This paper seeks to examine the
propriety of Ibrahim Magu as the Acting Chairman of EFCC after the
pronouncement of the Federal High Court presided over by Justice
Tsoho in Abuja.
Twice, President Buhari had submitted
the name of Magu as the substantive chairman of EFCC to be
confirmed by the Senate as required by the EFCC Act, section 2(3)
to be precise, and twice was his confirmation denied by them. Their
reason/s for refusal to confirm his appointment was a damaging
security report from the DSS that portrayed Magu as unfit and
improper person to hold the exalted office of the chairman of EFCC.
It will be recalled that before the presentation of his name by the
President for confirmation, Magu was already placed on an Acting
capacity for some time. After the initial refusal, he was retained
by the president but still on acting capacity. Some of us at
that time deprecated the act of DSS in sending an indicting report
straight to the Senate without first submitting the said report to
the presidency. We suspected foul play and advised that the
president should represent the name of Magu with proper explanation
to some of the allegations of DSS against him. After some time,
Magu’s name was re-submitted to the senate for reconsideration and
for the second time another damaging report was also sent to the
senate by the same DSS citing the unsuitability of Magu for the
chairmanship position of EFCC.
We were all outraged and expected that
heads would roll for these acts of intransigence and national
sabotage but alas not even a whisper was heard from the presidency.
We remained alarmed up to this point, hoping to get explanation
someday for this confused manner of running a government.
Soon thereafter legal opinions started
to fly about that EFCC as an agency is not one of the agencies
created by law that requires its chairman to be confirmed by the
senate. Section 171 of the 1999 constitution as amended was pushed
forward ferociously by the likes of Mr Femi Falana SAN, (my leader)
and even the Vice President of the country, Professor Yemi Osinbajo
SAN. They were countered by another school of thought that held the
strong view that the chairmanship position of EFCC ought to be
confirmed by the Senate before he takes his seat. They cited other
substantive chairmen like Ribadu, Madam Farida Waziri and Lamorde
that received that confirmation from the Senate as required by law.
They further queried that if it is true that the executive does not
believe that the chairmanship position should be confirmed first by
the senate, why did they submit the name of Magu for confirmation
for the number of times they did? Finally, they stressed the fact
that as at 1999 when the constitution was enacted, an agency known
as EFCC was not in contemplation or created and so couldn’t have
been mentioned by the constitution. The truth of the matter is that
EFCC as an agency was created in 2004 by the Obasanjo
administration, which means that the constitution could not have
listed EFCC at that time as one of the agencies whose chairmanship
position must be confirmed by the Senate. The EFCC Act of 2004,
Section 2(3) however provided that mandatorily the chairmanship
position must be confirmed by the Senate. The word used in the said
section is “shall” which connotes compulsion.
In the midst of this total confusion
some lawyers and commentators proffered some measure of
interpretation in order to abate haze and cloud that covered
everywhere at that time. They held the strong view, though wrongly,
that since there is no timeline provided by law in Nigeria on how
long a person can “act” in acting capacity, President Buhari can
allow Magu in acting capacity pending the time the matter may
be resolved politically or a pronouncement of the court sought and
received. I did, even at that time during one of the days in a
paper review at Radio Continental 102.3 advise that either the
Executive or the Legislature should seek judicial intervention in
the light of the misunderstanding existing between the two arms of
government as to the correct interpretation of the position of the
law about confirmation by the Senate. Alas, none of the arms of
government was ready to embark on the ‘suicide mission’ for fear of
being ruled against. However, a lawyer by name Oluwatosin Ojaomo
apparently convinced that the senate does not possess the power
under the law to deny confirmation to Magu especially on the
grounds of adverse security report from DSS, took the bull by the
horn and sought the intervention of the court to resolve the
impasse once and for all. Mr Ojaomo has asked the court in his
application to reverse the rejection of Mr Magu on the grounds that
the Senate “lacked powers to reject a nominated candidate for the
said position” following his interpretation of the EFCC Act, 2004.
According to the motion, Mr Ojaomo sought the determination of two
issues by the court: 1 Whether the senate had powers to reject a
validly nominated candidate by the presidency for the said position
and 2. Whether the Senate was not bound by the provisions of the
EFCC Act Section 2(3) to confirm any candidate nominated by the
presidency for the said position. ACCORDING TO MR OJAOMO, THE
PROVISIONS OF THE SECTION THAT THE PRESIDENT “SHALL” NOMINATE A
CANDIDATE WHILE THE SENATE “SHALL” CONFIRM THE NOMINATED CANDIDATE
MEANS THAT THE ROLE OF THE SENATE IS ONLY TO AFFIRM THE DECISION OF
THE PRESIDENCY AND NOT TO QUESTION IT.
