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Senators, others face legal tussle over Magu

A Lagos businessman, Mr. Raji Rasheed Oyewumi, has filed a suit at the Federal High Court Abuja seeking the nullification of the screening of the Acting Chairman of the Economic and Financial Crimes Commission,  Mr. Ibrahim Magu by the Senate.

He also asked the court to declare that the President of the Senate, Dr. Bukola Saraki and 10 Senators, being investigated by EFCC, ought not to have participated in the screening of Magu.

He said due to conflict of interest, the court should disqualify Saraki and the 10’Senators from further participating in the screening of Magu.

He said the court  should declare the screening of Magu on the 15th day of December 2016 without first referring him to the appropriate committee of the Senate as illegal, null, void and of no effect whatsoever.

The defendants in the matter are Saraki, Senators Godswill Akpabio, Jonah Jang, Aliyu Wammako, Stella Oduah, Theodore Orji, Rabiu Kwankwaso, Ahmed Sani. Danjuma Goje, Joshua Dariye and Adamu Abdullahi.

Others are the Clerk to the National Assembly, the Senate, the Attorney-General of the Federation and the Acting EFCC chairman.

The plaintiff, through his counsel, Mr. Inibehe Effiong,  sought the following reliefs: “An order to set aside the screening the screening, votes, proceeding and resolutions of the Senate of the Federal Republic of Nigeria (the 13th Defendant/ Respondent) of Wednesday, 15th March, 2017 as they relate to the nomination or appointment of Mr. Ibrahim Mustapha Magu (the 15th Defendant/Respondent) for the position of Chairman of the Economic and Financial Crimes Commission (EFCC).

“A declaration that the 1st Defendant is disqualified by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Senate Standing Orders, 2015 (as amended) from presiding over or participating in the deliberation, screening and voting on the nomination of the 15th Defendant for the position of Chairman of the Economic and Financial Crimes Commission due to the apparent conflict of interest arising the 15th Defendant’s active role in his ongoing trial at the Code of Conduct Tribunal.

“ A declaration that the 2nd to the 11th Defendants are jointly and severally disqualified by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Senate Standing Orders, 2015 (as amended) from participating in the deliberation, screening and voting on the nomination of the 15th Defendant for the position of Chairman of the Economic and Financial Crimes Commission due to the apparent conflict of interest arising from their pending or ongoing cases of financial and economic crimes given that the 15th Defendant is coordinating and supervising the investigation into or prosecution for the said financial and economic crimes.

“A  declaration that the 1st to the 13th Defendants jointly and severally violated the Senate Standing Orders, 2015 (as amended) when they participated in the screening, deliberation and voting on the first or earlier nomination of the 15th Defendant in the 13th Defendant on the 15th day of December 2016 by not declaring their pecuniary interests in view of their pending or ongoing cases of financial and economic crimes given that the 15th Defendant is coordinating and supervising the investigation into or prosecution for the said financial and economic crimes involving the 2nd to 11th Defendants.

“A declaration that the first and earlier rejection of the nomination of the 15th Defendant for the position of Chairman of the Economic and Financial Crimes Commission by the 1st to the 13th Defendants on the 15th day of December 2016 without first referring the 15th Defendant to the appropriate committee of the 13th Defendant and at an executive or closed session instead of an open session is illegal, null, void and of no effect whatsoever.

“A declaration that the 15th Defendant is entitled to be accorded fair hearing by the 1st to the 13th Defendants during screening, deliberation and voting in the Senate of the Federal Republic of Nigeria on his nomination for the position of Chairman of the Economic and Financial Crimes Commission.

“An order of injunction restraining the 1st Defendant from presiding over or participating in the screening, deliberation and voting on the nomination of the 15th Defendant for the position of Chairman of the Economic and Financial Crimes Commission.

“An order of injunction restraining the 2nd to the 11th Defendants from participating in the screening, deliberation and voting on the nomination of the 15th Defendant for the position of Chairman of the Economic and Financial Crimes Commission.”

April 3, 2017
Magu: Senate out to frustrate Buhari, say activists

Senate’s rejection of Ibrahim Magu as the substantive Chairman of the Economic and Financial Crimes Commission (EFCC), has been described as plot to frustrate President Muhamnadu Buhari’s government.

Network of Civil Society Organisations of Nigeria, which stated this yesterday, condemned the action of the upper chamber, describing it as another item in their kitty to further slow down the system.

The group, in a statement by its National Coordinator, Comrade Kalu Victor and its National Secretary, Mukhtar M. Joda, condemned in totality the desire of the Nigeria Senate to engage the Executive arm of government in an untidy sabotage and blackmail at this time when the 2017 Appropriation Bill presented to them by President Buhari is still suffering grave set back to earn their approval.

The group said: “The refusal of the Nigeria Senate to confirm Mr. Magu as the substantive Chairman of the Economic and Financial Crimes Commission (EFCC) is condemnable as it is, yet, another item in their nefarious kitty to further slow down the system and create frustrations for the Muhammadu Buhari led government.”

April 3, 2017
Magu’s fate: Buhari seeks legal advice

•Senate awaits communication from Osinbajo’s team

President Muhammadu Buhari has opted to seek legal opinions in deciding what to make of Mr. Ibrahim Magu, following the latest refusal of the Senate to confirm him as substantive chairman of the Economic and Financial Crimes Commission (EFCC).

The legal consultations will form an integral part of the planned peace talks between government’s mediation team headed by Vice President Yemi Osinbajo and National Assembly leaders.

The Federal Executive Council constituted the team recently to interface with the NASS leadership with a view to resolving the differences between the two arms.

The Nation gathered yesterday that the Osinbajo-led team was yet to contact the National Assembly leaders.

Authoritative sources said yesterday that Buhari had called for advice on the import of Section 171 of 1999 Constitution which is the bone of contention on the fate of Magu.

The Section says: (1) “Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall rest in the President.

(2) The offices to which this section applies are namely.

(a) Secretary to the Government of the Federation.

(b) Head of the Civil Service of the Federation.

(c) Ambassador, High Commissioner or other principal Representative of Nigeria abroad.

(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and

(e) any office on the personal staff of the President.

(3) An appointment to the office of the Head of Civil Service of the Federation shall not be made except from among the Permanent Secretaries or equivalent rank in the Civil Service of the Federation or of a State.

(4) An appointment to the office of Ambassador, High Commissioner, or other Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate.

(5) In exercising his powers of appointment under this section, the President shall have regard to the federal character of Nigeria and the need to promote national unity.

(6) Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office;

“Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the President ceases to hold office.”

Section 11 of the Interpretation Act says:   (1)   “Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes-

(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;

(b) power to remove or suspend him;

(c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint,-

(i)   to reappoint or reinstate him,

(ii)   to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.

(2)   ” A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.”

Prof. Itse Sagay’s Presidential Advisory Committee Against Corruption (PACAC) believes that by virtue of Section 171, Magu can continue to act as Acting EFCC chairman.

The Department of State Security Service, some government officials and the Senate think otherwise.

