisdiction of the courts by virtue of the provisions of Section 4(8) of the Constitution.”

    Mohammed Bello, JSC (as he then was) on page 46 of the judgment said:

    “I would endorse the general principle of constitutional law that one of the consequences of the separation of powers, which we adopted in our Constitution, is that the court would respect the independence of the legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the legislature or the mode of exercising its legislative powers.

    However, if the Constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the court is duty-bound to exercise  its jurisdiction to ensure that the legislature comply with the constitutional requirements.  Sections 52, 54, 55 and 58 of our Constitution clearly state how the National Assembly should conduct its internal affairs in the exercise of its legislative powers.

    That being the case, the court is duty-bound to exercise its jurisdiction under Section 4(8) of the Constitution to ensure that the National Assembly comply with the provisions of the Constitution to ensure ‘the exercise of legislative powers by the National Assembly…shall be subject to the jurisdiction of the courts…’ the objections to jurisdiction cannot therefore be sustained.

    A Justice of the Supreme Court (JSC), Mohammed Bello, further said on page 50 of the judgment:

    “One of the cardinal pillars of our system of government is that the legislative powers of the federation is vested in the National Assembly, consisting of a Senate and a House of Representatives; Section 4 of the Constitution.  Section 52, 54, 55 and 58 thereof prescribe the procedure the National Assembly should follow in the passing of a money bill into law. I agree that the bill in this case is a money bill.

    It is crystal clear from the provisions of the above mentioned Sections that a bill, whether money or non-money, must be passed in the same form by both the Senate and the House of Representatives, except where the provisions of the Constitution, relating to joint sitting of the two Houses apply, before the bill shall be presented to the President for assent. Where a money bill has been passed by the two Houses in different forms, Section 55(2) empowers the President of the Senate within the time stated therein to convene a meeting of the Joint Finance Committee of the National Assembly established pursuant to Section 58(3) ‘to examine the bill with a view to resolving the differences between the two Houses.

    There is no problem where the Committee fails to resolve such differences because Section 55(3) provides the bill shall be presented to the National Assembly sitting at a joint meeting, and if the bill is passed at such a joint meeting, it shall be presented to the President for assent.

    The problem arises where the Committee, as in the case in hand, appears to have resolved the differences between the two Houses. I consider the confusion in the name of the Committee that met and resolved the differences in this case to be a matter of mere nomenclature.

    The crucial questions are: what was the force and effect of such resolution? Was such resolution tantamount to the passing of the bill within the context of the Constitution and was it proper to send the bill to the President for assent?

    Alternatively, was such resolution a mere recommendation which must be reported to the two Houses for acceptance or rejection by either House? The Constitution is silent and makes no express provisions from which the answers to these questions may be found. The answers can only be inferred on the construction of the provisions of the Constitution, relating to the legislative powers of the National Assembly, including those provisions which prescribe the mode of exercising such powers.

    It appears that all the functionaries of the legislature and the executive thought that the resolution of the differences by the Committee was tantamount to the passing of the bill and accordingly the bill was presented to the President and he signified his assent.  Were they right?

    In parenthesis, it may be pertinent to point out that such problem relating to money bills could not have arisen in England, Australia and India because ‘money bills’ within the context of their respective Constitutions, must originate from the lower Houses.

    In England, the House of Lords has no power to amend money bills at all.  In Australia and India, the Senate and the Council of States respectively, also have no power to amend. But they may suggest amendments to money bills which the other Houses may accept or reject: See Section 1(1) of the Parliament Act 1911; Section 53 of the Australian Constitution Act; Section 109 of the Indian Constitution.  In Canada, the Constitution is silent as to the right, which the Senate assumed of the Senate to amend money bills: See Section 53 of the British North American Act, 1867.

    It is only in the United States (U.S.) that the Constitution expressly conferred on the Senate the power to propose amendments to money bills, which must originate from the House of Representatives, as on other bills: Article 1 Section 7(1) of the US Constitution.

