IN any battle between the constitution and any other law, it is indisputable that the constitution has the upper hand. Part 1 of the 1999 Constitution makes this very clear in Section 1 (3). “If any other law is inconsistent with the provisions of this Constitution,” it says, “this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.” In the matter of the twice stalemated Ibrahim Magu confirmation as chairman of the Economic and Financial Crimes Commission, it is shocking that despite having thousands of lawyers and judges in the country, it has taken an awful long time to come to the rather simple and bland fact that the embattled acting anti-graft boss really does not need confirmation.
The public mind was fully adverted to this fact when Vice President Yemi Osinbajo, himself a law professor, recently reiterated the opinion of Femi Falana, activist lawyer and senior advocate, on the subject. Both legal experts referred everyone to Section 171 of the constitution which spells out unambiguously the president’s powers of appointment, and which of the appointments need senate confirmation. Subsection (d) in particular indicates clearly, without boring the public with a long list, which agencies do not need confirmation. A lawyer will need extraordinary inventiveness to exclude EFCC from a reading of that subsection.
However, the confusion, it seems, is that the EFCC Act of 2004 makes it obligatory for its chairman to be confirmed by the senate, perhaps because of the sensitiveness of the agency’s powers and work. Mr Magu’s predecessors were subjected to confirmation. Section 2 (3) of the Act stipulates 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 confirmation of the Senate.” There does not seem to be any ambiguity in this provision either, except that it conflicts with Section 171 of the constitution. Had Mr Magu’s appointment not been controversial, had he been screened and okayed at his first appearance before the senate, the false convention would have been sustained.
So, why, despite knowing what the constitution says, does the vice president still grumble that the name of Mr Magu would still be forwarded to the senate a third time? Is it because he is not sure of his facts, or he is simply anxious to ward off a misunderstanding with the senate? “I agree with Mr Falana that there was no need in the first place to have sent Mr Magu’s name to the senate,” said Prof Osinbajo. “But we did so and it was rejected by the senate; but I believe that it can be re-presented.” Why would the Buhari presidency want to waste everyone’s time by re-presenting Mr Magu’s name again? Does it lack the courage to do what it deems right? The constitution is clear on the matter, and it is doubtful whether even the senate will argue to the contrary.
Does this column think the EFCC chairman should be subject to senate confirmation? Absolutely, for, judging from the enormous powers domiciled in that office, not to say the likelihood of abuse, it is not out of place to want the senate to have a say in who becomes the EFCC chairman. The public should be wary of judging the matter from the point of view of the present senate’s shenanigans, especially their ethical challenges, their often amateurish interpretations of their powers, and their predilection for picking a fight at the drop of a hat. It is indeed obvious that in a matter of weeks, the senate will talk of amending the constitution to fall in line with the provisions of the EFCC Act concerning the appointment of the anti-graft body’s chairman. No one should deny the senate that right.
A Yola, Adamawa State-based lawyer, Bello Bakari, is reported to have gone to court to ask for a declaration that Mr Magu does not need confirmation. The move is frivolous and vexatious, a sheer waste of time. Has the senate come out to insist, in the light of Section 171 of the constitution, that Mr Magu needs confirmation, and that failing that, they would take steps against the Buhari presidency? The fact is that most Nigerians, including this column, were ignorant of the constitutional facts of the case. It is unlikely that even Mr Magu himself knew he stood on solid ground all along. If the president and the vice president knew, they did not say. They were too anxious to get the senate’s approval than to check the constitutional standing of their controversial appointee. Even in bringing the matter to light again, the vice president has seemed to hedge, apparently willing to fulfil all righteousness by returning the name to the senate so that the legislature would not feel slighted. Now that everyone knows the fact, the country should move on. It is clear that Mr Magu does not need confirmation; let him begin work in earnest.
Notwithstanding this, there is no doubt that the Buhari presidency mishandled the Magu confirmation case appallingly. That ineptitude is not about to stop. It is absolutely ridiculous for the government to insist and give the impression that only Mr Magu can do the EFCC job well. If the senate rejected him twice, and the presidency is anxious to avoid a conflict with the lawmaking body, why not look for a credible alternative, someone less given to histrionics, someone more articulate? Unlike the inappropriate examples Prof Osinbajo gave of the confirmation of two or three controversial Donald Trump nominees in the United States, Mr Magu is encountering his own road blocks in a senate controlled by the president’s political party. It is the president’s own people who do not want Mr Magu, not even the opposition per se.