The Senate on Wednesday stopped the consideration of the 27 Resident Electoral Commissioners who were nominated by Buhari to protest Buhari’s refusal to sack Magu after it rejected him for a second time.

A top level source said although the President has stuck with Magu for now, those opposed to the EFCC acting chairman are drawing attention to Section 11 of the Interpretation Act in the constitution.

The source said: “The President is being painstaking in taking a decision on Magu.

“He has sought legal advice on the contentious Section 171 of the 1999 Constitution and Section 11 of the Interpretation Act.

“The legal advice might either strengthen his position on Magu or determine what action to take. It will also assist him to engage the National Assembly leadership on Magu’s fate.

“Buhari is aware of argument for and against the retention of Magu but he does not go by the spur of the moment because of posterity. He is aware of Magu’s impeccable contributions to anti-graft war. And on a personal note, he is with Magu.

“He runs a peculiar presidency based on adherence to the rule of law and not Executive fiat as the case was in the past.”

Another source said: “the President’s ultimate decision on Magu will have to take cognizance of the EFCC Establishment (2004) Act and the rejection of the officer by the Senate for the second time.

“Apart from the law, some government officials prefer a political solution to the controversy on Magu. We are hopeful that Osinbajo’s mediation team will be able to resolve this issue amicably.

“There is a dilemma before the President. He favours Magu for the job and he does not pretend about it. But he has to manage the anger of the Senate too.

“The battle over Magu is now in the realm of legal technicality, especially his continued stay in office in Acting capacity. This is why the President needs sound legal advice, not jaundiced type.”

The questions to be resolved are:

* Can the President re-nominate Magu for the third time?

* What becomes of Magu’s status in the light of his rejection for the EFCC job for the second time by the Senate?

* Should Magu remain in office in Acting capacity as EFCC chairman until Buhari takes a decision or as long as it takes Buhari to decide his fate?

*If Buhari does not re-nominate Magu for a third time, can he remain in Acting EFCC chairman till the end of Buhari’s tenure in 2019 in the light of the provision of Section 171 of the 1999 Constitution?

A principal officer in the National Assembly said: “We are awaiting communication from the Vice President before we constitute our team which will meet with the mediation committee from the Executive.

“Certainly, we are bound to disagree on issues in line with the principle of separation of powers but we are also expected to reach consensus for the betterment of the society at large.

“We have issues with the interpretation if Section 171 of the 1999 Constitution.”

Shortly after Magu’s last rejection, the Executive Secretary of PACAC, Prof. Bolaji Owasanoye, had told our correspondent that Magu can continue to serve in acting capacity.

He said: “We believe that there is nothing inhibiting him from being in office as the Acting EFCC chairman. We are of the opinion that he should remain in office.

“If you look at Section 171 of the 1999 Constitution, the President is empowered to retain him as long as he wants in acting capacity. As long as the President remains in office, Magu can continue to act as EFCC chairman.”

Responding to a question, Owasanoye added: “If there is something new, we would have modified our position but the Senate acted on old report without considering the President’s points in the re-nomination letter.”

April 2, 2017
Magu, DSS and Senate
The fascinating story of the Senate confirmation hearing and decision on the nomination of Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC) has a great potential for box office success as a movie. What with the complex plot and intriguing characters! I trust that our talented screenwriters are already working their hearts out to give the nation a thriller in no distant future.

There are three levels of interconnected plots: the executive level, the legislative level, and the subject common to both, the man Magu.

Ibrahim Magu is the main character. But who is he and why is he in so much trouble? Magu served under former EFCC chairman Nuhu Ribadu. When Ribadu was relieved of his position by the late President Umaru Musa Yar’Adua, Magu also lost his job. He moved on to other matters of importance, including making himself available as the presidential candidate of the ACN in 2011.

Mrs. Farida Waziri took over and she was also relieved of her post as Chair. We have not heard much of her since. In her place, President Goodluck Jonathan appointed Mr. Lamorde EFCC Chairman and he brought Magu back to the commission. Lamorde finished his term and Magu was appointed as Acting Chair pending Senate confirmation. The Red Chamber has declined to confirm him on two occasions.

Thus far, there is almost nothing interesting in the story. A new president has the right to hire and fire. Both Yar’Adua and Jonathan exercised their rights. No one has a right to complain of being fired. On its part, Senate has the constitutional responsibility of advice and consent or withhold consent. It is not a big deal.

But in the case of the presidential nomination of Magu, there is a big deal because President Buhari who nominated Magu twice is the head of the executive branch of which the DSS is a part. What is the involvement of DSS and why does it raise a red flag of executive dysfunction?

DSS is the Department of State Security Services, the agency with the responsibility for investigating and advising the president on matters of state security. This includes the screening of executive branch appointees like ministers, special advisers, heads of public agencies and, in this case, the EFCC chairman. The job of DSS is to advise a president on the suitability of a potential nominee.

Normally, then, DSS should provide a president with its findings in a timely manner even before the nominee is presented to Senate for confirmation. The reason this is important is that a president does not want to be embarrassed should a potential appointee turn out to have a criminal background or a questionable integrity. DSS is the agency that helps the president to do his homework right. It stands to reason, then, to expect that once a president receives an unfavourable report about a potential nominee, he cannot proceed with that nomination, unless he is prepared to dare Senate or make a deal with that body. The projected persona of this president does not lend itself to the latter conjecture.

But DSS issued a stinging report on Acting Chairman Magu. In its 14-paragraph report, the agency raised serious issues on the professional integrity of the nominee. This is where it starts to get interesting and weird.

According to Magu, DSS issued two reports on him on the same day. One was addressed to the Clerk of the National Assembly. The second was addressed to the Special Assistant to the President on National Assembly Matters.

One DSS report concluded with an advice against the confirmation of Magu. The other DSS report concluded with an advice in favour of the confirmation of Magu. It is not clear if it is only the conclusions of the two reports that are different and the contents the same. There is room for speculation here. I conjecture that the report which supported confirmation of Magu was sent to the Assistant to the President on National Assembly Matters (Senate), while the report which advised against his confirmation was sent to the Clerk of the National Assembly. How else might it be?

If I am correct, it would explain why the President went ahead with the nomination of Magu. It makes sense that the Special Assistant to the President would have attached the positive report to the nomination. What we know for sure is that Senate received a negative report through its Clerk. As Magu ruefully intoned, “the two reports emanating from the same agency raise questions of sincerity and motive.”

Without taking side in the matter of MAGU vs. DSS, two reports with different conclusions sent to two different bodies certainly raise questions of sincerity and motive. This would reasonably recommend discarding those reports and starting all over with a new agency or a new committee in DSS to objectively do a background screening of the nominee. It has been one procedural fiasco.

Now, the substance of the allegations against Magu is weighty, touching on issues of corruption and questionable integrity. He was accused of keeping agency files in his house after he was sacked and it took a search of his residence on the order of the new chairman to retrieve the files. He was also accused of hobnobbing with corrupt individuals. For the man tipped to head the pre-eminent anti-corruption agency of the nation, the indictment is the moral equivalent of a death sentence.