In his ruling however, Justice John
Tsoho said the section referred to by the applicant was
misconceived. According to the judge the said section provided that
the presidency makes the nomination “subject” to the ratification
by the Senate. The judge further interpreted the word “subject to”
as used in the Act to mean “depending on”. Therefore the
APPOINTMENT OF THE CHAIRMAN IS DEPENDENT ON CONFIRMATION BY THE
SENATE. He further said “The Senate is thus conferred with
authority to ensure the choice of only suitable and credible
persons for the appointment to that office. The submission of the
plaintiff however gives the impression that the senate only exists
to rubber stamp the President’s appointment of a chairman. Such
view runs counter to the proper intendment of Section 2(3) of the
EFCC Act 2004 and is misconceived”
However the matter was struck out for
lack of locus on the part of the Plaintiff. Some legal commentators
have latched on this issue of locus to hold the view that the court
made no decision on the matter since the matter was struck out. In
fact one legal expert dubbed the ruling as a ‘legal opinion’. I do
not share the sentiment of these commentators. There is a judicial
practice, which is highly commendable, adopted by judges recently
whenever the issue of jurisdiction comes up in the course of
proceedings. They are no longer hasty to derail the course of
justice on the altar of legal technicality, but are in pursuit of
whole Justice which has become a top priority for them. The
practice adopted by our judges nowadays is to decide the
entire case on its merits as well as rule on the issue of
jurisdiction leaving it for the appellate courts to correct them if
they are wrong both on their decisions on the substantive matter
and on jurisdiction. By that practice the courts in Nigeria
are actually being sensitive to the desire of Nigerians to hasten
the course of justice in our country rather than the perennial
delay of trials and proceedings that have been our lot and which
has given our judiciary bad reputation. Surprisingly it is our
activists who ordinarily have been lamenting on the delays in our
judicial system are the ones deploring this procedure, and I cannot
understand why it is so. It is indeed a good procedure that should
attract commendation from those who desire quicker dispensation of
justice in our nation. It is sad that Justice Tsoho was of the view
that a “lawyer” who ordinarily should stand for due process and
upholding of the rule of law does not have “locus” to initiate a
public interest matter that touches on the interpretation of our
constitution and an enactment of our legislature. The matter is on
appeal and we hope that this decision will be looked into
critically and a position reached which makes room for liberal
legal policy in the matter of “locus” on public interest
litigation. After Adesanya’s case which is a Locus
Classicus on “Locus standi”, a
lot of progress have been made both on our substantive and
procedural laws to liberalize the legal space for initiation of
public interest litigations by the members of the public who need
not prove “suffering hardship far and above other citizens”. That
is the way for us to go as a nation. However it is important to
point out here that despite the fact that the matter was
struck out by the judge on the issue of locus, the COURT REACHED A
DECISION ON THE ISSUES REFERRED TO IT FOR DETERMINATION AND THE
RATIO OF THAT DECISION IS THAT THE APPOINTMENT OF MAGU AS
CHAIRMAN OF EFCC IS SUBJECT TO CONFIRMATION BY THE SENATE AND
CONFIRMATION IMPLIES EITHER ACCEPTANCE OR REJECTION. This decision
can be upheld and affirmed or reversed on appeal but until it is
reversed, it remains the decision of the court today in
NIGERIA.
CAN MAGU REMAIN ACTING
CHAIRMAN OF EFCC IN THE LIGHT OF THIS DECISION?
- 2(3) of the EFCC Act 2004 envisages a
situation where the appointment of the chairman and other officials
of the board will be confirmed by the Senate before they are
allowed to occupy and act in their offices. However, the
practicality of this scenario often does not play out the way the
framers of the law intend it to apply. There are a times, and it
does occur often, that a public officer whose appointment is
subject to confirmation by the legislature may not be automatically
accepted or rejected, immediately the names are
presented by the President. In that case, the public officer will
be placed on an “acting capacity” pending the time the substantive
office or position will be confirmed by the legislative assembly.
