Magu: Ubani urges Fed Govt to obey court decision

Nigerian Bar Association (NBA) Second Vice President Monday
Ubani has urged the Federal Government to obey the judgement of a
Federal High Court, Abuja which held that the Senate acted within
the law when it rejected the nomination of Ibrahim Magu as the
Economic and Financial Crimes Commission (EFCC) chairman.

Justice John Tsho, delivering judgment on a suit filed by a
lawyer Oluwatosin Ajaomo, held that Magu’s appointment was
incomplete without Senate confirmation.

He held that the Senate was empowered to confirm or reject any
appointee to the office of the chairman of the EFCC by the
president.

Ubani said unless the executive has secured a contrary judgement
from the appellate courts, “it is not a good name for any arm of
government to be known for disobeying court orders and
judgements”.

He argued that for now, the position of the law is that the
chairman of efcc must be confirmed by the Senate.

“The executive is advised to do the needful to avoid being
branded as not respecting the rule of law and obeying the Judgement
of the Court of the land,” he said.

According to him, “we must understand and appreciate the role of
the judiciary in democracy. The most important role actually is to
interpret the law where there is any cloud of misunderstanding
surrounding the intention of the law makers involving two warring
or contending parties.

“In the case under analysis, the executive and the legislature
seem to have a bit of interpretation problem as to the confirmation
of the position of the Chairman of EFCC by the Senate.

“While the Senate believes that the Chairman of EFCC should be
confirmed by the Senate in accordance with the EFCC Act, the
executive thinks otherwise citing a favourable part of the section
of the 1999 constitution as amended that created a leeway for the
executive to avoid seeking such confirmation of that position by
the Senate.

“Such misunderstanding has created political logjam for both
arms of government to the extent that other persons that ordinarily
should have been confirmed by the Senate have been put in abeyance
for some months now thereby creating political crisis for the
government at the centre. Reason prevailed and the matter was
submitted to the judiciary for adjudication which has held that the
Senate should actually confirm the position of the Chairman of the
security agency.

“The position, therefore, is that the law of the land with
regards to confirmation of the chairman of EFCC is that the Senate
must be involved in the confirmation of the position of the
Chairman of that body as prescribed by the Act creating it
notwithstanding the provisions of the constitution which was
enacted earlier than the EFCC Act. It may well have been that the
constitution never contemplated the provisions of the EFCC Act that
makes such confirmation compulsory,” he stated.

Ubani however said that despite that Justice Tsho said the
plaintiff has no locus to institute the suit, the court still
treated all the questions that were addressed to it on its merit
and ruled on all the questions that were addressed to it.

He noted the federal government’s position to the effect that
there is a provision in the constitution where it was stated that
the EFCC is not one of the agencies that the Senate would confirm
its chairman. But experienced practitioners and many others were
saying that the EFCC Act came after the enactment of the
constitution.

He said: “If the EFCC Act makes provision that before the
chairman of the EFCC must act, he must be confirmed by the Senate,
it then means that is the intendment of that law.”

Ubani recalled that over time, “the first person that was the
chairman of the EFCC, Nuhu Ribadu, was confirmed by the Senate. The
second person that was appointed, Mrs Waziri, the woman was
confirmed by the Senate. Ibrahim Larmorde who took over after her
was also confirmed by the Senate.

“So, if all these people over the years have been confirmed by
the Senate before they started acting as the chairman, why are we
now saying that the constitution does not make provision for the
confirmation of the EFCC chairman”, he asked.

He referred to a similar development in America where Obama
appointed somebody in acting capacity beyond the time the law
allowed.

According to him, the matter went to court and the court held
that he cannot continue to keep somebody in office in acting
capacity when the law says he must be confirmed by the legislative
chamber.

“All this while, I have been arguing that the federal
government, the executive can put Magu in office in acting capacity
and why I have been saying so was because there has been no
pronouncement from the court on this seemingly ambiguous situation
that has arisen. It was ambiguous because the Senate is
interpreting the law differently, the executive is interpreting the
law differently.

“Now that the judiciary that has the constitutional role of
interpreting the law, giving correct interpretation that our law
provides and has given that interpretation as to the position of
that law, so which other arm of government is there to look up to
except they have gone on appeal and have that particular judgment
reversed.

“The current situation now is that the court has recognised that
an agency like the EFCC chairmanship that requires confirmation by
the senate must be confirmed by the Senate. That judgement stands
unless they go on appeal to reverse that judgment”, he
stressed.