But can there be conviction and punishment without a hearing? DSS is an agency tasked with the protection of the security of the state. Can it do this without corroborating and confirming allegations against security risks? Magu has complained that he was not contacted by DSS for his defence of the allegations. This is another procedural failure!

When the Attorney-General finally gave Magu the opportunity to defend himself within 48 hours, he appeared to discharge himself creditably in his point-by-point response to DSS allegations against him. If DSS had confronted Magu with its findings on each of the allegations, it could have received the same detailed response and that would have placed the agency in a better position regarding its report to the presidency and the Senate. It would also have saved it the embarrassment which an obviously biased approach has caused it.

There is a final point. At the core of DSS and Magu face-off is the crucial matter of the integrity of the executive branch. Integrity here does not simply mean character. It means the integration and smooth functioning of all the parts. We talk about the integrity of a system because without it, dysfunction is inevitable. With dysfunction, total collapse is imminent.

DSS is a part of the executive branch, the Presidency, to be precise. With a damning report of a presidential nominee going direct to Senate, blindsiding the President who is the head of the executive, it is simply amazing.

The third plot in this salacious movie is the Senate. Of course, no one really expects the Red Chamber to be kind to the Acting Chair of EFCC under whose leadership many of the distinguished senators or their political associates have been grilled and prosecuted for corruption-related matters. Certainly, our senators can be fair-minded and in this case, I have no good reason to think that they are not. In fact, under the circumstances, I do not know if they could have done otherwise.

They worked with the findings of DSS on the nominee. Of course, Magu’s response to the Attorney-General is not only in the public domain; the President himself supported his re-nomination of Magu with the justification that the nominee has been cleared of corruption charges by the Attorney-General.

Why did the Senate not believe the President? Apparently because they consider him an interested party who wants his nominee to be confirmed. A more germane question is “why did the Attorney-General and the DSS not reconcile their positions based on Magu’s response to the Attorney- General?

Hopefully, the executive branch is an effectively functioning system and is mindful of its grave susceptibility to a debilitating dysfunction.
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March 31, 2017
Senate flexes muscles with Presidency over SGF, Magu

‘No confirmation of RECs without Lawal’s, Ag. EFCC chair’s sack’

SENATORS bared their fangs against the Presidency yesterday. They suspended the screening and confirmation of 27 Resident Electoral Commissioners (REC) nominees.

The Senate declared its readiness to defend its integrity against attacks by some persons it did not name, signifying a possible showdown between the two arms of government.

The upper chamber unanimously resolved to suspend the consideration and confirmation of RECs nominated by President Buhari to protest what it called disregard for resolutions by the Presidency.

Announcing the resolution after about two hours meeting behind closed doors, Senate President Bukola Saraki said the upper chamber would not succumb to blackmail and intimidation in the discharge of its constitutional duties.

Saraki did not disclose the identity of the “external forces” he said were attacking the Senate as an institution.

His words: “The Senate in a closed session discussed the various attacks on the National Assembly, especially on the Senate, for performing its constitutional duties.

“The Senate resolved to defend the integrity of the Senate against such attacks and will not be intimidated from carrying out our constitutional duties at all times.”

It was learnt that the Red Chamber’s position may not be unconnected to its face-off with some members of the executive, including the Comptroller-General of the Nigerian Customs Service (NCS), Col. Hameed Ali (retd.), and the Secretary to the Government of the Federation (SGF), Mr. David Babachir Lawal.

The Senate rejected for the second time the nomination of Mr. Ibrahim Magu for Economic and Financial Crimes Commission (EFCC) Chairman on March 15.

A National Assembly source disclosed yesterday: “The Senate is not happy that despite its rejection of Magu, the President still keeps him in office in an acting capacity.”

The resolution to suspend the consideration of the RECs’ nomination followed a motion by Senator Peter Nwaoboshi.

But for Nwaoboshi’s motion, the names of the RECs would have been read the second time and referred to the Senate Committee on Independent National Eelectoral Commission (INEC).

Nwaoboshi prayed the Senate to suspend action on the nominees for two weeks to allow the Senate President convey the feelings of the Senate to President Buhari over alleged disregard of its resolutions.

The senator said: “Mr. President, taking a leave from America which started this presidential election. Recently the National Security Adviser was sent to the Senate of America and because of his belief in Russia he was disqualified.

“What am I saying? Issues like this have to transcend the issue of political parties or where you have lived for the interest of Nigerians and also to protect our constitution and protect our democracy.

“Recently in this Senate, we have dealt with the issue of confirmation and where are we today? The chairman of the Presidential Advisory Committee on Anti-corruption (PACAC), Prof. Itse Sagay went to the press and said that the Senate merely confirms.

“This is not expected of somebody who had lectured Constitutional Law in the university, a professor of Law, a Senior Advocate of Nigeria (SAN) and, of course, a chairman of such a big body to say that the legislature merely confirms, that the legislature has no power.

“Here are we again today, now being given a list to confirm and we merely confirm. Look at the list here, we have eight of them here out of 27, eight of them are for reappointment, which means they are acting already, they are already working and they are still in position.

“Prof. Sagay will cite again Section 171, Subsection (D) of the Constitution of the Federal Republic of Nigeria that even if we don’t confirm them, he will say ‘continue to work’.

“You can imagine this kind of advice that these kinds of persons are giving to Mr. President. They are telling Mr. President to disregard and disrespect the institution, the legislature.

“Mr. President, lets us not take such a precedence. We cannot destroy our democracy because certain persons, certain individuals feel that it is only their belief or what they want is what will happen in this country.

“This country does not belong to them; this country belongs to the Nigerian people; the Nigerian people have elected us; they have given us the power to look into those names sent to us for confirmation and to look into their credentials.

“But when you denigrate such an institution that have the power to confirm and use the word merely, we could not ignore it coming from somebody of that status.

“My position on this matter is that since our confirmation is ‘merely’, let us suspend it until we know whether we have the power as given to us by the Constitution to look into confirmation matters or any other status.”

Senator Matthew Urhoghide (Edo South) said: “In addition to what Nwaoboshi said, which is the constitutional requirement that this Senate has to confirm nominations sent by the executive arm of government, the act establishing these agencies of government have specified clearly that these officers of these agencies whose appointments will be made by Mr. President have to be confirmed by the Senate.

”We are only performing our statutory role and, if by chance, Mr. President sends a name to the Senate for confirmation and they are not confirmed, what happens is that the President is at liberty to send another name but it must be that the Senate too must be properly informed of what has happened to the confirmation either the one that has been upheld or the one that has been turned down by the senate. We deserve the right to know.

“We cannot keep confirming names or turning down names of nominees of Mr. President only for them to be put in basket, particularly the one that happened recently; we don’t know what has happened.

“These persons cannot keep acting even when we have turned them down because as it is now they are acting and their names have been sent in for confirmation and we don’t know what has happened in the case of the EFCC.