That was clearly the issue with the position of Magu when his
appointment was on “acting capacity” pending the time his
appointment will be confirmed. Moreover, the Executive did
not help matters by not sending his name for confirmation on time,
it was done several months thereafter. Indeed S11 of the
Interpretation Act gives power to whosoever has the power to
appoint to also appoint same person in acting capacity to the
office. This usually occurs where there is a temporary vacancy and
before there is time to fill such vacancy with the substantive
office holder. In respect of the topic under discussion, this
“Acting Appointment” ceases the moment the body authorized by the
EFCC Act to confirm refuses either altruistically or maliciously to
accept the nominee as the substantive chairman of the Agency. There
is nowhere either in the EFCC Act, the Interpretation Act or in the
Constitution where a public officer can continue to act in “Acting
Capacity” the moment the confirmatory body has held whether
altruistically or maliciously that that person is unqualified and
unfit to occupy that office.
There are three possible actions open
to a country (President) where her legislators have possibly acted
not in the best interest of the country in rejecting a suitably
qualified candidate for public office:
(a) A written protest from the
president to the legislators with a possible replacement. Examples
abound in American history where Presidents like Presidents
Washington, Andrew Johnson, Bush and even Obama had their
nominees rejected by the Senate. They replaced those nominees
with protest letters to the legislators.
(b) Seek for a judicial interpretation
if the Executive feels strongly that the legislators have acted way
above their powers (ultra vires) in rejecting the nominees, at
least we saw it in the recent case of Mr Oluwatosin Ojaomo, a
lawyer whose case before the Federal High Court had prompted
this discussion, and finally
(c) A patriotic and alert electorates
who will use their voting power to chase out of the legislative
chambers those they consider as “irresponsible legislators”
whose stomach is their God and who do not consider national
interest in carrying out their sacred national duties.
The above is what the country and its
citizens can do if they are unlucky to be “blessed” with less
patriotic legislators. That the country and its citizens will
call for disobedience to the institutions created by law and insist
on disobedience to the rule of law is an invitation to anarchy and
destruction of a settled system which is not healthy for the
country. This should not be the route to contemplate especially in
a democracy!
COMPLEXITIES OF MAGU IN
ACTING CAPACITY AND ITS IMPLICATION FOR THE COUNTRY IN THE LIGHT OF
THE RECENT CASE OF THE SUPREME COURT IN AMERICA.
Recently the Supreme Court of America
laid to rest the legal and political implications of placing a
public officer in an “acting capacity” when the law creating the
said office demands the confirmation by the legislature. The
Supreme Court Justices by six votes to two votes affirmed an
August 2015 decision by the D.C. Circuit, which found that one
Solomon improperly served as ” Acting General Counsel” during the
almost three year period between January 2011 and late 2013 while
his nomination for confirmation as the Board’s General Counsel
languished in the Republican controlled Senate. Ultimately the then
President Obama withdrew Solomon’s nomination and put forward
Richard Griffin, Jnr., who was eventually confirmed on October 29,
2013.
FACTS OF THE
CASE.
National Labour Relations Board is one
of the Agencies in the United States which has a position of
“General Counsel” that must be confirmed by the Senate. A federal
law known as Federal Vacancies Reform Act enacted in 1998 gives the
President authority to appoint ‘Acting Officers’ to serve in these
offices that require legislative confirmation until the President’s
nominee/s completes the sometimes lengthy Senate confirmation
process.
Pursuant to the above Act, when a
former occupier of the position of General Counsel vacated that
office in 2010, President Obama appointed one Mr Solomon Lafe to
become the Agency’s Acting General Counsel. Six months
later, former President Obama sent Solomon’s name to the
Senate for confirmation. The Senate did not take any action on
Solomon’s confirmation, in other words he was not confirmed
(accepted). They later returned his name to the President at
the expiration of the congressional term. Although Obama
resubmitted his nomination in 2013, he later withdrew it and
nominated Richard Griffin Jnr, whom the Senate confirmed as General
Counsel in late 2013.
One of the directors of the Boards
(National Labour Relations Board) who was acting as an agent of Mr.
Solomon issued a complaint alleging that a particular Company by
name South-West General had committed unfair Labour practices, but
the company put up a defense that Mr. Solomon lacked authority to
issue and litigate that complaint because his service as “Acting
General Counsel” during the pendency of his nomination to the
General Counsel position violated the Federal Vacancies Reform Act.
The D.C. Circuit agreed with the company and interpreted the
federal Act as prohibiting any individual whose position is subject
to confirmation by the Senate from serving as an “Acting Officer”
while he or she has become a nominee to fill that office for a full
term. Agreeing with this position, one of the Justices of the
Supreme Court, Chief Justice Roberts who wrote for the majority was
of the view that applying the Federal Act to the case at hand was
straightforward and concluded by holding that once President Obama
submitted Solomon’s nomination to fill the General Counsel position
for a full term for confirmation, the Federal Act PROHIBITED
SOLOMON FROM CONTINUING IN THE ACTING GENERAL COUNSEL ROLE. CHIEF
JUSTICE ROBERTS FURTHER NOTED THAT PRESIDENT OBAMA COULD HAVE
APPOINTED ANY OTHER PERSON TO ACT IN THE ACTING CAPACITY DURING THE
PENDENCY OF SOLOMON’S NOMINATION THAT REQUIRES CONFIRMATION.