Worse, though the senate is not fond of the constantly impolitic Mr Magu, whom they think will put many of them in jail, if not humiliate them by his irreverence, the president’s kitchen cabinet as well as more than half of the security services, particularly the Department of State Service (DSS), simply don’t give a hoot which sewer the acting anti-graft chairman is thrown. In its volatile report on Mr Magu, the DSS did not mince word about his unsuitability for the office. They still stand by their report, despite Prof Osinbajo’s expiatory remarks about how the president assessed the stand-off between the secret service and the EFCC boss. Given last week’s raid on the alleged safe house of the National Intelligence Agency (NIA) in Lagos, where about $43m was recovered, the division among the intelligence services seems primed to worsen. Both the president and the vice president, it is now obvious, will have to swim against the tide to stand by Mr Magu.
This column shows preference for Mr Magu to do the EFCC job, for he brings an uncommon and impressive zeal to the job. But neither this column nor anyone should harbour the illusion that only Mr Magu can do the job. In his second appearance before the senate, Mr Magu was not impressive. He was not as responsive and graspable to questions as the querulous and censorious senate hoped, and he was unduly tense and discomfited. Unable to marshal the facts required of him, and incapable of the logic that bowls enemies over, the mischievous senate was happy to reject him a second time, and to safely lie that the rejection had nothing to do with the unfavourable DSS report on the EFCC boss. The Buhari presidency has no reason to flaunt its divisions and untidiness in the face of Nigeria. If the president had been firm on the matter and had done what he should do from the beginning, Mr Magu would not be facing a herculean confirmation battle, the kind that has polarised the country, fouled the well of trust in the presidency itself, and brusquely shoved a very unflattering image of Nigeria in the face of the world.
By appearing a little conciliatory over Mr Magu’s confirmation, the vice president may be telling the senate that the Buhari presidency is not averse to reaching an accommodation with the lawmakers. Infuriated senators, ash on their faces, will however see through the humbug. They note that the president has been preternaturally quiet, preferring to snigger behind the door. They also know that they are dealing with a confused, divided and disconcerted presidency, against which if they hold off sufficiently they might yet triumph. They know, all things considered, that a few months to kick-starting the intense 2019 race, it is a question of time before the presidency becomes desperate and begins to relent.
Above all, the senators know that neither the president nor the vice president is really politically astute. One has the bearing, blood and tendons of lifelong soldiering, a ramrod military figure quite unused to the amenities of indirect speech, sarcasm and metaphors; in short an anti-politician. He can on his own hardly win two states in a row, let alone a whole region or country. And they know that the other, Prof Osinbajo, is a technocrat par excellence whose conscience is swaddled by so much ethical draperies as to possess little of the joyous kind of politics that sends both party apparatchiks and grassroots into rapturous frenzy. To be relevant in the months ahead, both soldier and technocrat would need the realpolitik most senators are famously familiar with and thrive on. It is this unhappy realisation that makes the president to sink deeper into his accustomed aloofness, and the vice president to waffle in the face of a bitter, pungent and vexatious senate.
If they don’t have the stomach to engage the senate in a long-drawn-out fight, why do they insist on Mr Magu? The DSS gave them a lifeline to avoid drowning in political conflict, and the senate offered them a safe parachute to avoid the cliffs. The wiser political choice would have been to scuttle Mr Magu’s ambition and find a good and competent replacement, selling the new man as a dark horse of immense gifts, probity and eloquence. By electing to perish with Mr Magu, and resting its convictions on constitutional anchors, the presidency is saying that it trusts the whimsical and sentimental affirmations of the public. It must now hope that the public support which it counts on to delineate and calibrate its political reactions has enough tensile strength to beat the senate’s swords into ploughshares. Otherwise, by 2018, not even 2019, the presidency, which has routinely placed itself above the constitution, could become so isolated and taunted that it would see no other way to avoid humiliation than to fall on that same metaphoric sword it has wielded gloatingly and carelessly.