“Specifically speaking, is he acting today? If the President knew that he was not going to honour our refusal or rejection of his nominee, they shouldn’t have sent him in the first place, which would have meant an outright violation of the law establishing EFCC and of course, the constitution of the Federal Republic of Nigeria, 1999 as amended.”

But Senator Adamu Aliero (Kebbi Central) countered the two senators’ position.

Aliero said: “I rise to oppose what my two colleagues have just said for the reason that there is already an impression that is created, particularly by the media that the INEC is not ready for the conduct of 2019 election. The 2019 election is very crucial to us and the preparation and the conduct of the 2019 election is the submission of resident electoral commissioners to the senate for screening and approval.

“Without that, INEC will never be ready for the 2019 elections, even though what they said is true. I want to ask that we consider the screening of this list and if there is any observation on any nominee, it should be done at the screening stage.

“I will want to respectfully say that some of the nominees that are set to be on reappointment they have already left the office and they have served their term for four years.”

Deputy Whip Francis Alimekhana (Edo North), was more vocal in his support that the confirmation of the RECs should be kept in view.

He said: “I beg to differ from the suggestion of my colleague, Senator Aliero. It is better to do something and do it well. All these nominees reappointed, new appointment, what if we refuse one of them, what will happen? That is the question that the distinguished senators are asking the executive. There is no need to disapprove one and he (President) goes back to say you can continue to act.

“The EFCC chairman that we disqualified in this hall is he acting? Among the report that are agog in the papers, he is behind it. Magu is terrorising us because we disqualified him and we cannot hide it. We disqualified Magu and he is terrorising our people because we disqualified him and he is still acting and they are still bringing in nominees for us to confirm. If they know they can do it alone, let them do it.”

Deputy Senate Leader Bala Ibn Na’Allah urged his colleagues to be cautious.

Na’Allah said: “This is a defining moment in our journey to nationhood. Having had the privilege of being a leader in this Senate, I have always prided myself with the fact that this Senate is imbued with men of intelligence, courage and character, with determination to play a fundamental role in our journey towards nationhood.

“I have always said that it consists of former governors, former ministers, former captains of industries. What that means is that at each point we are being called upon to decide on an issue that affects this nation.

“We must show that we have superiority of thinking and we have more commitment than those anti-democratic forces that survive outside the chambers of the National Assembly. I think this is one situation where that call is relevant and important.

”I share the sentiments of my colleagues on this issue. I am in great difficulty to disagree with more convincing reasons as to why I think the Senate will thread cautiously on the request by my colleagues for us to stand down this. I think this matter is going to be referred to the committee, we still have enough time.”

Deputy Senate President Ike Ekweremadu noted that some of the positions of the RECs had been vacant for more than one year.

He said that any delay should not be blamed on the Senate but on the Executive that failed to submit the nominees on time.

Ekweremadu said Saraki should be allowed to convey Senators’ feelings to President Buhari on his appointments, noting that it was necessary to do so.

He proposed that the consideration of the nominees should be stood down for one week.

Before a vote could be taken on Ekweremadu’s motion, Nwaoboshi moved that the matter should be suspended for two weeks.

Senator Clifford Odia (Edo Central) seconded.

When Saraki put the resolution to vote, it was unanimously endorsed.

March 29, 2017
Anti-corruption war: Things are changing under Magu, says Oshiomhole

A former governor of Edo State, Adams Oshiomhole, yesterday said things are changing in the war against graft under the leadership of the Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu.

He said Magu’s job is the most difficult and challenging job in the country but should be supported.

He said contrary to insinuations, Magu was not selective in the way he is waging war against corruption.

He also said there was nothing wrong with the media trial of corrupt suspects in the country.

Oshiomhole , who spoke at the 1st National Anti-Corruption Stakeholder’s Summit at the EFCC Academy in Karu, Abuja, also backed the Nigeria Customs Service on the enforcement of payment of duties on imported goods.

The theme of the workshop was ‘Building National Anti-Corruption Consensus in a Multi-Agency’.

He said: “From what I have seen sir, you have the most difficult and challenging job in this country today; more challenging than the job of a governor, the job of a President, the job of a Senate President or any other person because those ones are clearly defined and the values are there but this one is really problematic.

“In the past, we were made to believe that you could not probe the armed forces because of security reasons because they could overthrow so army accounts were never touched.

“But we are beginning to see changes. Today, even former service chiefs are being made to account for the money that was meant for insurgency was diverted and kept in pit latrines.”

Oshiomhole insisted that there was nothing wrong with media trial of suspects.

He said: “I can see both people in opposition and government being made to give account. Something is changing but I see people who say corruption should not be fought in this manner. They say there is too much newspaper trial.

“There is a purpose for the media such that as you are trying to hide, somebody’s business is to expose because if it is not exposed, it becomes a matter for boardroom conversation and rumours for the rest of society. I

“I am convinced sir that under your leadership, things are changing. We just need to see how to sustain that and as you can see, there is no particular segment that can be completely said to be insulated.”

Regarding the enforcement on payment of duties, Oshiomhole said as long as there is a law in place that duty should be paid, the Service must go ahead with the enforcement.

He added: “When I was governor, I went to the Villa to visit a former President and many governors were there. And I said look at us, we have all made laws about contrabands and somehow all of us governors and Presidents and Vice-Presidents and ministers sitting here are wearing contraband.

“And I said to the President, if we cannot enforce a law, don’t make it. If we must make the law, it must be enforced because somehow we have been able to turn our country into a duty-free country.”

In spite of the fact that N70million has been frozen in his account, a human rights lawyer, Mr. Mike Ozekhome (SAN), described Magu as a “great man”.

He commended the EFCC for inviting him to the summit despite his disagreement with the anti-graft agency on the investigation of Governor Ayodele Fayose of Ekiti State.

The senior advocate, who had last week, challenged Magu’s legitimacy as the acting Chairman of the EFCC following his rejection by the Senate, said he had nothing against Magu as he had known the EFCC boss since 1997.

He said: “When I received the invitation to come for this summit, I was quite intrigued. I said to myself that Magu’s EFCC which had just seized my money from a court ordered unfrozen account is involving me. I said this man has a very large heart and I must attend it.

“Let me make this point clear, I don’t discuss individuals, I discuss institutions; that is why I believe that our institutions should be strengthened and not individuals. I have known Magu and Lamorde since 1997/1998/1999 during the failed bank tribunals and these are great men.

“These are great men with integrity. So, when we disagree, it is simply on how to move the nation forward. It has nothing to do with individuals or personalities. I still believe that he is a great man and a man of integrity.”

He, however, questioned the methods being employed by the commission regarding the fight against corruption.

Ozekhome joked that he would continue to defeat the EFCC in court because the problem the commission had was its shoddy method of investigation and not the judiciary.

He disagreed with Oshiomhole regarding the effectiveness of ‘media trials’.

Ozekhome said media trial was flawed as it had a way of presenting a person as already guilty even before being taken to court.

He also accused the commission of being selective in its fight against corruption and dared the EFCC to arrest just one of Buhari’s men to convince Nigerians that it was not being selective.