BECAUSE THE THEN PRESIDENT DID NOT DO SO, MR SOLOMON CONTINUED TO
ACT WRONGLY AS HIS ACT VIOLATED THE FEDERAL LAW.
IMPLICATION OF THAT
JUDGEMENT TO OUR SITUATION.
EVEN THOUGH we do not practice
accurately the American system of government and their
constitution, the truth of the matter is that we actually borrowed
the American presidential system, its constitution (written) and
its practices as a model for our country. Therefore court’s
decisions like the above can be of persuasive influence to us as a
people especially where there is dearth of legal authorities in
Nigeria on the issue under discussion. The reason is because there
is striking similarities in system and practices by both
countries. It can be canvassed and authoritatively too that
since the EFCC Act never envisaged the position of its
chairman to be under any acting capacity at any time, he or
she ought to be confirmed first by the Senate before he
or she starts to act as the substantive chairman of the agency. IN
OTHER WORDS, THE MOMENT THE PRESIDENT APPOINTS A PERSON AND SENDS
THE NOMINEE TO THE SENATE FOR CONFIRMATION THAT PERSONS CEASES TO
ACT IN THAT “ACTING CAPACITY” PENDING ACCEPTANCE OR REJECTION BY
THE SENATE. ANOTHER PERSON CAN BE APPOINTED TO THAT ACTING CAPACITY
AND CERTAINLY NOT THE PERSON WHOSE NAME HAS BEEN SUBMITTED FOR
CONFIRMATION BY THE SENATE. HE CAN REMAIN IN AN ACTING CAPACITY
UNTIL HIS OR HER NAME IS SUBMITTED FOR CONFIRMATION. Even the
Interpretation Act is resorted to wrongly at times cannot be of
help here since the substantive act (The EFCC Act) did cover the
ground leaving no room for lacuna. However, even if it is
agreed that the relevant section in the Interpretation Act
that gives room for “acting capacity”, that can only be for a
temporary period pending the time the position will be accepted or
rejected by the confirmatory authority, i.e., (the Senate). THE
MOMENT THE CONFIRMATORY AUTHORITY EXERCISES ITS POWER BY ACCEPTING
OR REJECTING THE CONFIRMATION OF THAT POSITION, THE AFFECTED PERSON
AUTOMATICALLY CEASES TO ACT IN ACTING CAPACITY. IT IS EITHER HE OR
SHE ASSUMES THE POSITION OF SUBSTANTIVE CHAIRMAN UPON ACCEPTANCE OR
CEASES TO ACT IN THAT CAPACITY WHEN REJECTED UNLESS HE IS
REPRESENTED IMMEDIATELY BY THE PRESIDENT FOR RECONSIDERATION. Which
is not what is the case with Ibrahim Magu presently.
Though we may press for us to overlook
some of the defects in the operations of our laws due to lack of
precedence and argue that Magu was in acting capacity when his name
was submitted to the senate for confirmation, the moment the Senate
returns a verdict of “no” to his confirmation, he ceases
automatically to act as the Acting Chairman of EFCC. Any act done
pursuant to that capacity will be declared null, void and illegal
going by the decision of the SUPREME COURT ON THE ABOVE QUOTED CASE
OF NLRB V. SW GENERAL, INC POSTED NLRB DEVELOPMENTS IN MARCH 22,
2017. www.managementmemo.com. FINALLY MAY I SUBMIT
WITH DUE RESPECT THAT IBRAHIM MAGU AS AT TODAY IS ACTING ILLEGALLY
AS THE ACTING CHAIRMAN OF EFCC SINCE HIS APPOINTMENT FAILED THE
LITMUS TEST OF ACCEPTANCE BY THE SENATE OF THE FEDERAL REPUBLIC OF
NIGERIA. My position on this issue is purely on legal consideration
and does not question the ability and competence of Magu as an
individual as his competence remains not in doubt.
Monday Onyekachi Ubani
Esq,
LEGAL PRACTITIONER, PRINCIPAL
PARTNER UBANI & CO, (CURRENTLY THE 2ND VICE PRESIDENT OF
NIGERIAN BAR ASSOCIATION.)
