The ding-dong between the Presidency and the Senate over
Economic and Financial Crimes Commission (EFCC) Acting Chairman
Ibrahim Magu continues. For the umpteenth time, the Presidency has
restated that Magu, whose nomination as EFCC chair the Senate has
rejected twice, is the man for the job. The Senate has said Magu
must go for it to do its job of confirming nominees for executive
positions. But the Presidency is not ready to balk. Lawyers point
the way out. ADEBISI ONANUGA writes.
There seems to be no end to the feud between the Senate and the
Presidency over the confirmation of the Acting Chairman of the
Economic and Financial Crimes Commission (EFCC), Ibrahim Magu.
The lawmakers are quarrelling with the Presidency for keeping
Magu in office despite their rejection of his nomination twice.
But, according to a statement credited to Acting President Yemi
Osinbajo, the Senate’s confirmation is not necessary.
The Senate saw Prof Osinbajo’s position as confrontational and
asked him to retract the statement. The Acting President, leaning
on Section 171 of the Constitution, refused to do so.
Although senators were divided on the issue, on resumption from
the Eid-il-Fitri break last Tuesday, they renewed hostility against
the Presidency.
Immediately after Senate President Bukola Saraki read a letter
from Osinbajo, requesting for the confirmation of Mr. Lanre
Gbajabiamila as Director-General of the National Lottery Regulatory
Commission, Senator Ahmed Sani Yerima (APC, Zamfara) raised a point
of order on the Acting President’s statement.
He insisted that the Senate discussed the Acting President’s
statement before considering the request for Gbajabiamila’s
confirmation.
To show that it meant business, the Senate, after its debate,
adopted some resolutions asking the Acting President to withdraw
the statement that the Senate does not have the power to confirm
certain nominees.
It said the Acting President must respect the Constitution and
other laws on confirmation of appointments.
It resolved that unless the Acting President did this, “the
Senate would suspend all issues relating to confirmation of
nominees from the executive until all issues of confirmation as
contained in the Constitution and laws of the Federation are
adhered to”.
In addition, it asked the Acting President to respect the
rejection of nominees by the Senate.
Prof Osinbajo in April, while speaking on Magu’s rejection,
said: “It is up to the Senate to make their judgment, and it is up
to us to say what we want to do. If our candidate is rejected, we
can re-present him. No law says we can’t re-present him.”
In his response to the threat of the Senate, Prof Osinbajo, who
spoke through Governor Nasir El-Rufai on Thursday in Kaduna, during
the inauguration of the EFCC Zonal office, insisted that “Magu is
the man for the job”.
The Acting President said: “We have every confidence in Magu to
fight corruption to a standstill. He will remain the EFCC chairman
as long as I remain the Acting President and as well as Muhammadu
Buhari remains the President.
“It is our belief that Magu will continue to remain a nightmare
for corrupt people for years to come.”
Conspiracy theories
Some observers are, however, worried about the effect of the
continuing face-off between the two arms of government over Magu.
To some, the threat may have political undertone. To this group,
the threat to get Magu out of office may not be unconnected with
the agency’s plan to recover $3 million allegedly laundered for a
governor, from the London-Paris Club refund. Some governors are
alleged to be behind the scheme to get him out of office to
forestall investigation by the agency.
More worrisome to them are the Senate’s resolutions taken at a
time it is expected to maintain status quo because of the cases in
court on Magu’s confirmation.
For instance on Friday, a Federal High Court in Abuja struck out
a suit seeking to compel President Muhammadu Buhari to sack Magu
and the suspended Secretary to the Government of the Federation,
David Lawal.
The decision was informed by a change of mind by the plaintiffs
– Save Nigeria Group (SNG) and Kingdom Human Rights Foundation
International (KHRFI) – whose lawyer, Kingdom Okeke, applied to
withdraw the cases.
The groups filed the suit marked: FHC/ABJ/15/1072/16 on December
29, 2015, in the wake of the corruption allegations levelled by the
Senate against Lawal and Magu.
Okeke applied orally for the withdrawal of the case because his
clients had reconsidered their position on the matter in the public
interest.