The Chairman, Senate Committee on Anti-Corruption and Financial Crimes, Senator Chukwuka Utazi, said there was a need for the EFCC to respect the rule of law while carrying out investigations.

Utazi said it was wrong of the EFCC to detain suspects for long periods with the aim of gathering evidence, adding that media trial was prejudicial and must be stopped.

He added that there was a need for the commission to inform the legislative of its activities as regards recovery of funds and seizure of assets as this would promote transparency.”

March 28, 2017
Magu: Civil Society to occupy National Assembly

Some Civil Society Organisations (CSOs) have threatened to occupy the National Assembly next week, accusing the lawmakers of frustrating the anti-corruption efforts of the present administration.

Addressing a rally in Abuja attended by the organisations and the President of the National Association of Nigerian Students (NANTS), Retson Thedeke who spoke on behalf of others accused the National Assembly of reversing the gains of the Change Agenda of President Buhari.

Thedeke demanded that the appointment of the Economic and Financial Crime Commission, (EFCC), chairman, Ibrahim Magu, three nominees for the National Communication Commission, and all those whose appointments were rejected on: “frivolous unsubstantiated allegations be confirmed by the Senate.”

“Corruption is at the root of the many Nigeria Problems. And while the President is dedicated to fighting for Nigeria, political insanity exemplified by the selfishness and greed of the leadership of the National Assembly has become major clog in the wheel of progress not just of the government but also for Nigerians.

“Instead of keying into the anti-corruption war of the President, the leadership of National Assembly is bent on scuttling it. This is not surprising to Nigerians as there are high profile corruption cases against members especially the Senators presently in various courts across the country,” Tedheke said.

He also urged Nigerians to mobilise themselves and demand real change from those he said should ordinarily be the closest to the people.

He lamented that anti-corruption bills sent to the lawmakers to facilitate prosecution of corruption and bring corrupt person to justice have been abandoned by the National Assembly.

He said all known persons that spoke against the leadership of National Assembly’s alleged corruption and appointed by the President for national assignments requiring their approvals were always rejected.

He therefore urged lawmakers with high profile corruption cases in courts to relinquish their positions in the National Assembly due to integrity challenges and to also pass all anti-corruption bills sent to them by Mr. President.

March 28, 2017
EFCC chair: Buhari sticks with Magu
•President may overrule DSS as agency’s memo to AGF leaks •Anti-Magu Senators plot to Ndume’s suspension

There were indications yesterday that President Muhammadu Buhari will insist on Mr. Ibrahim Magu becoming the substantive chairman of the Economic and Financial Crimes Commission (EFCC) after the Senate has twice turned down his confirmation.

The President appears set to overrule the Department of State Services (DSS) whose report had said that Magu was not fit for the seat.

The President, it was learnt, will soon make his position on the embattled acting EFCC boss known.

A Presidency source who spoke with our correspondent in confidence yesterday said the President has a soft spot for Magu.

The source, an insider in power politics in the Presidency, said: “Personally, the President prefers Magu and he is standing by him. As at this week, the position of the President has not changed.

“There is no doubt that the President’s advisers have recommended the retention of Magu and he is likely to heed their advice.

“As I am talking to you, there is no fresh security report or any updated information which can make Buhari to turn against Magu. So, he is likely to stand by his letter to the Senate.

“At personal level, Buhari has confided in his key aides that he wants Magu in charge of EFCC.”

Responding to a question, the Presidency source said “the President will soon make his official position known on this matter. He has received a letter from the Senate, and he is studying why Magu was rejected by the chamber.”

Another source said the President might “overrule the DSS, but he will address the crisis of confidence among his strategic aides.”

At press time, it was learnt that the DSS was adamant in its opposition to Magu.

Although a memo on Magu from the DSS to the Attorney-General of the Federation, Mr. Abubakar Malami (SAN) leaked to the press yesterday, there were indications that it was part of the plot to stop Buhari from re-nominating the Acting EFCC chair.

In the memo, which Magu had responded to, the DSS attached 12 documents against Magu.

The memo, signed by Folashade Bello for the DG of DSS, said in part: “ I am directed to forward the attached documents in respect of the report earlier dispatched by this Service to the Presidency on the Acting Chairman of the Economic and Financial Crimes Commission (EFCC) Ibrahim MAGU.

“They are marked annexures A to L and are highlighted as follows:
- Annexure ‘A’ – This is a copy of minutes of the 20th Plenary Meeting of the Police Service Commission on 20th December, 2010, chaired by Mr. Parry B. O. OSAYANDE (DIG/Rtd) who was then Chairman of the Commission. The minutes indicate that MAGU was indicted after a disciplinary process and awarded Severe Reprimand for “Action prejudicial to state security, Withholding of EFFC files) Sabotage, Unauthorised removal of EFCC files and Acts unbecoming of a Police Officer.” It is worthy to note here that Severe Reprimand is the second highest punishment to be given to an erring officer, other than compulsory retirement or dismissal from Service.
- Annexure ‘B’- This is a copy of the confessional statement of Air Commodore Mohammmed UMAR (Rtd), a suspect hitherto detained and currently being prosecuted by the Service. The statement affirms his ownership of Valcour S.A Nigeria Limited, a company awarded the contract of securing and furnishing an official residence for Ibrahim MAGU by the FCTA. Investigation revealed that this was facilitated after MAGU was earlier shown the residence by one Uche ALEKA, a close business associate of UMAR, who was introduced to MAGU by the former.
- Annexure ‘C’- This is a forged Memo which supposedly originated from the office of the Vice President and addressed to Mr. President. This was recovered from the private residence of UMAR during a search operation by this Service. The document is a request for approval to commence further investigation into financial activities of Honourable Minister of State for Petroleum Resources) Ibe KACHIKWU. Also attached to the Memo are two (2) genuine investigation reports .by EFCC on the Honourable Minister, dated 24th March, 2016 & 13th April, 2016 and duly signed by MAGU. One of the two (2) attachments indicates that the original investigation report earlier was purportedly received in the VP’s office by one Folabo KAY.
- Annexure ‘D’- This is a letter from the Office of the Vice President affirming that Annexure “C” is a forged document.
- Annexure ‘E’- This is a copy of Progress report with reference number SH/ COS/ 24/ A/7277 dated 25th May) 2016 on NNPC/ NLG Brass Investment Accounts in Nigerian Commercial Banks from Chief of Staff to Mr. President, Abba KYARI to the Acting EFCC Chairman. The letter is an official/classified document of’ the EFCC which was duly received by the Commission as indicated by the stamp on the document. However, it was recovered at UMAR’s residence.
- Annexure “F’ – These are photocopies of Managers’ cheques of First Bank PLC and
Zenith Bank PLC) issued in favour of EFCC Recovery Funds Account on 13/05/2016 and 16/05/2016,n respectively. These are all sensitive official documents of the EFCC found in UMAR’s residence during the search.
- Annexure ‘G’- A classified letter from the Office of the National Security Adviser (ONSA) to the EFCC Chairman titled Re: Request to Freeze Accounts Messers Bebey: Merchant Ltd and 20 others, dated 7th March, 2016. This document was also duly received by EFCC but found in Commodore UMAR’s house during the search.
- Annexure ‘H’- A document which emanated from Nigerian National Petroleum Corporation (NNPC) and addressed to the EFCC Chairman on 6th May, 2016 with the subject, Re: Stop Debit Order on all NNPC Accounts and Subsidiaries- A case for Joint Venture & NNPC Pension Funds Accounts. The document was recovered at UMAR’s residence.
- Annexure ‘I’- NNPC Letter GED/ F&A/08.26 dated 5th May, 2016 addressed to the EFCC Chairman and titled Re: Stop Debit Order on all NNPC Accounts and Subsidiaries. This was also discovered during the search of
UMAR’s residence.
- Annexure ‘J’- This is a copy of NNPC correspondence with reference number GED/F&A/08.26 dated May 5th, 2016 and titled Re: Stop Debit Order on all NNPC Accounts and Subsidiaries- Transfer of FCT Balances to NNPC’s TSA Accounts, addressed to the EFCC Chairman. The document was found in UMAR’s residence.
- xi. Annexure “‘K’ – A copy of an NNPC letter with reference number GED/F&A/08.26 dated May 5th, 2016 and titled Re: Stop Debit on all NNPC Accounts and Subsidiaries- Critical Accounts for immediate operations to the EFCC Chairman. The document was also recovered during the search of UMAR)s house.
- xii. Annexure ‘L’ Copy of Confessional Statement by UMAR to the Service stating that his trip to Maiduguri for condolence visit to Ibrahim MAGU, sequel to the loss of a close relative, was made on behalf of the Presidential Committee on Audit of Arms Purchase. Cross examination of the Chairman of the Committee, AVM John ODE (Rtd), revealed that the committee did not send any of its members on such an assignment. The visit of UMAR to MAGU is therefore assessed as an expression of their close sinister relationship at the detriment of National Security interests.
In his response to a query by the AGF based on the DSS memo, Magu had, however, faulted all the allegations and the documents.