This paper seeks to examine the
propriety of Ibrahim Magu as the Acting Chairman of EFCC after the
pronouncement of the Federal High Court presided over by Justice
Tsoho in Abuja.
Twice, President Buhari had submitted
the name of Magu as the substantive chairman of EFCC to be
confirmed by the Senate as required by the EFCC Act, section 2(3)
to be precise, and twice was his confirmation denied by them. Their
reason/s for refusal to confirm his appointment was a damaging
security report from the DSS that portrayed Magu as unfit and
improper person to hold the exalted office of the chairman of EFCC.
It will be recalled that before the presentation of his name by the
President for confirmation, Magu was already placed on an Acting
capacity for some time. After the initial refusal, he was retained
by the president but still on acting capacity. Some of us at
that time deprecated the act of DSS in sending an indicting report
straight to the Senate without first submitting the said report to
the presidency. We suspected foul play and advised that the
president should represent the name of Magu with proper explanation
to some of the allegations of DSS against him. After some time,
Magu’s name was re-submitted to the senate for reconsideration and
for the second time another damaging report was also sent to the
senate by the same DSS citing the unsuitability of Magu for the
chairmanship position of EFCC.
We were all outraged and expected that
heads would roll for these acts of intransigence and national
sabotage but alas not even a whisper was heard from the presidency.
We remained alarmed up to this point, hoping to get explanation
someday for this confused manner of running a government.
Soon thereafter legal opinions started
to fly about that EFCC as an agency is not one of the agencies
created by law that requires its chairman to be confirmed by the
senate. Section 171 of the 1999 constitution as amended was pushed
forward ferociously by the likes of Mr Femi Falana SAN, (my leader)
and even the Vice President of the country, Professor Yemi Osinbajo
SAN. They were countered by another school of thought that held the
strong view that the chairmanship position of EFCC ought to be
confirmed by the Senate before he takes his seat. They cited other
substantive chairmen like Ribadu, Madam Farida Waziri and Lamorde
that received that confirmation from the Senate as required by law.
They further queried that if it is true that the executive does not
believe that the chairmanship position should be confirmed first by
the senate, why did they submit the name of Magu for confirmation
for the number of times they did? Finally, they stressed the fact
that as at 1999 when the constitution was enacted, an agency known
as EFCC was not in contemplation or created and so couldn’t have
been mentioned by the constitution. The truth of the matter is that
EFCC as an agency was created in 2004 by the Obasanjo
administration, which means that the constitution could not have
listed EFCC at that time as one of the agencies whose chairmanship
position must be confirmed by the Senate. The EFCC Act of 2004,
Section 2(3) however provided that mandatorily the chairmanship
position must be confirmed by the Senate. The word used in the said
section is “shall” which connotes compulsion.
In the midst of this total confusion
some lawyers and commentators proffered some measure of
interpretation in order to abate haze and cloud that covered
everywhere at that time. They held the strong view, though wrongly,
that since there is no timeline provided by law in Nigeria on how
long a person can “act” in acting capacity, President Buhari can
allow Magu in acting capacity pending the time the matter may
be resolved politically or a pronouncement of the court sought and
received. I did, even at that time during one of the days in a
paper review at Radio Continental 102.3 advise that either the
Executive or the Legislature should seek judicial intervention in
the light of the misunderstanding existing between the two arms of
government as to the correct interpretation of the position of the
law about confirmation by the Senate. Alas, none of the arms of
government was ready to embark on the ‘suicide mission’ for fear of
being ruled against. However, a lawyer by name Oluwatosin Ojaomo
apparently convinced that the senate does not possess the power
under the law to deny confirmation to Magu especially on the
grounds of adverse security report from DSS, took the bull by the
horn and sought the intervention of the court to resolve the
impasse once and for all. Mr Ojaomo has asked the court in his
application to reverse the rejection of Mr Magu on the grounds that
the Senate “lacked powers to reject a nominated candidate for the
said position” following his interpretation of the EFCC Act, 2004.
According to the motion, Mr Ojaomo sought the determination of two
issues by the court: 1 Whether the senate had powers to reject a
validly nominated candidate by the presidency for the said position
and 2. Whether the Senate was not bound by the provisions of the
EFCC Act Section 2(3) to confirm any candidate nominated by the
presidency for the said position. ACCORDING TO MR OJAOMO, THE
PROVISIONS OF THE SECTION THAT THE PRESIDENT “SHALL” NOMINATE A
CANDIDATE WHILE THE SENATE “SHALL” CONFIRM THE NOMINATED CANDIDATE
MEANS THAT THE ROLE OF THE SENATE IS ONLY TO AFFIRM THE DECISION OF
THE PRESIDENCY AND NOT TO QUESTION IT.
