Months after Vice President Yemi Osinbajo (SAN) and Lagos lawyer, Femi Falana (SAN) publicly declared that the acting Chairman of the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu does not require the confirmation of the Senate to be in office, his supporters have renewed prayers for his confirmation by the Senate.
Professor of Law and Chairman, Presidential Advisory Committee on Anti-corruption, Itse Sagay (SAN), who also toed Osinbajo and Falana’s line when Magu was rejected for a second time by the Senate in 2017, also made a volte-face recently, and urged the Senate to revisit Magu’s case.
Speaking during a courtesy visit to the National Assembly, Sagay pleaded with Senate President, Ahmed Lawal to treat Magu’s confirmation favourably.
Magu, who was appointed November 9, 2015, has remained in office in acting capacity till date.
Although attempts were made by the Presidency to get him confirmed twice, twice he was rejected by the Senate as a result of petitions written against him, by the Department of State Services (DSS).
Then DSS boss had through a “security report” accused Magu of corruption and urged the Senate to reject his confirmation.
Following the renewed call for his confirmation by Prof. Sagay, Lawan assured that the Senate would speedily accede to his request whenever the Presidency resends his name for screening and confirmation.
But some senior lawyers, who are displeased with the development advised the Senate to reject the request until the Presidency apologises to the National Assembly and indeed Nigerians for the misleading position it (the Presidency) held about the powers of the Senate to approve the appointment of Magu.
They are also of the view that it would be a moral burden for the same Presidency, which earlier said that Senate’s confirmation was not required, by virtue of Section 171 of the 1999 constitution (as amended) to return to the same chamber seeking Magu’s confirmation.
The Section 171 Subsection (1) says: “Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President.”
Examining the issue, a Port Harcourt-based lawyer, Mr. Festus Oguche, said Sagay’s request appeared to have woken the sleeping dog.
He also wondered what informed the persistent demand for Magu’s confirmation without first clearing allegation of corruption against him.
He said: “It appears that the Magu chairmanship issue has reared its ugly head again. One begins to wonder what informed this insistence on him, particularly from the authorities.
“I do not think it has anything to do with his performance as I am yet to see any feat in the anti-corruption war that makes him indispensable as a person, if at all there is still such a war going on.
“But the question then becomes the purpose and tenacity of the current move. Is it meant to renew or extend his tenure in an acting capacity or to formalise his appointment in a substantive capacity?
“Again, he is yet to be cleared of the allegations as contained in the report of the DSS against him, which are all hanging on his head like the Sword of Damocles,” Oguche said while also wondering if the National Assembly would be exercising its legislative powers appropriately if it gives its nod to the executive’s request.
Oguche, who also expressed uncertainty whether the new tenure will dovetail into the one he had in acting capacity, or would be a new one that could make it possible for Magu to secure more tenures. “Of course, that is not within the contemplation of the Constitution, as the acting tenure has already surpassed the constitutional limits. It brings us back to the issue of the constitutional criteria for such critical positions, and the implications of the DSS’ report, which parliament cannot truly ignore in making its considerations,” he said.
Also speaking, an Abuja-based legal practitioner, Mr. Daniel Makolo, described the development as both a moral burden on the executive, as well as the failure to observe global standards and best practices by a government that rode to power on the wings of integrity.
For Makolo, who waxed philosophical, no one gives what he does not have. “Being boastful is one thing, actual display of the position you boast of is another thing. For one to fail the examination he sets is the 9th wonder of the world. How long is Mr. Magu allowed to act under Nigerian law? Is it forever?” He asked.
The executive through the DSS, he said, questioned his fitness to occupy the office, and the 8th senate agreed with it.
“But executive order has kept him there illegally for these years, and failed to clear him of the corruption baggage. He is crushed under the weight of the burden just like all his actions in office carried out under the burden. We are told by law, that he is not fit and proper to occupy the office by parliamentary authority. Anything else is void, no matter the attire it is clothed or coloured,” Makolo declared.
Stephen Azubuike, a Lagos-based lawyer said Magu’s confirmation by the Senate has lingered on for too long with its attendant distasteful undertones.