He said Commodore Mohammed Umar (rtd) never served as a front for him.

He said: “Sir, it is important to situate my relationship with Commodore Mohammed Umar (rtd), in proper perspective.

“Our paths crossed when we became members of the Presidential Committee on the investigation on arms procurement. He was instrumental in getting some of the information that helped the committee to make significant breakthrough in its assignment.

“Beyond that, the relationship between Umar and myself is one of professional acquaintance, devoid of issues of conflict of interest. So, it comes to me with shock, the imputation by the DSS that we have a “mutually beneficial relationship”.

“This appears suggestive that Mohammed and I were involved in activities that could be said to be untoward. I certainly have no knowledge of such activities.

“The claim that EFCC documents, including EFCC letters addressed to the Vice President and being investigation reports on the activities of Emmanuel Kachikwu and his brother Dumebi Kachikwu, were found in his home during a search by the DSS came to me as a surprise.

“ If that is correct, he should be made to disclose how he came by such documents. I never discussed my official duties with him let alone give him documents pertaining to investigations being conducted by the Commission.

“Interestingly, Mohammed was detained for several months by the DSS. In all those months, did he claim that I mandated him to commit any crime or that I was an accomplice to any crime? If there is any such claim, I will wholeheartedly like to be confronted with the allegation.

“It is interesting to note that when Mohammed was eventually charged to court, the charges against him were money laundering and illegal possession of firearms, and nothing related to my purported “shady” relationship with him.”

Magu explained the circumstances in which EFCC files were found in his house after the removal of the pioneer Chairman of EFCC, Mallam Nuhu Ribadu.

He said: “It is true that my residence was searched on the orders of Mrs. Farida Waziri, shortly after she succeeded Mallam Nuhu Ribadu as Chairman of the EFCC and some documents relating to cases under investigation were found in my house. At the time of the raid, I was yet to formally hand over to my successor, Umar Sanda, as head of the Economic Governance Unit.

“My schedule at the time warranted that I worked round the clock and it was impossible to conclude all assignments without working at home.

“The documents found in my house were actually found in my office bag where I kept documents relating to investigations. I was in the process of handing over and it would be wrong to suggest that I willfully kept the Commission’s files at home.

“Nevertheless, the incident was thoroughly investigated by the police as I was placed on suspension without pay for 20 months. But in the end, I was reprimanded, recalled and promoted to Assistant Commissioner of Police.

“It is important, sir, to draw your attention to the fact that some of us that worked closely with Ribadu were victimised after his exit.

“And my ordeal was orchestrated as punishment for being the chief investigative officer for most of the high profile cases involving politically exposed persons some of whom became very influential in government at the time.

On the N39.8 million apartment rented for him, Magu said it was false that the house was also furnished for N43 million.

He added: “I live in the official residence of the Chairman of the Economic and Financial Crimes Commission (EFCC). This accommodation, contrary to the report of the DSS, is not my private home, neither was it rented and furnished for me by Commodore Umar Mohammed (rtd).

“It was rented and furnished by the Ministry of the Federal Capital Territory through the Abuja Metropolitan Management Council, under the safe house scheme.

“It is also false that the house was rented for N20 million per annum and furnished for N43 million. The entire cost for both two-year rent and the furnishing of the house is N39.628 million.

“Details of the transaction are contained in the contract award letter and payment schedule which are attached to this letter.”

He described the two times he flew in a private jet with Air Commodore Mohammed Umar, who was investigated by the DSS, as harmless gestures.

He said: “Honourable Minister, the claim that I have a penchant for expensive air travels in a private jet belonging to Commodore Mohammed is baseless. The two times I can recall travelling in Commodore Umar’s aircraft, were on a trip from Kano to Abuja, and Abuja to Maiduguri.

“In the first instance, I had gone to Kano on an official assignment with two of my directors, and Mohammed who was on his way back to Abuja offered us a ride in his jet. The second occasion was when I was going to see my sick mother in Maiduguri.

“These, for me, were harmless gestures as we were both members of the presidential investigative committee on arms procurement. At the time I had no knowledge that he was under investigation for any alleged crimes.

“Claims that I flew in Mohammed’s jet to Maiduguri in company of the Managing Director of Fidelity Bank, Nnamdi Okonkwo, is false.

“I have never flown in a private aircraft with any managing director of any bank let alone one that was under investigation by my agency. I have no personal relationship whatsoever with him.”

Meanwhile, there were indications that some Senators opposed to Magu have initiated a plot to “suspend a former Senate Leader, Sen. Ali Ndume for allegedly backing Magu and raising some observations against the President of the Senate, Dr. Bukola Saraki, and the Chairman of the Senate Committee on FCT, Senator Dino Melaye.

The observations made the Senate to ask its Ethics and Privileges Committee to investigate how the chamber came about a N300 million SUV and the row over Melaye’s graduation from Ahmadu Bello University, Zaria.

A reliable source said: “The anti-Magu Senators are accusing Ndume of acting a script to destabilise the Senate and they are plotting his suspension from the chamber.