Nigerian Bar Association (NBA) Second Vice President Monday
Ubani has urged the Federal Government to obey the judgement of a
Federal High Court, Abuja which held that the Senate acted within
the law when it rejected the nomination of Ibrahim Magu as the
Economic and Financial Crimes Commission (EFCC) chairman.

Justice John Tsho, delivering judgment on a suit filed by a
lawyer Oluwatosin Ajaomo, held that Magu’s appointment was
incomplete without Senate confirmation.

He held that the Senate was empowered to confirm or reject any
appointee to the office of the chairman of the EFCC by the
president.

Ubani said unless the executive has secured a contrary judgement
from the appellate courts, “it is not a good name for any arm of
government to be known for disobeying court orders and
judgements”.

He argued that for now, the position of the law is that the
chairman of efcc must be confirmed by the Senate.

“The executive is advised to do the needful to avoid being
branded as not respecting the rule of law and obeying the Judgement
of the Court of the land,” he said.

According to him, “we must understand and appreciate the role of
the judiciary in democracy. The most important role actually is to
interpret the law where there is any cloud of misunderstanding
surrounding the intention of the law makers involving two warring
or contending parties.

“In the case under analysis, the executive and the legislature
seem to have a bit of interpretation problem as to the confirmation
of the position of the Chairman of EFCC by the Senate.

“While the Senate believes that the Chairman of EFCC should be
confirmed by the Senate in accordance with the EFCC Act, the
executive thinks otherwise citing a favourable part of the section
of the 1999 constitution as amended that created a leeway for the
executive to avoid seeking such confirmation of that position by
the Senate.

“Such misunderstanding has created political logjam for both
arms of government to the extent that other persons that ordinarily
should have been confirmed by the Senate have been put in abeyance
for some months now thereby creating political crisis for the
government at the centre. Reason prevailed and the matter was
submitted to the judiciary for adjudication which has held that the
Senate should actually confirm the position of the Chairman of the
security agency.

“The position, therefore, is that the law of the land with
regards to confirmation of the chairman of EFCC is that the Senate
must be involved in the confirmation of the position of the
Chairman of that body as prescribed by the Act creating it
notwithstanding the provisions of the constitution which was
enacted earlier than the EFCC Act. It may well have been that the
constitution never contemplated the provisions of the EFCC Act that
makes such confirmation compulsory,” he stated.

Ubani however said that despite that Justice Tsho said the
plaintiff has no locus to institute the suit, the court still
treated all the questions that were addressed to it on its merit
and ruled on all the questions that were addressed to it.

He noted the federal government’s position to the effect that
there is a provision in the constitution where it was stated that
the EFCC is not one of the agencies that the Senate would confirm
its chairman. But experienced practitioners and many others were
saying that the EFCC Act came after the enactment of the
constitution.

He said: “If the EFCC Act makes provision that before the
chairman of the EFCC must act, he must be confirmed by the Senate,
it then means that is the intendment of that law.”

Ubani recalled that over time, “the first person that was the
chairman of the EFCC, Nuhu Ribadu, was confirmed by the Senate. The
second person that was appointed, Mrs Waziri, the woman was
confirmed by the Senate. Ibrahim Larmorde who took over after her
was also confirmed by the Senate.

“So, if all these people over the years have been confirmed by
the Senate before they started acting as the chairman, why are we
now saying that the constitution does not make provision for the
confirmation of the EFCC chairman”, he asked.

He referred to a similar development in America where Obama
appointed somebody in acting capacity beyond the time the law
allowed.

According to him, the matter went to court and the court held
that he cannot continue to keep somebody in office in acting
capacity when the law says he must be confirmed by the legislative
chamber.

“All this while, I have been arguing that the federal
government, the executive can put Magu in office in acting capacity
and why I have been saying so was because there has been no
pronouncement from the court on this seemingly ambiguous situation
that has arisen. It was ambiguous because the Senate is
interpreting the law differently, the executive is interpreting the
law differently.

“Now that the judiciary that has the constitutional role of
interpreting the law, giving correct interpretation that our law
provides and has given that interpretation as to the position of
that law, so which other arm of government is there to look up to
except they have gone on appeal and have that particular judgment
reversed.

“The current situation now is that the court has recognised that
an agency like the EFCC chairmanship that requires confirmation by
the senate must be confirmed by the Senate. That judgement stands
unless they go on appeal to reverse that judgment”, he
stressed.