First Baba Isa|13 April 2017
The stalemate that the confirmation of Ibrahim Magu as the substantive Chairman of EFCC has caused between the Executive and the Senate needs no recap. We all know the details and we all have different opinions about this stalemate depending on where your interest lies or how impartial your judgment is. My concern in this piece is just to give a legal perspective to the whole drama.
But before I delve into the law of the whole stalemate, let me spare a few thoughts on the prevailing politics and complexion of governance that has coloured the whole saga. Magu is just a pawn in the chessboard of the executive and legislative politics playing out in the corridors of power. It all began when Saraki went against his party’s wish and snatched the seat of the Senate President. The Party echelon, through the machinery of the executive, has gone after Saraki relentlessly since then. And Saraki is fighting back tooth and nail to survive the onslaught.
This is not really about if anyone is guilty or innocent. It is about using their sins to destroy each other for political expediency. In other words, Saraki might not really be in court because he has done something wrong and the system wants to punish him for the good of the country. He might have done something wrong, but he is in court simply because he stepped on toes. The hands of most of our politicians are not really clean. Most of them have skeletons in their cupboards. Fellow politicians, most times, only point this out to win political wars and not for the growth and betterment of the country.
Saraki is in court because he is the Senate President. He might be guilty of all the offences. Every corrupt leader should be taken to court to answer for his offences. But in the Nigeria Political Ecosystem, the sins of a politician is shelved until those sins can be used as ammunitions against him. Even if the masses don’t understand this, pockets of powers in the executive and legislature understands this strategy. The report from the DSS is just one of such mini power plays in the grand war between the Senate and the Executive.
If not, how can you explain the fact that the Executive sends Magu’s name to the Senate and a department under the Executive (The DSS) writes a report and submits to the Senate declaring Magu unclean for the job of EFCC chair? Is the DSS trying to undermine the President? That’s the politics of long knives. Let me not say more on that for now.
Today, the President is a victim of his own legendary slowness. In one of my articles I wrote: “Since the return of democracy in 1999, Nigeria has not had a prepared president. That is a president who was willing and yearning to become president before being made or elected president; a president who has spent a lot of time thinking long and hard about what he wants to do for this country, how he wants to do it and with whom he wants to do it before being saddled with the responsibilities of a president.
Obasanjo was really not thinking of being the president before he was released from prison and asked to go to Aso Rock. Yaradua never told anyone he wanted to be president but the powers that be wanted him to be president and lo he became our president. Goodluck Jonathan in my estimation was the most unprepared of all. Infact he became everything he never said he wanted to be, from Governor to Vice President and all the way to being President.
I’m not saying they didn’t have their personal dreams and wishes for this country before they became presidents; we all have wishes and dreams for this country. But becoming a president demands a deliberate planning and a long term yearning that should allow for a well-documented articulation of such a wish and dream.
So when Buhari presented himself for the elections in 2015 for a record 4 times, I thought finally we have got a prepared man for the office of the president. I thought no man will run for the president 4 times without having a well-oiled machinery, a well-articulated vision and a well prepared team to execute the duties of the president speedily, efficiently and effectively. This supposed preparedness was Buhari’s main selling point for me.
So I was not impressed when it took months after winning the elections for the President to send the list of his ministers to the Senate. For a man who first contested for the president in 2003, such display of unpreparedness was inexcusable on any ground. I consider all those talk of the president being slow, steady and tactful as glorification of tardiness.
I’m concerned with how tardiness has become the hall mark of governance in Nigeria and the President is taking this red tape and ‘slowness’ to new heights. Everywhere you turn you will see government officials walking around doing nothing and feeling important.” And see how this slowness has messed things up concerning Magu’s confirmation.
What stopped the President from sending Magu’s name immediately to the Senate for confirmation? There is no law that says the EFCC Chair must be appointed in an acting capacity before his name is sent to the Senate for confirmation in accordance with Section 2 (2) of the EFCC Act. Why the delay? Why will you appoint a man whose job is to fight financial crimes and high profile financial criminals and you allow him to step on a lot of toes, including toes belonging to the Red Chambers before you send his name to the same Chambers for confirmation? You see how the President’s tardiness is coming back to haunt him?
However, now that the Senate has refused to confirm Magu as EFCC Chair twice, can he continue to act forever?
The EFCC Act clearly states in section 2 (2) that the Chairman of EFCC can only be appointed with the confirmation of the Senate. However, many lawyers have argued that the President can keep Magu in an acting position forever. They premise their assertion on section 11 of the Interpretation Act.
The said Section 11 states that: “(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes-
(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) power to remove or suspend him;
(c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint,-
(i) to reappoint or reinstate him”.
The above statutory provision is very clear: Magu cannot act forever. The power of the President to appoint Magu as EFCC Chair is only “exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint.; and those “limitations and conditions” are contained in Section 2 (2) of the EFCC Act that states that the Senate must confirm the appointment of the President’s appointment before it can be legal.
So once the Senate rejects anyone for the post of EFCC Chair, the said nominee, whether already performing in an acting capacity, should vacate his seat immediately. Magu’s continuous parading of himself as the Acting Chairman of EFCC is illegal, null and void. He should vacate his office immediately.
However, after Magu has vacated his seat due to the Senate’s rejection of his appointment, nothing stops the President from reappointing him again and sending his name to the Senate for confirmation. Because Section 11 of the Interpretation Act states that “(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes- (a) power to appoint a person by name or to appoint the holder from time to time of a particular office; (c) (i) to reappoint or reinstate him”.
So the EFCC Act “confers a power (on the President) to appoint a person (Magu) either to an office (EFCC Chair) or to exercise any functions, whether for a specified period or not”. And this “power includes- (a) power to appoint a person by name (Magu or anyone) or to appoint the holder (“the” here means it can be the same person) from time to time (that is indefinitely as long as the President’s power to appoint remains intact) of a particular office (in this case the EFCC Chair); (c) (i) to reappoint or reinstate him (this clearly means that the appointee can be removed, rejected, resigned and the appointer will still have the powers to reinstate or reappoint him. It is very clear”.
After the Senate’s rejection, Ibrahim Magu should immediately vacate the office in acting capacity or whatever capacity. Failing to do so will be illegal. However, nothing stops the President from reappointing him and sending his name to the Senate for confirmation again and again and again…
First Baba Isa is a Legal Practitioner and writes from Abuja.