    Although there is no constitutional provisions to that effect, it has been the convention of the American Congress that when bills, whether money or non-money, are passed in different forms by the two Houses, a joint conference of a committee is appointed by the two Houses to iron out the differences and the committee would report its decision to the Houses for acceptance or rejection by either House: see Adrian and Press: The American Political Process, p. 440

    With the above observations in mind, I entirely agree with the construction put by the Chief Justice on Section 4(1), 54, 55 and 58 of our constitution and with his conclusions that the Joint Finance Committee has no power to  decide whether a bill shall be passed into law; that whatever decision the Committee takes on a bill referred to it cannot be final and that until the two Houses, sitting either separately or jointly, pass the bill or the committee’s version of it, it is not a bill passed by the National Assembly.  I further agree that the Act in dispute was not passed in accordance with the legislative process laid down by the Constitution.  I declare it unconstitutional and void.

    I agree with all the declarations and orders made by the Chief Justice.

    It seems clear from the above pronouncements of the Supreme Court that the proper procedure to adopt in the confirmation of Magu is to take the issue to the floor of the senate at a plenary.

     Comparative jurisdiction

    We will draw analogy with the situation In the U.S. where all presidential appointments with senate confirmation must follow the appointment confirmation process. The nominee must pass several rounds of investigation and review, beginning with the submission of a personal financial disclosure report and a background check. This is followed by evaluation in a committee hearing. The nomination will then go to the floor of the Senate for confirmation.  Once the nomination is considered by the Senate, unlimited debate is allowed until 2/3 of the Senate votes to confirm, reject or take no action on the nomination.

     

     Urgency of Magu’s confirmation

    Clearly with the withdrawal of Adegboruwa’s suit and the open declaration by the applicant that Magu is eminently qualified for the job, the Senate is encouraged to initiate confirmation hearing for Magu to enable the war against corruption go on uninterruptedly.

  • Magu: Legal battle begins over confirmation

    Magu: Legal battle begins over confirmation

    Legal fireworks began yesterday over the re-nomination of Mr. Ibrahim Magu as Economic and Financial Crimes Commission (EFCC) chairman with two separate suits filed at the Federal High Court for and against his confirmation.

    The two suits may be consolidated and heard by a judge.

    In the first application before the court, a lawyer, Oluwatosin Ojaomo, urged the court to compel Senate President Bukola Saraki to ensure Magu’s immediate confirmation.

    He also said the EFCC Establishment Act does not make provision for the rejection of any nominee of the President for the office.

    Ojaomo said the security report relied upon by the Senate to reject Magu is ultra vires and irrelevant to his confirmation .

    He sought a declaratory order:

    • deeming that the 1st defendant has confirmed the appointment by the President of the Federal Republic of Nigeria of Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (Establishment) Act, 2004;
    • that the 1st defendant does not possess the statutory power to reject Magu’s appointment, according to the EFCC (Establishment) Act, 2004; and an order
    • activating the court’s statutory powers for the interpretation of the provisions of Section 2(1)(a)(i)(ii)(iii) and 2(3) of the EFCC Act, 2004, with respect to the appointment of the EFCC chairman and the subsequent confirmation of the appointment by the Senate, according to the dictates of the law. And for such other order or orders as this Honourable Court may deem fit to make in the circumstances.

    Ojaomo said: “That the nitty-gritty of this matter is that on or around the 14th day of July, 2016 the President of the Federal Republic of Nigeria acting through the Vice President of the Federal Republic of Nigeria wrote a letter to the Senate House of National Assembly of the Federal Republic of Nigeria requesting the Senate of the National Assembly to confirm the appointment of Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC).

    “That the President of the Federal Republic of Nigeria acted within the ambit of his statutory power relying on the provisions of Section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act 2004.

    “That the Senate refused/neglected to attend to the letter of appointment wherein the name of Ibrahim Magu was sent as the duly appointed Chairman of the Economic and Financial Crimes Commission for several months.

    “That the Senate of the National Assembly of the Federal Republic of Nigeria after about six months of keeping the appointment letter of Ibrahim Magu conducted a plenary session wherein they came out and issued a press statement through their spokesperson on the 15th day of December, 2016 that the statutory appointment of Ibrahim Magu by the President of the Federal Republic of Nigeria as the Chairman of the Economic and Financial Crimes Commission has been considered and rejected by the Senate of the National Assembly.

    “That the Senate claimed that the rationale behind the rejection of the statutory appointment of Ibrahim Magu was because there was an unfavorable security report received against him and by virtue of this reason the appointment of Ibrahim Magu is therefore rejected by the Senate of the National Assembly of the Federal Republic of Nigeria.