In his ruling however, Justice John
Tsoho said the section referred to by the applicant was
misconceived. According to the judge the said section provided that
the presidency makes the nomination “subject” to the ratification
by the Senate. The judge further interpreted the word “subject to”
as used in the Act to mean “depending on”. Therefore the
APPOINTMENT OF THE CHAIRMAN IS DEPENDENT ON CONFIRMATION BY THE
SENATE. He further said “The Senate is thus conferred with
authority to ensure the choice of only suitable and credible
persons for the appointment to that office. The submission of the
plaintiff however gives the impression that the senate only exists
to rubber stamp the President’s appointment of a chairman. Such
view runs counter to the proper intendment of Section 2(3) of the
EFCC Act 2004 and is misconceived”
However the matter was struck out for
lack of locus on the part of the Plaintiff. Some legal commentators
have latched on this issue of locus to hold the view that the court
made no decision on the matter since the matter was struck out. In
fact one legal expert dubbed the ruling as a ‘legal opinion’. I do
not share the sentiment of these commentators. There is a judicial
practice, which is highly commendable, adopted by judges recently
whenever the issue of jurisdiction comes up in the course of
proceedings. They are no longer hasty to derail the course of
justice on the altar of legal technicality, but are in pursuit of
whole Justice which has become a top priority for them. The
practice adopted by our judges nowadays is to decide the
entire case on its merits as well as rule on the issue of
jurisdiction leaving it for the appellate courts to correct them if
they are wrong both on their decisions on the substantive matter
and on jurisdiction. By that practice the courts in Nigeria
are actually being sensitive to the desire of Nigerians to hasten
the course of justice in our country rather than the perennial
delay of trials and proceedings that have been our lot and which
has given our judiciary bad reputation. Surprisingly it is our
activists who ordinarily have been lamenting on the delays in our
judicial system are the ones deploring this procedure, and I cannot
understand why it is so. It is indeed a good procedure that should
attract commendation from those who desire quicker dispensation of
justice in our nation. It is sad that Justice Tsoho was of the view
that a “lawyer” who ordinarily should stand for due process and
upholding of the rule of law does not have “locus” to initiate a
public interest matter that touches on the interpretation of our
constitution and an enactment of our legislature. The matter is on
appeal and we hope that this decision will be looked into
critically and a position reached which makes room for liberal
legal policy in the matter of “locus” on public interest
litigation. After Adesanya’s case which is a Locus
Classicus on “Locus standi”, a
lot of progress have been made both on our substantive and
procedural laws to liberalize the legal space for initiation of
public interest litigations by the members of the public who need
not prove “suffering hardship far and above other citizens”. That
is the way for us to go as a nation. However it is important to
point out here that despite the fact that the matter was
struck out by the judge on the issue of locus, the COURT REACHED A
DECISION ON THE ISSUES REFERRED TO IT FOR DETERMINATION AND THE
RATIO OF THAT DECISION IS THAT THE APPOINTMENT OF MAGU AS
CHAIRMAN OF EFCC IS SUBJECT TO CONFIRMATION BY THE SENATE AND
CONFIRMATION IMPLIES EITHER ACCEPTANCE OR REJECTION. This decision
can be upheld and affirmed or reversed on appeal but until it is
reversed, it remains the decision of the court today in
NIGERIA.
CAN MAGU REMAIN ACTING
CHAIRMAN OF EFCC IN THE LIGHT OF THIS DECISION?
- 2(3) of the EFCC Act 2004 envisages a
situation where the appointment of the chairman and other officials
of the board will be confirmed by the Senate before they are
allowed to occupy and act in their offices. However, the
practicality of this scenario often does not play out the way the
framers of the law intend it to apply. There are a times, and it
does occur often, that a public officer whose appointment is
subject to confirmation by the legislature may not be automatically
accepted or rejected, immediately the names are
presented by the President. In that case, the public officer will
be placed on an “acting capacity” pending the time the substantive
office or position will be confirmed by the legislative assembly.