After listening to Okeke, Justice John Tsoho struck out the
case.
Okeke said after the court’s proceedings: ”The boards of the
plaintiffs looked at the issue of the $43 million discovered in a
flat in Osborne building in Ikoyi, Lagos and discovered that Magu
had done well.”
Falana’s position
Activist lawyer Femi Falana (SAN) said the Senate lacked the
power to confirm or approve any person appointed by the President
to hold office in an acting capacity.
He advised the Presidency to ignore the Senate’s resolution on
Magu’s removal.
His words: “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.”
Falana added: “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.’”
In a statement entitled: “The illegality of Senate Resolution on
Mr. Ibrahim Magu!”, Falana said the Senate’s action constitutes an
affront to Section 171 (1) of the Constitution.
He said the Senate ought to have known from the clear and
unambiguous provision of Section 2 (3) of the EFCC Act that 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
before passing its resolution.
He said: “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 or to remove persons so
appointed from any such office shall vest in the President”.
He noted that Section 2 (3) of the EFCC Act relied upon by
Senate to justify the non-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 the appointment of ambassadors and high
commissioners made by the President that 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.”
He noted, however, that neither the Presidency nor the Senate
has deemed it fit to seek interpretation of the relevant provisions
of the Constitution from the Supreme Court, on the power of the
President of the Republic to make certain appointments without the
confirmation of the Senate.
More lawyers react
Other lawyers, including Dafe Akpedeye (SAN), Babatunde Fashanu
(SAN), former Chairman, Nigerian Bar Association (NBA) Ikorodu,
Dotun Adetunji and incumbent chairman Levi Adikwaone, also spoke on
the threat of the Senate to Vice President Osinbajo.
Although they held dissenting opinions on whether the Presidency
or the Senate was right, they agreed that the crisis was
unnecessary.
Impasse unfortunate
Akpedeye described the impasse as rather unfortunate. He said:
“The principle of separation of powers and checks and balances in a
constitutional democracy such as ours is not in place for political
tussle or ego clash but to check the propensity to abuse power by
any arm of government.
“The question that each party should ask is whether their stand
is in agreement with the the Rule of Law? They need to do some form
of introspection to see the harm this tussle does to us as a
nation; heating up the polity or stifling the run of administration
at a period where we are yet grappling with economic and security
issues cannot be in the collective interest of Nigerians. It is
rather unfortunate.”
Akpedeye noted that the implication on the Presidency and the
Upper Chamber was quite enormous.
He said: “If the Senate makes good its threat of withholding any
further confirmation, the affected sectors will bear the brunt. For
the constitution to require Senate’s confirmation for an office, it
must be one that is very important and strategic to a national
life. The civil servants in those sectors may continue the basic
tasks to keep them running at the basic level but phenomenal growth
and development may not be achieved. More instructive is the fact
that this impasse may further strain the relationship between the
Executive and the Legislature. Where there is no harmonious
relationship between those two, good governance becomes difficult,
if not impossible”.
He reasoned that it was not likely the impasse would have much
effect on government’s commitment to corruption fight. To him, the
fight against corruption is not a one-man show.
“The slur I see in the narrative is that the Senate’s rejection
of his nomination is hinged on an alleged damning DSS report.”
He, however, disagreed with the opinion that Section 171 of the
Constitution confers power on the Presidency to appoint Magu in an
acting capacity.
“That section clearly itemises the offices where persons may be
so appointed in an acting capacity. The Latin term Expressio Unius
Est Exclusio Alterius is apposite in this regardcv- that is: the
expression of one thing is the exclusion of the other. If the
Legislature had meant to include the EFCC in that list, it would
have referred to it expressly.
“However, the doctrine of necessity may be relied on in this
case, as vacuum is undesirable in public office. Nevertheless, the
idea of appointing anyone in an acting capacity is for a ‘stop-gap’
or if you like, interim purpose. It is not meant to be in
perpetuity. Perpetuating same amounts to indirectly side-tracking
the law that provides for substantive appointment to the
office.
