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.