The first port of call, he noted is the Economic and Financial Crimes Commission (Establishment) Act 2004.
According to him, the relevant section is Section 2(3), which provides that “the Chairman and members of the commission other than ex-officio members shall be appointed by the President and appointment shall be subject to the confirmation of the Senate.”
“The respected legal scholars are all entitled to their opinions. To me, I am not aware of any decision of the court striking down the section of the Act cited for any reason. To that extent, the provisions of the section must be adhered to. The operative word in the section is “shall.”
“The implication is that the appointment of Magu is yet to receive the full blessing of statutory compliance. It is only hoped that the issue would be urgently looked into and resolved, especially now there appears to be a perfect synergy between the Executive and the National Assembly.
“It is rather ironic, that a man to chair an anti-corruption campaign has the so-called DSS damning report over his head, which appears to remain not totally cleared. We do not intend to dabble into the politics of the issue. What is important is that the law should lead,” he stated.
Also, Warri-based lawyer, Chief Albert Akpomudje (SAN) said if the Vice President, who said the President does not need the Senate to confirm the appointment of Magu was speaking seriously, the Presidency would have long gone ahead to do the confirmation without the Senate, instead of leaving him in an acting capacity.
“Coming back to the Senate on that same issue to ask for confirmation is not only double-speaking, but it is like blowing hot and cold at the same time, which is not allowed in law. To me, the previous statement was to undermine and ridicule the Senate as regards not knowing the limit of their constitutional duties and roles.
“If I am in the position of the Senate, I will refuse to act on this request except there is a withdrawal of the previous stance of government, and an apology to the Senate and Nigerians for misleading us,” Akpomudje said.
According to him, if the government feels strong on the issue, they should go ahead to confirm Magu without Senate approval in order to give an opportunity for the matter to be tested in court and a judicial pronouncement made on the legal position.
He insisted that the government needs the approval of the Senate to confirm the appointment of Magu, otherwise there won’t be any need to re-present his name.
In a very short and witty contribution, human rights lawyer, Chief Mike Ozekhome (SAN) said: “What goes around comes around. No one can hide behind a finger. No one can cover the sun with his palm. When the market is on fire, even the lame, deaf, dumb and blind will know because they will feel the heat.”
Former second vice president of the Nigerian Bar Association (NBA), Mr. Monday Ubani, who maintained that nobody can change the law, no matter the sentiments, stressed that the proper thing was for him to be confirmed by the Senate. “Anything short of that is incorrect. Those who canvassed to the contrary before now were not stating the true position of the law. Truth will survive lies any day, any time,” he emphasised.
Owerri, Imo State-based legal practitioner, Mr. Ike Augustine pointed out that a person can only function as EFCC chairman after his appointment has been confirmed by the Senate.
By virtue of the provision of Section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act 2004, he said, the Chairman of the commission “shall be appointed by the president of the Federal Republic of Nigeria subject to the confirmation of the Senate…”
He expressed the belief that it is totally illegal and a constitutional subterfuge for Magu to continue to act as the chairman of the EFCC, after his confirmation was turned down twice by the 8th Senate based on “cogent reasons.”
His words: “It is absolutely wrong for one to argue to the contrary, thereby encouraging impunity and subversion of the country’s laws.
“The recent call to send Magu’s name to the 9th Senate for confirmation shows that compliance with the law setting up the commission is mandatory. The duo of Prof. Osinbajo (SAN) and Prof. Sagay (SAN) are, with the greatest respect, wrong over their earlier position and it shows they are blowing hot and cold.”
Chairman, NBA, Ikorodu branch, Mr. Bayo Akinlade said: “To tell you the truth, I don’t know what is going on there. I don’t know why Magu’s appointment is not confirmed by the Senate and I don’t know why the presidency is insisting on keeping him there without clearance.”
Akinlade, however, explained that the DSS’ report against Magu were mere allegations that were not proven, adding that no matter how the people view those allegations, if he was not effective in discharging his duties as EFCC boss, the Presidency would have removed him long ago.