Nigerian Bar Association (NBA) Second Vice President Monday Ubani has urged the Federal Government to obey the judgement of a Federal High Court, Abuja which held that the Senate acted within the law when it rejected the nomination of Ibrahim Magu as the Economic and Financial Crimes Commission (EFCC) chairman.
Justice John Tsho, delivering judgment on a suit filed by a lawyer Oluwatosin Ajaomo, held that Magu’s appointment was incomplete without Senate confirmation.
He held that the Senate was empowered to confirm or reject any appointee to the office of the chairman of the EFCC by the president.
Ubani said unless the executive has secured a contrary judgement from the appellate courts, “it is not a good name for any arm of government to be known for disobeying court orders and judgements”.
He argued that for now, the position of the law is that the chairman of efcc must be confirmed by the Senate.
“The executive is advised to do the needful to avoid being branded as not respecting the rule of law and obeying the Judgement of the Court of the land,” he said.
According to him, “we must understand and appreciate the role of the judiciary in democracy. The most important role actually is to interpret the law where there is any cloud of misunderstanding surrounding the intention of the law makers involving two warring or contending parties.
“In the case under analysis, the executive and the legislature seem to have a bit of interpretation problem as to the confirmation of the position of the Chairman of EFCC by the Senate.
“While the Senate believes that the Chairman of EFCC should be confirmed by the Senate in accordance with the EFCC Act, the executive thinks otherwise citing a favourable part of the section of the 1999 constitution as amended that created a leeway for the executive to avoid seeking such confirmation of that position by the Senate.
“Such misunderstanding has created political logjam for both arms of government to the extent that other persons that ordinarily should have been confirmed by the Senate have been put in abeyance for some months now thereby creating political crisis for the government at the centre. Reason prevailed and the matter was submitted to the judiciary for adjudication which has held that the Senate should actually confirm the position of the Chairman of the security agency.
“The position, therefore, is that the law of the land with regards to confirmation of the chairman of EFCC is that the Senate must be involved in the confirmation of the position of the Chairman of that body as prescribed by the Act creating it notwithstanding the provisions of the constitution which was enacted earlier than the EFCC Act. It may well have been that the constitution never contemplated the provisions of the EFCC Act that makes such confirmation compulsory,” he stated.
Ubani however said that despite that Justice Tsho said the plaintiff has no locus to institute the suit, the court still treated all the questions that were addressed to it on its merit and ruled on all the questions that were addressed to it.
He noted the federal government’s position to the effect that there is a provision in the constitution where it was stated that the EFCC is not one of the agencies that the Senate would confirm its chairman. But experienced practitioners and many others were saying that the EFCC Act came after the enactment of the constitution.
He said: “If the EFCC Act makes provision that before the chairman of the EFCC must act, he must be confirmed by the Senate, it then means that is the intendment of that law.”
Ubani recalled that over time, “the first person that was the chairman of the EFCC, Nuhu Ribadu, was confirmed by the Senate. The second person that was appointed, Mrs Waziri, the woman was confirmed by the Senate. Ibrahim Larmorde who took over after her was also confirmed by the Senate.
“So, if all these people over the years have been confirmed by the Senate before they started acting as the chairman, why are we now saying that the constitution does not make provision for the confirmation of the EFCC chairman”, he asked.
He referred to a similar development in America where Obama appointed somebody in acting capacity beyond the time the law allowed.
According to him, the matter went to court and the court held that he cannot continue to keep somebody in office in acting capacity when the law says he must be confirmed by the legislative chamber.
“All this while, I have been arguing that the federal government, the executive can put Magu in office in acting capacity and why I have been saying so was because there has been no pronouncement from the court on this seemingly ambiguous situation that has arisen. It was ambiguous because the Senate is interpreting the law differently, the executive is interpreting the law differently.
“Now that the judiciary that has the constitutional role of interpreting the law, giving correct interpretation that our law provides and has given that interpretation as to the position of that law, so which other arm of government is there to look up to except they have gone on appeal and have that particular judgment reversed.
“The current situation now is that the court has recognised that an agency like the EFCC chairmanship that requires confirmation by the senate must be confirmed by the Senate. That judgement stands unless they go on appeal to reverse that judgment”, he stressed.