That was clearly the issue with the position of Magu when his
appointment was on “acting capacity” pending the time his
appointment will be confirmed. Moreover, the Executive did
not help matters by not sending his name for confirmation on time,
it was done several months thereafter. Indeed S11 of the
Interpretation Act gives power to whosoever has the power to
appoint to also appoint same person in acting capacity to the
office. This usually occurs where there is a temporary vacancy and
before there is time to fill such vacancy with the substantive
office holder. In respect of the topic under discussion, this
“Acting Appointment” ceases the moment the body authorized by the
EFCC Act to confirm refuses either altruistically or maliciously to
accept the nominee as the substantive chairman of the Agency. There
is nowhere either in the EFCC Act, the Interpretation Act or in the
Constitution where a public officer can continue to act in “Acting
Capacity” the moment the confirmatory body has held whether
altruistically or maliciously that that person is unqualified and
unfit to occupy that office.
There are three possible actions open
to a country (President) where her legislators have possibly acted
not in the best interest of the country in rejecting a suitably
qualified candidate for public office:
(a) A written protest from the
president to the legislators with a possible replacement. Examples
abound in American history where Presidents like Presidents
Washington, Andrew Johnson, Bush and even Obama had their
nominees rejected by the Senate. They replaced those nominees
with protest letters to the legislators.
(b) Seek for a judicial interpretation
if the Executive feels strongly that the legislators have acted way
above their powers (ultra vires) in rejecting the nominees, at
least we saw it in the recent case of Mr Oluwatosin Ojaomo, a
lawyer whose case before the Federal High Court had prompted
this discussion, and finally
(c) A patriotic and alert electorates
who will use their voting power to chase out of the legislative
chambers those they consider as “irresponsible legislators”
whose stomach is their God and who do not consider national
interest in carrying out their sacred national duties.
The above is what the country and its
citizens can do if they are unlucky to be “blessed” with less
patriotic legislators. That the country and its citizens will
call for disobedience to the institutions created by law and insist
on disobedience to the rule of law is an invitation to anarchy and
destruction of a settled system which is not healthy for the
country. This should not be the route to contemplate especially in
a democracy!
COMPLEXITIES OF MAGU IN
ACTING CAPACITY AND ITS IMPLICATION FOR THE COUNTRY IN THE LIGHT OF
THE RECENT CASE OF THE SUPREME COURT IN AMERICA.
Recently the Supreme Court of America
laid to rest the legal and political implications of placing a
public officer in an “acting capacity” when the law creating the
said office demands the confirmation by the legislature. The
Supreme Court Justices by six votes to two votes affirmed an
August 2015 decision by the D.C. Circuit, which found that one
Solomon improperly served as ” Acting General Counsel” during the
almost three year period between January 2011 and late 2013 while
his nomination for confirmation as the Board’s General Counsel
languished in the Republican controlled Senate. Ultimately the then
President Obama withdrew Solomon’s nomination and put forward
Richard Griffin, Jnr., who was eventually confirmed on October 29,
2013.
FACTS OF THE
CASE.
National Labour Relations Board is one
of the Agencies in the United States which has a position of
“General Counsel” that must be confirmed by the Senate. A federal
law known as Federal Vacancies Reform Act enacted in 1998 gives the
President authority to appoint ‘Acting Officers’ to serve in these
offices that require legislative confirmation until the President’s
nominee/s completes the sometimes lengthy Senate confirmation
process.
Pursuant to the above Act, when a
former occupier of the position of General Counsel vacated that
office in 2010, President Obama appointed one Mr Solomon Lafe to
become the Agency’s Acting General Counsel. Six months
later, former President Obama sent Solomon’s name to the
Senate for confirmation. The Senate did not take any action on
Solomon’s confirmation, in other words he was not confirmed
(accepted). They later returned his name to the President at
the expiration of the congressional term. Although Obama
resubmitted his nomination in 2013, he later withdrew it and
nominated Richard Griffin Jnr, whom the Senate confirmed as General
Counsel in late 2013.
One of the directors of the Boards
(National Labour Relations Board) who was acting as an agent of Mr.
Solomon issued a complaint alleging that a particular Company by
name South-West General had committed unfair Labour practices, but
the company put up a defense that Mr. Solomon lacked authority to
issue and litigate that complaint because his service as “Acting
General Counsel” during the pendency of his nomination to the
General Counsel position violated the Federal Vacancies Reform Act.
The D.C. Circuit agreed with the company and interpreted the
federal Act as prohibiting any individual whose position is subject
to confirmation by the Senate from serving as an “Acting Officer”
while he or she has become a nominee to fill that office for a full
term. Agreeing with this position, one of the Justices of the
Supreme Court, Chief Justice Roberts who wrote for the majority was
of the view that applying the Federal Act to the case at hand was
straightforward and concluded by holding that once President Obama
submitted Solomon’s nomination to fill the General Counsel position
for a full term for confirmation, the Federal Act PROHIBITED
SOLOMON FROM CONTINUING IN THE ACTING GENERAL COUNSEL ROLE. CHIEF
JUSTICE ROBERTS FURTHER NOTED THAT PRESIDENT OBAMA COULD HAVE
APPOINTED ANY OTHER PERSON TO ACT IN THE ACTING CAPACITY DURING THE
PENDENCY OF SOLOMON’S NOMINATION THAT REQUIRES CONFIRMATION.
