The Illegality Of The Senate Resolution On Ibrahim Magu By Femi Falana

Mr. Ibrahim Magu was appointed as Acting Chairman of the
Economic and Financial Crimes Commission in November 2015 by
President Muhammadu Buhari. The appointment was made by the
President sequel to section 171 (1) of the Constitution. After Mr.
Magu had acted in that capacity for over a year the Senate refused
to confirm his appointment as the substantive Chairman of the EFCC.
However, as President Buhari was satisfied with the performance of
Mr. Magu he decided to retain him as the Acting Chairman of the
EFCC.

A couple of days ago, the Senate revisited the matter. In a
rather bizarre move, the Senate decided to combine legislative
powers with executive functions by passing a resolution which
purportedly directed the Acting President, Professor Yemi Osinbajo,
SAN, to remove Mr. Magu from the post of the Acting Chairman of the
EFCC forthwith. The resolution of the Senate was alleged to have
been anchored on section 2(3) of the EFCC Act which provides as
follows:

“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.”

Before passing its resolution the Senate ought to have known
from the clear and unambiguous provision of section 2 (3) of the
EFCC Act that the it has not been vested with the power to confirm
or approve any person appointed by the President to hold office in
an acting capacity. To that extent, the resolution of the Senate
constitutes an affront to section 171 (1) of the Constitution which
stipulates that:

“Power to appoint persons to hold or act in the offices to which
this section applies to remove persons so appointed from any such
office shall vest in the President.”

The offices involved are those Head of Service, Secretary to the
Government of the Federation, Permanent Secretaries and Heads of
extra ministerial departments of the Government. It is further
submitted that Section 2 (3) of the EFCC Act relied upon Senate to
justify the confirmation of the Chairman of the EFCC is
inconsistent with section 171 (2) of the Constitution. Indeed, of
all the positions listed in subsection 2 of the Constitution it is
only in the appointments of ambassadors and high commissioners made
by the President which require the confirmation of the Senate. See
section 171(4) thereof. Since the EFCC is an extra ministerial
department of the Federal Government the appointment of its
Chairman does not require the confirmation of the Senate. In other
words, section 2 (3) of the EFCC Act is inconsistent with section
171 (2) of the Constitution. To that extent, the resolution of the
Senate based on the EFCC Act is an exercise in futility.

Although neither the Presidency nor the Senate has deemed to
seek interpretation of the relevant provisions of the Constitution
from the Supreme Court the power of the President of the Republic
to make certain appointments without the confirmation of the Senate
had been challenged. In Festus Keyamo v The President & 4 Ors.
(See www.premiumtimesng.com) the plaintiff challenged the
appointment of service chiefs without the confirmation of the
Senate. The trial court set aside the appointments as the power of
the President to appoint service chiefs under section 218(2) of the
Constitution is on the ground that the appointments were qualified
by section 218(4)(b) thereof which provides that the National
Assembly shall have power to make laws for the regulation of “the
appointment, promotion and disciplinary control of the members of
the armed forces of the Federation.”

As the Constitution has made the appointments of service chiefs
subject to laws enacted by the National Assembly the court was on a
terra firma when it ruled that the appointments so made required
confirmation in line with the section 18 of the Armed Forces Act.
But in the case of Ebun Adegboruwa v Attorney-general of the
Federation (Unreported) Suit No:FHC/L/CS/1405/2012 the plaintiff
had challenged the appointment of Colonel Hameed Ali (retd) as the
Comptroller-General of Customs on the ground it was not made by
President Buhari in consonance with a Federal Government Gazette of
1985. The Gazette in question had provided that a new
Comptroller-General of Customs must be appointed from the pool of
Deputy Comptrollers-General of Customs.

In dismissing the action the Federal High Court (per Hassan J.)
held that by the combined effect of sections 5 and 171 of the
Constitution the provisions of the Gazette could not restrict or
limit the powers of the President to appoint the
Comptroller-General of Customs from outside the public service. In
the same vein, it is crystal clear that section 2 (3) of the EFCC
Act cannot subject the appointment of the chairman of the EFCC to
Senate confirmation contrary to the provisions of section 171 of
the Constitution.

In view of the foregoing, the implementation of the resolution
of the Senate on the removal of Mr. Ibrahim Magu as the Acting
Chairman of the EFCC should be ignored by the Presidency on account
of its apparent illegality. However, the distinguished Senators who
are desperate to institutionalize official corruption and impunity
in the country by removing Mr. Magu from office may have to wait
for the planned installation of the Senate President, Dr. Bukola
Saraki as the Acting President of the Federal Republic of
Nigeria!