“Since the rejection of Magu, there has been cold war between those pro-EFCC chairman and those opposed. Ndume is regarded as the arrowhead of Magu’s sympathisers who are trying to fight the Senate.

“Once the Ethics and Privileges Committee submits its report, Ndume may be suspended for “subversive activities against the Senate.

“But some Senators have asked their colleagues to ‘ignore Ndume’s nuisance’ since his candidate was rejected.”
March 25, 2017
Magu: Buhari urged to invoke veto

The umbrella body of Yoruba youths, Yoruba Council of Youths Worldwide, has given the Senate 48 hours to confirm the nomination of Ibrahim Magu as the chairman of the Economic and Financial Crimes Commission (EFCC).
They said if this is not done, they will storm the National Assembly to protest.
The National President, Mr. Oladotun Hassan, who spoke in Ibadan, Oyo State, at the inauguration of the national secretariat and swearing-in of Prince Ademola Omiyale as the chairman of the state chapter, described the rejection as an aberration, urging President Muhammadu Buhari to invoke veto power for Magu’s appointment, in line with Section 306 of the 1999 Constitution, in order to fight corruption.
Hassan said:” It is unfortunate that we operate a moribund democratic system, a system that is vested on selfish interest, a system that is inculcated in corruptive tendencies. It is until we operate a free will society where our freedom can be well defined that we will develop.
“For equity sake, there are some things you will allow to go their own way and Magu’s achievement within the little time we are talking about has spoken a lot about his level of integrity. This has proved the necessity to allow him continue the job. Why will they use DSS to crucify him? Is DSS a court of competent jurisdiction? The DSS findings cannot be determined as a judgment for an allegation.”
He said an allegation is meant to be proved beyond reasonable doubt before anybody can place a person before a confined place, which Magu is subjected to.
According to him, the senators are not bigger than all Nigerians “and cannot hold us to ransom. If they cannot hold our sovereignty for us, they should leave us alone.
“If Mr. President is going to use veto power for his confirmation, let him do it for anti-corruption sake. It is clear that the clog in the wheel of anti-corruption war is the National Assembly. Let Senate President Bukola Saraki come down from his high horse and remember that we are the same youths that believed he was being witch-hunted when he was facing his charges. Now he is witch-hunting someone else.”

March 22, 2017
Senate, DSS v Magu, Presidency

Citing a Department of State Services (DSS) report, the Senate has for the second time in three months rejected Ibrahim Magu’s nomination as Economic and Financial Crimes Commission (EFCC) chairman. It did not consider Magu’s antecedents as anti-graft czar in arriving at its decision. It has asked President Muhammadu Buhari to nominate another person for the job. Will he do that? What are his options under the law? ADEBISI ONANUGA sought lawyers’views.

Will Ibrahim Magu eventually become Economic and Financial Crimes Commission (EFCC) chairman? This is a hard nut to crack, considering that he has been rejected twice by the Senate in three months. Last Wednesday, the Senate again turned down President Muhammadu Buhari’s request to confirm him, citing a Department of State Services (DSS) report.

Last December 15, it rejected Magu because of the DSS report. In rejecting him again last Wednesday, it said, among others, that the President’s communication on the matter failed to address issues raised in the DSS report.

Some Senators also expressed disappointment at Magu’s performance during the screening session. They said he failed to properly respond to some questions.

However, there are insinuations that the Senate’s refusal to confirm Magu was partly influenced by the EFCC’s refusal to drop some high-profile probe.

Magu’s growing reputation

Incidentally, barely a few days after Senate’s rejection, Magu was invited by two leading anti-corruption organisations, the Transparency International (TI) and Global Witness, to speak at a conference on money laundering and assets recovery, holding today (March 21) in London. Magu is expected to deliver a paper on the topic: “Give us our money back – Nigeria’s fight against corruption: A critical conversation”.

The invitations, no doubt, were in recognition of the invaluable role the EFCC has been playing in the recovery of stolen funds in Magu’s more than a year in office.

Under Magu, the commission has recovered billions in foreign and local currencies from corrupt politicians and public officers.

A former Chief Security Adviser, Col. Sambo Dasuki, is in court on charges of corruption. Three former Chiefs of Air Staff -Alex Badeh, Dikko Umar and Adesola Amosu – and former Petroleum Minister Mrs Diezani Alison-Madueke, among others, are also facing charges of corruption involving huge sums of money.

Local critics have, however, accused the anti-graft agency under Magu of becoming a tool for witch-hunting which disobeys court orders often.

‘Rush’ to amend EFCC Act

To underscore the politics behind the refusal of the Senate to confirm Magu, the House of Representatives, last Wednesday, began the process of amending the EFCC Act (2004) and one of the major aspects of the proposed amendment is removing the power of the President to appoint the chairman of the commission and confer it on Nigerians through their representatives.

The bill was tabled before a session of the House, presided over by the Speaker, Yakubu Dogara, shortly after the Senate took its decision on Magu.

Already, four consolidated bills seeking to purportedly further empower the EFCC have passed second reading at a session.

Hon. Bassey Ewa, who co-sponsored the bills, said: “This amendment will open up the EFCC so that the President will no longer be the sole person to either remove or appoint the chairman of the commission.”

How should EFCC chair

be appointed?

Expectedly, the lawmakers’ rejection of Magu has generated widespread reactions, particularly because of the ongoing anti-corruption war. The Civil Society Legislative Advocacy Centre (CSLAC) and Zero-Corruption Coalition (ZCC), in a statement by Auwal Musa, expressed deep concern at the turn of events in view of the present administration’s determination to fight corruption from all fronts. The coalition said it was worrisome that the man at the forefront of recovering stolen funds within and outside the country, was rejected for a second time by the Senate, despite his outstanding performance.

There were arguments for and against on how the President should handle the appointment. While some viewed Senate’s position on the matter as unconstitutional, others saw it as an attempt to protect themselves and their political mentors from being investigated.

While Section 2 of the EFCC Act deals with the composition of the EFCC and the mode of appointment of the chairman and members of the commission, a school of thought argued that Section 2 (3) of the EFCC Act, which subjects such appointments to be made by the President to the confirmation of the Senate as unconstitutional. To this school of thought, since the EFCC is not one of the commissions listed under Section 153(1)of the Constitution, the Senate cannot sit over the confirmation of the chairman under the EFCC Act. This school of thought also argued that Section 2 (3) of the EFCC Act conferred the power to appoint the chairman only on the President and no other person.

Sections 153 (1) of the Constitution, provides that: “There shall be established for the Federation the following bodies, namely: Code of Conduct Bureau, Council of State; Federal Character Commission, Federal Civil Service Commission, Federal Judicial Service Commission, Independent National Electoral Commission, National Defence Council, National Economic Council, National Judicial Council, National Population Commission, National Security Council, Nigeria Police Council, Police Service Commission and Revenue Mobilisation Allocation and Fiscal Commission.