“S 3(1) of the EFCC Act stipulates that the Chairman shall hold
office for a period of four years and may be appointed for a
further period of four years. The law does not envisage elongation
of the Chairman’s term under the guise of acting chairmanship. In
my opinion, it is not only unlawful, it is akin to setting a bad
precedence.”
He said the way out is for both parties to sheath their sword
and find a middle ground.
“The Executive should not make it seem like the fight against
corruption is dependent on any individual. The Senate should also
refrain from halting their constitutional duties to browbeat the
Executive to their side. A political solution can be found.
“Where this cannot be achieved, the third arm of government- the
Judiciary should be called upon to interpret the extent of the
powers of each arm as it relates to this imbroglio. The verdict of
the Supreme Court should thus be final and binding on both
parties.”
‘Allow Magu do his job’
Fashanu blamed the development on the executive which he said
ought not to have sought confirmation in the first place.
He said: “In the constitution, the EFCC is not among the
government bodies that need to be confirmed when they appoint their
head and the constitution overrides any EFCC Act which is an
inferior legislation. They do not have to seek confirmation again.
If anybody is not happy about it, then they can go to court.”
Fashanu stated that the reason the senate threatened the Vice
President was because government did not sending Magu for
reconfirmation again.
“Osinbajo is of the view that they don’t need confirmation, they
don’t need to send him back to them. Now that the Senate has now
seen that they have been defeated, they are now saying that they
would not confirm any body that needs confirmation under the
constitution.
“If the government says this is the person they want, and we can
all see that he is performing, except of course if the Senate has
something to hide, and I believe that those in the Senate have
something to hide.”
He said there was nothing illegal if the government decides to
keep Magu in office in acting capacity.
‘I don’t know why they are taking it so personal that they had
to remove Magu. Why are they taking it personal?”, he asked
Fashanu advised that the government should ignore the Senate and
keep Magu in office.
“It is Magu that is the anti- corruption face! and the Senate
cannot appoint somebody for the executive. It is the executive that
has gotten the mandate. And if the government has come to the
conclusion that they don’t need their confirmation, then that
should be it. If they feel it is Magu that can do the job, they
don’t need their confirmation. If the Senators feel they should
confirm, let them go to court. It is not by saying that if there
are other people that need confirmation, they would not confirm. Is
that what we elected them for? They are not doing their job. The
path that the Senate has taken is pro-corruption. If they want to
support the anti-corruption programme, then they should allow
government to pick whoever they like. Let them allow Magu to do his
job instead of behaving like school boys”, he added.
‘Tit-for-tat not necessary’
Ananaba said the directive of the Senate to the acting Vice
President was not right, describing it as a result of “tit for
tat.” He noted the row between the Senate and the Presidency is not
what is needed in the country now.
Ananaba said: “We need cooperation between the arms of
government. I believe this particular incident should have been
referred to the court for proper solution. There is a reason why
sections 4, 5 and 6 are put near each other. It is because they
have to work with each other. So, if four and 5 have disagreement,
they go to 6. So, now, the matter should be referred to the court
so that the court would determine this confirmation issue.
“The argument is that the constitution does not provide for
confirmation. The practice has been by the earlier governments,
including this government, to send for confirmation. So, why would
you send for confirmation if you didn’t think that it was
necessary? The issue is that something as important and
constitutional, that the Senate should have been neutral.
“But I think that the rejection of Magu should not raise so much
problem. It should be referred to the court to determine whether
confirmation is required. And when the court makes a pronouncement,
that matter would be left to rest rather than the reactionary
situation that we are seeing now.”
He said the resolution of the senate that if Magu is not
removed, they won’t confirm any other person needing confirmation
would affect the progress of government and economy ‘which is why
we need government.”
“Whereas this country is facing more problems than issue of
confirmation or no confirmation. Our President is sick. We need to
pray for him, we need to come together. How can we now begin
serious fight again even when our President is sick, even when what
we have is an acting President? I think this is not the best for
us. I think we should take it in a matured manner, refer it to the
court and then we would not have issues”, he said.
‘Judicial solution required’
Adetunji said the “only consequential step forward is to invite
the court to expeditiously state the true position of the law once
and for all.