    “That the Senate acted ultra vires by rejecting an appointment validly made by the President to the office of the Chairman of the Economic and Financial Crimes Commission according to the provisions of Section 2 (1) (a) (i) (ii) (iii) and Section 2 (3) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.

    “That the Senate does not possess the powers to reject the appointment of the President to the office, according to the act creating the said commission.

    “That the only ground on which the Senate can reject a person appearing before it is when the person is nominated and recommended to the Senate for screening, vetting and subsequent confirmation like a ministerial nominee. Alas the role of the Senate in this instant case is to confirm the qualification of the appointee as sent by the president and where the Senate is of the view that they require additional information in accordance with the statutory requirement stipulated by the act with respect the qualification of the appointee, they can refer to the president for further clarification but not to reject a statutory appointment validly made by the President.

    “That the role of the Senate in the confirmation of the appointment of a Chairman validly appointed by, according to the Act that created the commission, is to ensure that the requirement stipulated in Section 2(1) (a) (i) (ii) (iii) of the EFCC Act are duly complied with by the President in making the appointment.

    “Where these requirements are fulfilled, the Senate is statute barred from rejecting the presidential appointee as no such provision is made for rejection of a presidential nominee for the office of the chairman of the EFCC in the said Act or any law.”

    In a separate suit, the Incorporated Trustees of Save Nigeria Group and the Incorporated Trustees of Kingdom Human Rights Foundation International have asked the court to declare Magu’s seat vacant because he was rejected by the Senate.

    They asked for an order to compel President Muhammadu Buhari to appoint a new nominee for the office.

    The defendants in the suit are the President; the Secretary to the Government of the Federation; Mr. David Babachir Lawal; the Magu; the Attorney-General of the Federation; and the Senate.

    The plaintiffs pleaded for an order prohibiting and restricting the 1st defendant (President Muhammadu Buhari) from re-nominating  Magu as the substantive chairman of the EFCC following the Senate’s rejection of his nomination at the votes and proceeding of December 15.

    They also urged the court to determine the following issues:

    “Whether or not the provisions of the Federal Civil Service are applicable to the EFCC; and whether under the Federal Civil Service Rules, a person appointed in acting capacity can act in such capacity for more than six months, in view of Rules 010101, 020603 and 020604 of the Federal Civil Service Rules 2008.

    “Whether or not the office of the chairman of the EFCC (the 4th defendant) is vacant; on the ground of the Senate’s rejection of the nomination and failure to confirm Magu (the 5th defendant), who has been acting in that capacity for more than six months.

    “Whether or not the Senate rejection of the 1st defendant’s nomination of Magu is a reasonable and lawful ground to warrant and compel the 1st defendant to appoint/nominate another person as the chairman  without any further delay.

    “Whether or not the four-year term of office provided for in section 3 (1) of the EFCC Act is only applicable to a substantive chairman of EFCC who is appointed to act in the capacity of chairman , pending the appointment and confirmation of a substantive Chairman.

    “Whether or not the appointment of Magu who has been acting in that capacity for more than six months is illegal, null and void on the ground of non-provisions and recognition of an Acting Chairman in the entire provisions of the EFCC Act.

  • Jonathan seeks confirmation of EFCC secretary, others

    Jonathan seeks confirmation of EFCC secretary, others

    President Goodluck Jonathan yesterday sent the names of Secretary and other members of the Economic and Financial Crimes Commission (EFCC) to the Senate for confirmation.

    A memo dated April 11, 2013 entitled: “Appointment of secretary and members of the EFCC” stated that Section 2(1)(a) of the EFCC (Establishment) Act, 2004 provides for the appointment of the Chairman and members of the Commission.”

    It said that in pursuant to the provision of Section 2(3) of the EFCC Act, 2004 the nominees were made.

    It named Micheal Ebong (South south); Mr. Uwasomba Udochukwu (Southeast), Mr. Emmanuel Ibitolu (Northcentral), Ismaila Mohammed Dokku (Northeast) as nominated members of the commission. Mr. Adesojo O. Olaoba-Efuntayo (Southwest) was named secretary.

    Jonathan also forwarded the names of Hajiya Fatima Kwaku and Olumuyiwa Akinboro to the Senate for confirmation for appointment as members of the Federal Judicial Service Commission.