Mr. Ibrahim Magu was appointed as Acting Chairman of the
Economic and Financial Crimes Commission in November 2015 by
President Muhammadu Buhari. The appointment was made by the
President sequel to section 171 (1) of the Constitution. After Mr.
Magu had acted in that capacity for over a year the Senate refused
to confirm his appointment as the substantive Chairman of the EFCC.
However, as President Buhari was satisfied with the performance of
Mr. Magu he decided to retain him as the Acting Chairman of the
EFCC.

A couple of days ago, the Senate revisited the matter. In a
rather bizarre move, the Senate decided to combine legislative
powers with executive functions by passing a resolution which
purportedly directed the Acting President, Professor Yemi Osinbajo,
SAN, to remove Mr. Magu from the post of the Acting Chairman of the
EFCC forthwith. The resolution of the Senate was alleged to have
been anchored on section 2(3) of the EFCC Act which provides as
follows:

“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.”

Before passing its resolution the Senate ought to have known
from the clear and unambiguous provision of section 2 (3) of the
EFCC Act that the it has not been vested with the power to confirm
or approve any person appointed by the President to hold office in
an acting capacity. To that extent, the resolution of the Senate
constitutes an affront to section 171 (1) of the Constitution which
stipulates that:

“Power to appoint persons to hold or act in the offices to which
this section applies to remove persons so appointed from any such
office shall vest in the President.”

The offices involved are those Head of Service, Secretary to the
Government of the Federation, Permanent Secretaries and Heads of
extra ministerial departments of the Government. It is further
submitted that Section 2 (3) of the EFCC Act relied upon Senate to
justify the confirmation of the Chairman of the EFCC is
inconsistent with section 171 (2) of the Constitution. Indeed, of
all the positions listed in subsection 2 of the Constitution it is
only in the appointments of ambassadors and high commissioners made
by the President which require the confirmation of the Senate. See
section 171(4) thereof. Since the EFCC is an extra ministerial
department of the Federal Government the appointment of its
Chairman does not require the confirmation of the Senate. In other
words, section 2 (3) of the EFCC Act is inconsistent with section
171 (2) of the Constitution. To that extent, the resolution of the
Senate based on the EFCC Act is an exercise in futility.

Although neither the Presidency nor the Senate has deemed to
seek interpretation of the relevant provisions of the Constitution
from the Supreme Court the power of the President of the Republic
to make certain appointments without the confirmation of the Senate
had been challenged. In Festus Keyamo v The President & 4 Ors.
(See www.premiumtimesng.com) the plaintiff challenged the
appointment of service chiefs without the confirmation of the
Senate. The trial court set aside the appointments as the power of
the President to appoint service chiefs under section 218(2) of the
Constitution is on the ground that the appointments were qualified
by section 218(4)(b) thereof which provides that the National
Assembly shall have power to make laws for the regulation of “the
appointment, promotion and disciplinary control of the members of
the armed forces of the Federation.”

As the Constitution has made the appointments of service chiefs
subject to laws enacted by the National Assembly the court was on a
terra firma when it ruled that the appointments so made required
confirmation in line with the section 18 of the Armed Forces Act.
But in the case of Ebun Adegboruwa v Attorney-general of the
Federation (Unreported) Suit No:FHC/L/CS/1405/2012 the plaintiff
had challenged the appointment of Colonel Hameed Ali (retd) as the
Comptroller-General of Customs on the ground it was not made by
President Buhari in consonance with a Federal Government Gazette of
1985. The Gazette in question had provided that a new
Comptroller-General of Customs must be appointed from the pool of
Deputy Comptrollers-General of Customs.

In dismissing the action the Federal High Court (per Hassan J.)
held that by the combined effect of sections 5 and 171 of the
Constitution the provisions of the Gazette could not restrict or
limit the powers of the President to appoint the
Comptroller-General of Customs from outside the public service. In
the same vein, it is crystal clear that section 2 (3) of the EFCC
Act cannot subject the appointment of the chairman of the EFCC to
Senate confirmation contrary to the provisions of section 171 of
the Constitution.

In view of the foregoing, the implementation of the resolution
of the Senate on the removal of Mr. Ibrahim Magu as the Acting
Chairman of the EFCC should be ignored by the Presidency on account
of its apparent illegality. However, the distinguished Senators who
are desperate to institutionalize official corruption and impunity
in the country by removing Mr. Magu from office may have to wait
for the planned installation of the Senate President, Dr. Bukola
Saraki as the Acting President of the Federal Republic of
Nigeria!