Observers argued that these constitutionally recognised institutions are national institutions and that the EFCC, being a federal agency, is not one of those listed in the Constitution and, therefore, the National Assembly did not have the power to confer upon itself the right to participate in the execution of the law establishing it.

To these groups, the President is at liberty to re-submit Magu’s name to the Senate for re-consideration and possible confirmation.

The Executive Secretary of the Presidential Advisory Committee on Corruption (PACAC), Prof. Bolaji Owasanoye, said the committee believed that there was nothing inhibiting Magu from being in office as the Acting EFCC chairman. “If you look at Section 171 of the 1999 Constitution, the President is empowered to retain him as long as he wants in acting capacity. As long as the President remains in office, Magu can continue to act as EFCC chairman,” he said.

He continued: “According to Section 171 (1) of the 1999 Constitution, power to appoint persons to hold or act in offices to which this section applies and to remove persons so appointed from any such office shall rest in the President.

The offices, which this section applies are namely: (a) Secretary to the Government of the Federation (b) Head of Service of the Federation (c) Ambassador, High Commissioner or other principal Representative of Nigeria abroad (d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation, howsoever designated; and (e) any office on the personal staff of the President.

“An appointment to the office of the Head of Civil Service (HOS) shall not be made except from among the Permanent Secretaries or equivalent rank in the Civil Service of the Federation or of a State. An appointment to the office of Ambassador, High Commissioner, or other Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate.

“In exercising his powers of appointment under this section, the President shall have regards to the federal character of Nigeria and the need to promote national unity.”

He added: “Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office; Provided that where a person has been appointed from a public service of the Federation or a state, he shall be entitled to return to the public service of the Federation or of the state when the President ceases to hold office.”

No doubt, the provisions of the EFCC Act has raised a lot of constitutional and non-constitutional issues on the confirmation of Magu as the EFCC chair on whether the President can appoint anyone in acting capacity when the law provides for a substantive appointment; whether the President can nominate Magu the third time; and if he can, how long can he stay in office in acting capacity? What are the options for the President on the EFCC chair under the law?

Magu’s rejection

‘illegal’

Constitutional lawyers have, however, described Senate’s refusal to confirm Magu as unconstitutional. They included Femi Falana (SAN), Former Chairman of the Nigerian Bar Association (NBA), Ikeja Branch, Monday Ubani, a member of the Ogun State Judiciary Service Commission, Abayomi Omoyinmi, Chairman, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, and Welfare Secretary of the NBA Mr Adesina.

Falana listed three options open to President Buhari, given the development on Magu. According to him, “the President may re-present Magu to the Senate if and after the government must have put its house in order; alternatively, the President may allow Magu to remain the Acting Chairman of the EFCC since he was appointed in that capacity pursuant to Section 171 of the Constitution” adding, however, that “ if the President is not satisfied with Mr. Magu’s performance, he is at liberty to appoint another person whose nomination will be forwarded to the Senate in accordance with Section 2 (3) of the EFCC Act, 2004″.

Falana described Magu’s rejection as the height of official ridicule of the office of the President. “It is high time the SSS is restrained by President Buhari from sabotaging the fight against corruption by the Federal Government,” he stated.

He also described as illegal the hurried sitting of the Senate on the matter, noting, that “the participation of many senators, who are either under investigation or being prosecuted by the EFCC, has vitiated the entire proceedings on ground of conflict of interest. It is also a contravention of the Rules of the Senate, which stipulates that matters, which are sub judice shall not be discussed by the Senate”.

Ubani, on the other hand, noted that the EFCC Act and the Constitution were clearly silent on how long Magu will be in acting capacity. Unlike the position of the CJN that was settled recently on which the Constitution was explicit on how long the nominee can be in acting capacity, that of the EFCC Chairmanship is not specified either in the EFCC Act or the Constitution. A vacuum and lacuna have, therefore, been created in this regard.

Ubani said the the President could renominate Magu for the third time if he so wishes, but any renomination without proper and effective lobbying would be a sheer waste of time.

He said the President could exploit the vacuum created by the law and keep Magu in acting capacity for a period not more than the tenure prescribed by the EFCC Act.

“The President has several options: he can drop Magu and nominate another qualified candidate or he can retain him in Acting Capacity for a period that is not more than the tenure prescribed by the EFCC Act or he can renominate Magu and accompany it with high level lobbying that must ensure his confirmation, but he must have that assurance from the Senate before he can renominate him. It is a daunting task and I do not envy the Presidency at all,” he said.

He, however, noted that it was appalling for an agency under the presidency to send reports against a candidate nominated by the same executive. “My candid opinion on Magu’s confirmation is that forces from the executive, legislature and the two main political parties all worked together to ensure that Magu was not confirmed. They are fighting back on some known and unknown wars. However, many Nigerians know better. The fate of confirming Magu by this present Senate appears sealed for ever. I will advise the President not waste his time and that of the nation in renominating Magu to this Senate,” he added.

Omoyinmi said the President could nominate Magu for the third time and probably beyond as there was no law that said it could not be done. Omoyinmi recalled that former President Olusegun Obasanjo did a similar thing with former Aviation Minister Prof. Babalola Aborisade, when he was rejected by the Senate.

“So, there is nothing stopping Magu from being in office as the acting EFCC boss. Section 171 of the 1999 Constitution empowers the President to retain him as long as he wants in acting capacity,” he argued.

Ugwummadu said the refusal of the Senate to confirm Magu was borne out of selfish interests of senators rather than any altruistic and patriotic concerns for the country, and that it attested to their position that corruption is not only fighting back, but throwing spanners in the wheels of anti-corruption crusades.

Ugwummadu pointed out that such embarrassing situation would not have featured at all had the presidency guaranteed better communication and co-ordination of its activities.

He argued that the statutory powers of the Senate under Section 2(3) of EFCC (Establishment) Acts 2004 should not be examined in isolation and in total disregard of the greater constitutional obligation under Section 15(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which they swore to uphold as one of the cardinal objectives and directive principle of the State policy to abolish all forms of corruption and abuse of office in Nigeria.

He, however, urged President Buhari to allow Magu to continue as acting chairman of the EFCC since it did not lie with the Senate to unilaterally determine who must be the President’s nominee. They merely need to confirm the President’s appointment, which they have arrogantly refused to do.

Adegbite observed that both the Constitution and the EFCC Act empowered only the President to nominate and appoint the Chairman of the EFCC.

He said, however, that the power to appoint is subject to the confirmation of the Senate.

“The consequence of this constitutional power of the Senate is to the effect that the President cannot effectively appoint the EFCC Chairman without the concurrence of the Senate. Therefore, we can safely say that both the Senate and the President are empowered to determine who becomes the Chairman of EFCC.

“Invariably, the current scenario being played out offers a spectacular opportunity to put the powers to appoint the EFCC Chairman in perspective. The Senate having rejected Magu on two occasions, have displayed their undoubted reservation for the person of Magu. But their failure to confirm Magu does not stop him to continue to act as chairman until the President nominates a fresh candidate for that office. If Magu stays put in office, he has in my view done nothing wrong.

March 21, 2017