“Both the executive and legislature, as it were, have the onus
on them constitutionally as per Mr. Magu’s appointment but the
ensuing power play is what the court needs to rationalise and
decide upon once and for all.
“In my humble opinion, the war against corruption is too
important to be mired in this type of controversy and as such, an
urgent solution is required. The present situation of the country
in the instant is a risky one considering the impassé between the
Senate and the Presidency.
“If the lawmakers make good their threat not to confirm nominees
for public office henceforth until the battle between the two arms
of government over the fate of the Acting Chairman of the EFCC, Mr
Ibrahim Magu, is resolved, this will have an adverse effect on the
situation of the country apart from the fact that it will affect
preparations for the 2019 general elections and other important
national activities.
“It might equally tempt the Executive to also resort to
counter-measures which could plunge the nation into crisis and
endanger our democracy.
“This obviously is a needless power struggle and a distraction
to the nation’s growth. The timely intervention of the court in the
circumstance seems to be one of, if not the only way out of this
quagmire,” he said.
Adikwaone said: ”I really do not know the basis for the face-off
between the Senate and the Presidency on the matter of Magu as the
EFCC helmsman.
“When you juxtapose Section 171 of the 1999 Constitution of the
Federal Republic of Nigeria (as amended) with Section 2(3) of the
EFCC Act, I am of the respectful opinion that until the court says
otherwise, the position of Senate would stand.
“Senate’s position is supported by the Executive vide the report
of one of its agencies, the Department of State Services (DSS).
“Two, there is an extant law – Section 2(3) of the EFCC Act –
expressly empowering the Senate to confirm the appointment.
“Thirdly, the Presidency, on its own accord presented Magu to
the Senate for the umpteenth time for confirmation. For the
Presidency to turn around at this point in time smacks of
approbating and reprobating.
“For me, Magu, respectfully has been rejected ex cathedral, ex
cautela! The only thing that can save him is a court seized with
jurisdiction.
The Nation
The ding-dong between the Presidency and the Senate over
Economic and Financial Crimes Commission (EFCC) Acting Chairman
Ibrahim Magu continues. For the umpteenth time, the Presidency has
restated that Magu, whose nomination as EFCC chair the Senate has
rejected twice, is the man for the job. The Senate has said Magu
must go for it to do its job of confirming nominees for executive
positions. But the Presidency is not ready to balk. Lawyers point
the way out. ADEBISI ONANUGA writes.
There seems to be no end to the feud between the Senate and the
Presidency over the confirmation of the Acting Chairman of the
Economic and Financial Crimes Commission (EFCC), Ibrahim Magu.
The lawmakers are quarrelling with the Presidency for keeping
Magu in office despite their rejection of his nomination twice.
But, according to a statement credited to Acting President Yemi
Osinbajo, the Senate’s confirmation is not necessary.
The Senate saw Prof Osinbajo’s position as confrontational and
asked him to retract the statement. The Acting President, leaning
on Section 171 of the Constitution, refused to do so.
Although senators were divided on the issue, on resumption from
the Eid-il-Fitri break last Tuesday, they renewed hostility against
the Presidency.
Immediately after Senate President Bukola Saraki read a letter
from Osinbajo, requesting for the confirmation of Mr. Lanre
Gbajabiamila as Director-General of the National Lottery Regulatory
Commission, Senator Ahmed Sani Yerima (APC, Zamfara) raised a point
of order on the Acting President’s statement.
He insisted that the Senate discussed the Acting President’s
statement before considering the request for Gbajabiamila’s
confirmation.
To show that it meant business, the Senate, after its debate,
adopted some resolutions asking the Acting President to withdraw
the statement that the Senate does not have the power to confirm
certain nominees.
It said the Acting President must respect the Constitution and
other laws on confirmation of appointments.
It resolved that unless the Acting President did this, “the
Senate would suspend all issues relating to confirmation of
nominees from the executive until all issues of confirmation as
contained in the Constitution and laws of the Federation are
adhered to”.
In addition, it asked the Acting President to respect the
rejection of nominees by the Senate.