BECAUSE THE THEN PRESIDENT DID NOT DO SO, MR SOLOMON CONTINUED TO
ACT WRONGLY AS HIS ACT VIOLATED THE FEDERAL LAW.
IMPLICATION OF THAT
JUDGEMENT TO OUR SITUATION.
EVEN THOUGH we do not practice
accurately the American system of government and their
constitution, the truth of the matter is that we actually borrowed
the American presidential system, its constitution (written) and
its practices as a model for our country. Therefore court’s
decisions like the above can be of persuasive influence to us as a
people especially where there is dearth of legal authorities in
Nigeria on the issue under discussion. The reason is because there
is striking similarities in system and practices by both
countries. It can be canvassed and authoritatively too that
since the EFCC Act never envisaged the position of its
chairman to be under any acting capacity at any time, he or
she ought to be confirmed first by the Senate before he
or she starts to act as the substantive chairman of the agency. IN
OTHER WORDS, THE MOMENT THE PRESIDENT APPOINTS A PERSON AND SENDS
THE NOMINEE TO THE SENATE FOR CONFIRMATION THAT PERSONS CEASES TO
ACT IN THAT “ACTING CAPACITY” PENDING ACCEPTANCE OR REJECTION BY
THE SENATE. ANOTHER PERSON CAN BE APPOINTED TO THAT ACTING CAPACITY
AND CERTAINLY NOT THE PERSON WHOSE NAME HAS BEEN SUBMITTED FOR
CONFIRMATION BY THE SENATE. HE CAN REMAIN IN AN ACTING CAPACITY
UNTIL HIS OR HER NAME IS SUBMITTED FOR CONFIRMATION. Even the
Interpretation Act is resorted to wrongly at times cannot be of
help here since the substantive act (The EFCC Act) did cover the
ground leaving no room for lacuna. However, even if it is
agreed that the relevant section in the Interpretation Act
that gives room for “acting capacity”, that can only be for a
temporary period pending the time the position will be accepted or
rejected by the confirmatory authority, i.e., (the Senate). THE
MOMENT THE CONFIRMATORY AUTHORITY EXERCISES ITS POWER BY ACCEPTING
OR REJECTING THE CONFIRMATION OF THAT POSITION, THE AFFECTED PERSON
AUTOMATICALLY CEASES TO ACT IN ACTING CAPACITY. IT IS EITHER HE OR
SHE ASSUMES THE POSITION OF SUBSTANTIVE CHAIRMAN UPON ACCEPTANCE OR
CEASES TO ACT IN THAT CAPACITY WHEN REJECTED UNLESS HE IS
REPRESENTED IMMEDIATELY BY THE PRESIDENT FOR RECONSIDERATION. Which
is not what is the case with Ibrahim Magu presently.
Though we may press for us to overlook
some of the defects in the operations of our laws due to lack of
precedence and argue that Magu was in acting capacity when his name
was submitted to the senate for confirmation, the moment the Senate
returns a verdict of “no” to his confirmation, he ceases
automatically to act as the Acting Chairman of EFCC. Any act done
pursuant to that capacity will be declared null, void and illegal
going by the decision of the SUPREME COURT ON THE ABOVE QUOTED CASE
OF NLRB V. SW GENERAL, INC POSTED NLRB DEVELOPMENTS IN MARCH 22,
2017. www.managementmemo.com. FINALLY MAY I SUBMIT
WITH DUE RESPECT THAT IBRAHIM MAGU AS AT TODAY IS ACTING ILLEGALLY
AS THE ACTING CHAIRMAN OF EFCC SINCE HIS APPOINTMENT FAILED THE
LITMUS TEST OF ACCEPTANCE BY THE SENATE OF THE FEDERAL REPUBLIC OF
NIGERIA. My position on this issue is purely on legal consideration
and does not question the ability and competence of Magu as an
individual as his competence remains not in doubt.
Monday Onyekachi Ubani
Esq,
LEGAL PRACTITIONER, PRINCIPAL
PARTNER UBANI & CO, (CURRENTLY THE 2ND VICE PRESIDENT OF
NIGERIAN BAR ASSOCIATION.)