Prof Osinbajo in April, while speaking on Magu’s rejection,
said: “It is up to the Senate to make their judgment, and it is up
to us to say what we want to do. If our candidate is rejected, we
can re-present him. No law says we can’t re-present him.”
In his response to the threat of the Senate, Prof Osinbajo, who
spoke through Governor Nasir El-Rufai on Thursday in Kaduna, during
the inauguration of the EFCC Zonal office, insisted that “Magu is
the man for the job”.
The Acting President said: “We have every confidence in Magu to
fight corruption to a standstill. He will remain the EFCC chairman
as long as I remain the Acting President and as well as Muhammadu
Buhari remains the President.
“It is our belief that Magu will continue to remain a nightmare
for corrupt people for years to come.”
Conspiracy theories
Some observers are, however, worried about the effect of the
continuing face-off between the two arms of government over Magu.
To some, the threat may have political undertone. To this group,
the threat to get Magu out of office may not be unconnected with
the agency’s plan to recover $3 million allegedly laundered for a
governor, from the London-Paris Club refund. Some governors are
alleged to be behind the scheme to get him out of office to
forestall investigation by the agency.
More worrisome to them are the Senate’s resolutions taken at a
time it is expected to maintain status quo because of the cases in
court on Magu’s confirmation.
For instance on Friday, a Federal High Court in Abuja struck out
a suit seeking to compel President Muhammadu Buhari to sack Magu
and the suspended Secretary to the Government of the Federation,
David Lawal.
The decision was informed by a change of mind by the plaintiffs
– Save Nigeria Group (SNG) and Kingdom Human Rights Foundation
International (KHRFI) – whose lawyer, Kingdom Okeke, applied to
withdraw the cases.
The groups filed the suit marked: FHC/ABJ/15/1072/16 on December
29, 2015, in the wake of the corruption allegations levelled by the
Senate against Lawal and Magu.
Okeke applied orally for the withdrawal of the case because his
clients had reconsidered their position on the matter in the public
interest.
After listening to Okeke, Justice John Tsoho struck out the
case.
Okeke said after the court’s proceedings: ”The boards of the
plaintiffs looked at the issue of the $43 million discovered in a
flat in Osborne building in Ikoyi, Lagos and discovered that Magu
had done well.”
Falana’s position
Activist lawyer Femi Falana (SAN) said the Senate lacked the
power to confirm or approve any person appointed by the President
to hold office in an acting capacity.
He advised the Presidency to ignore the Senate’s resolution on
Magu’s removal.
His words: “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.”
Falana added: “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.’”
In a statement entitled: “The illegality of Senate Resolution on
Mr. Ibrahim Magu!”, Falana said the Senate’s action constitutes an
affront to Section 171 (1) of the Constitution.
He said the Senate ought to have known from the clear and
unambiguous provision of Section 2 (3) of the EFCC Act that 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
before passing its resolution.
He said: “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 or to remove persons so
appointed from any such office shall vest in the President”.
He noted that Section 2 (3) of the EFCC Act relied upon by
Senate to justify the non-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 the appointment of ambassadors and high
commissioners made by the President that 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.”
He noted, however, that neither the Presidency nor the Senate
has deemed it fit to seek interpretation of the relevant provisions
of the Constitution from the Supreme Court, on the power of the
President of the Republic to make certain appointments without the
confirmation of the Senate.
More lawyers react
Other lawyers, including Dafe Akpedeye (SAN), Babatunde Fashanu
(SAN), former Chairman, Nigerian Bar Association (NBA) Ikorodu,
Dotun Adetunji and incumbent chairman Levi Adikwaone, also spoke on
the threat of the Senate to Vice President Osinbajo.
Although they held dissenting opinions on whether the Presidency
or the Senate was right, they agreed that the crisis was
unnecessary.
Impasse unfortunate
Akpedeye described the impasse as rather unfortunate. He said:
“The principle of separation of powers and checks and balances in a
constitutional democracy such as ours is not in place for political
tussle or ego clash but to check the propensity to abuse power by
any arm of government.
“The question that each party should ask is whether their stand
is in agreement with the the Rule of Law? They need to do some form
of introspection to see the harm this tussle does to us as a
nation; heating up the polity or stifling the run of administration
at a period where we are yet grappling with economic and security
issues cannot be in the collective interest of Nigerians. It is
rather unfortunate.”
Akpedeye noted that the implication on the Presidency and the
Upper Chamber was quite enormous.
He said: “If the Senate makes good its threat of withholding any
further confirmation, the affected sectors will bear the brunt. For
the constitution to require Senate’s confirmation for an office, it
must be one that is very important and strategic to a national
life. The civil servants in those sectors may continue the basic
tasks to keep them running at the basic level but phenomenal growth
and development may not be achieved. More instructive is the fact
that this impasse may further strain the relationship between the
Executive and the Legislature. Where there is no harmonious
relationship between those two, good governance becomes difficult,
if not impossible”.
He reasoned that it was not likely the impasse would have much
effect on government’s commitment to corruption fight. To him, the
fight against corruption is not a one-man show.
“The slur I see in the narrative is that the Senate’s rejection
of his nomination is hinged on an alleged damning DSS report.”
He, however, disagreed with the opinion that Section 171 of the
Constitution confers power on the Presidency to appoint Magu in an
acting capacity.
“That section clearly itemises the offices where persons may be
so appointed in an acting capacity. The Latin term Expressio Unius
Est Exclusio Alterius is apposite in this regardcv- that is: the
expression of one thing is the exclusion of the other. If the
Legislature had meant to include the EFCC in that list, it would
have referred to it expressly.
“However, the doctrine of necessity may be relied on in this
case, as vacuum is undesirable in public office. Nevertheless, the
idea of appointing anyone in an acting capacity is for a ‘stop-gap’
or if you like, interim purpose. It is not meant to be in
perpetuity. Perpetuating same amounts to indirectly side-tracking
the law that provides for substantive appointment to the
office.
“S 3(1) of the EFCC Act stipulates that the Chairman shall hold
office for a period of four years and may be appointed for a
further period of four years. The law does not envisage elongation
of the Chairman’s term under the guise of acting chairmanship. In
my opinion, it is not only unlawful, it is akin to setting a bad
precedence.”
He said the way out is for both parties to sheath their sword
and find a middle ground.
“The Executive should not make it seem like the fight against
corruption is dependent on any individual. The Senate should also
refrain from halting their constitutional duties to browbeat the
Executive to their side. A political solution can be found.
“Where this cannot be achieved, the third arm of government- the
Judiciary should be called upon to interpret the extent of the
powers of each arm as it relates to this imbroglio. The verdict of
the Supreme Court should thus be final and binding on both
parties.”
‘Allow Magu do his job’
Fashanu blamed the development on the executive which he said
ought not to have sought confirmation in the first place.
He said: “In the constitution, the EFCC is not among the
government bodies that need to be confirmed when they appoint their
head and the constitution overrides any EFCC Act which is an
inferior legislation. They do not have to seek confirmation again.
If anybody is not happy about it, then they can go to court.”
Fashanu stated that the reason the senate threatened the Vice
President was because government did not sending Magu for
reconfirmation again.
“Osinbajo is of the view that they don’t need confirmation, they
don’t need to send him back to them. Now that the Senate has now
seen that they have been defeated, they are now saying that they
would not confirm any body that needs confirmation under the
constitution.
“If the government says this is the person they want, and we can
all see that he is performing, except of course if the Senate has
something to hide, and I believe that those in the Senate have
something to hide.”
He said there was nothing illegal if the government decides to
keep Magu in office in acting capacity.
‘I don’t know why they are taking it so personal that they had
to remove Magu. Why are they taking it personal?”, he asked
Fashanu advised that the government should ignore the Senate and
keep Magu in office.
“It is Magu that is the anti- corruption face! and the Senate
cannot appoint somebody for the executive. It is the executive that
has gotten the mandate. And if the government has come to the
conclusion that they don’t need their confirmation, then that
should be it. If they feel it is Magu that can do the job, they
don’t need their confirmation. If the Senators feel they should
confirm, let them go to court. It is not by saying that if there
are other people that need confirmation, they would not confirm. Is
that what we elected them for? They are not doing their job. The
path that the Senate has taken is pro-corruption. If they want to
support the anti-corruption programme, then they should allow
government to pick whoever they like. Let them allow Magu to do his
job instead of behaving like school boys”, he added.
‘Tit-for-tat not necessary’
Ananaba said the directive of the Senate to the acting Vice
President was not right, describing it as a result of “tit for
tat.” He noted the row between the Senate and the Presidency is not
what is needed in the country now.
Ananaba said: “We need cooperation between the arms of
government. I believe this particular incident should have been
referred to the court for proper solution. There is a reason why
sections 4, 5 and 6 are put near each other. It is because they
have to work with each other. So, if four and 5 have disagreement,
they go to 6. So, now, the matter should be referred to the court
so that the court would determine this confirmation issue.
“The argument is that the constitution does not provide for
confirmation. The practice has been by the earlier governments,
including this government, to send for confirmation. So, why would
you send for confirmation if you didn’t think that it was
necessary? The issue is that something as important and
constitutional, that the Senate should have been neutral.
“But I think that the rejection of Magu should not raise so much
problem. It should be referred to the court to determine whether
confirmation is required. And when the court makes a pronouncement,
that matter would be left to rest rather than the reactionary
situation that we are seeing now.”
He said the resolution of the senate that if Magu is not
removed, they won’t confirm any other person needing confirmation
would affect the progress of government and economy ‘which is why
we need government.”
“Whereas this country is facing more problems than issue of
confirmation or no confirmation. Our President is sick. We need to
pray for him, we need to come together. How can we now begin
serious fight again even when our President is sick, even when what
we have is an acting President? I think this is not the best for
us. I think we should take it in a matured manner, refer it to the
court and then we would not have issues”, he said.
‘Judicial solution required’
Adetunji said the “only consequential step forward is to invite
the court to expeditiously state the true position of the law once
and for all.
“Both the executive and legislature, as it were, have the onus
on them constitutionally as per Mr. Magu’s appointment but the
ensuing power play is what the court needs to rationalise and
decide upon once and for all.
“In my humble opinion, the war against corruption is too
important to be mired in this type of controversy and as such, an
urgent solution is required. The present situation of the country
in the instant is a risky one considering the impassé between the
Senate and the Presidency.
“If the lawmakers make good their threat not to confirm nominees
for public office henceforth until the battle between the two arms
of government over the fate of the Acting Chairman of the EFCC, Mr
Ibrahim Magu, is resolved, this will have an adverse effect on the
situation of the country apart from the fact that it will affect
preparations for the 2019 general elections and other important
national activities.
“It might equally tempt the Executive to also resort to
counter-measures which could plunge the nation into crisis and
endanger our democracy.
“This obviously is a needless power struggle and a distraction
to the nation’s growth. The timely intervention of the court in the
circumstance seems to be one of, if not the only way out of this
quagmire,” he said.
Adikwaone said: ”I really do not know the basis for the face-off
between the Senate and the Presidency on the matter of Magu as the
EFCC helmsman.
“When you juxtapose Section 171 of the 1999 Constitution of the
Federal Republic of Nigeria (as amended) with Section 2(3) of the
EFCC Act, I am of the respectful opinion that until the court says
otherwise, the position of Senate would stand.
“Senate’s position is supported by the Executive vide the report
of one of its agencies, the Department of State Services (DSS).
“Two, there is an extant law – Section 2(3) of the EFCC Act –
expressly empowering the Senate to confirm the appointment.
“Thirdly, the Presidency, on its own accord presented Magu to
the Senate for the umpteenth time for confirmation. For the
Presidency to turn around at this point in time smacks of
approbating and reprobating.
“For me, Magu, respectfully has been rejected ex cathedral, ex
cautela! The only thing that can save him is a court seized with
jurisdiction.
The Nation
Read more https://nairalaw.com/magu-let-supreme-court-decide-say-sans/