It is no doubt that the adversity of Mr Ibrahim Magu, even prior to his suspension as then acting chairman of the Economic and Financial Crimes Commission (EFCC) has sprung a number of controversies inter alia including the constitutionality of his appointment as then acting chairman of EFCC; inconsistency of the EFCC Act with the 1999 CFRN; the allegations levelled against him by the Attorney General of the Federation and so forth.
Having kept abreast with a variety of controversies trailed the constitutionality of appointment and confirmation of a substantive EFCC Chairman, which invariably prompt the ongoing amendment of the EFCC Act and Interpretation Act by National Assembly. In this regard, this paper in the humble opinion of the writer tends to expound on the need for the acting EFCC Chairman clause as to avoid reoccurrence of the plight of Ibrahim Magu as it may occasion a disruption in operation of separation of powers in a democratic setting.
The Economic and Financial Crimes Commission (EFCC) as an anti-graft agency is a creation of statute and its operations shall be regulated by the statute creating it. Since its establishment in 2003 under the administration of Former President Olusegun Obasanjo, a few number of controversial circumstances might be said to have ushered out the past EFCC Chairmen (Nuhu Ribadu, Farida Waziri, and Ibrahim Lamorde) in which Mr Ibrahim Magu is not an exception.
Apparently, the approval of the nomination of Mr Ibrahim Magu as then tsar of the anti-graft agency was the most controversial approval that any Senate in Nigeria have ever witnessed. This is considered true, following the experienced feud between the 8th Senate under the leadership of Former Senate President, Dr. Bukola Saraki and the Presidency. Despite the rejection of his confirmation as a substantive EFCC Chairman twice by the National Assembly based on security report, he was still retained at the pleasure of Mr President.
Consequently, a quite number of legal practitioners had questioned the constitutionality of such an act by Presidency and opined the Mr President cannot override the legislative powers of the 8th Senate to confirm his nominees forwarded before the house as his actions must be in conformity with the provisions of the 1999 Constitution and EFCC Act as stipulated.
The controversies centred on the provisions of Section 171 of the 1999 Constitution (as amended), Section 2(3) of the EFCC Act and Section 11 of Interpretation Act. For ease of reference, below are the aforementioned provisions:
S.171 of the 1999 CFRN (as amended) provides thus:
(1) 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.
(2) The offices to which this section applies are, namely –
(a) Secretary to the Government of the Federation;
(b) Head of the Civil Service of the Federation;
(c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad;
(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and
(e) Any office on the personal staff of the President.
(3) An appointment to the office of the Head of the Civil Service of the Federation shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of the Federation or of a State.
(4) An appointment to the office of Ambassador, HighCommissioner or other Principal Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate.
(5) In exercising his powers of appointment under this section, the President shall have regard to the federal character of Nigeria and the need to promote national unity.
(6) Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office;
Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State whenthe President ceases to hold office.
S. 2(3) of the EFCC Act provides thus:
“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.”
S. 11 of Interpretation Act provides thus:
(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,
(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.
Moreso, numerous suits were instituted to challenge the continued stay of Mr Ibrahim Magu as then acting EFCC Chairman, despite the non-confirmation of his appointment by the 8th Senate to the extent of violating the stipulated tenure of a substantive EFCC Chairman in S.3(1) of EFCC Act which provides thus :
“The Chairman and members of the Commission other than ex-officio members shall hold office for a period of four years and may be re-apppointed for a further term of four years and no more”
In that regard, a Constitutional Abuja based lawyer, Mr Johnmary Jide-Obi has appealed the judgement of the Federal High Court in Abuja where it is recalled that Justice Ijeoma Ojukwu had in judgement she delivered December 4, 2019, declined to invalidate Magu’s continued stay in office.To that effect,she held that “a person could continue to act as EFCC Chairman at the pleasure of the Nigerian President because there was a lacuna in the law that failed to spell out a time limit for an acting tenure”.
Similarly, she held that “2(3) of the EFCC (Establishment) Act, 2004 which provides that the members and the chairman of the anti-graft agency could be appointed by the President , subject to the confirmation by the Senate, left a lacuna on how long a person could occupy the office of the Commission chairman in acting capacity”. She further, held that “in this instance, the lacuna in the law has given the president , the proverbial knife and yam to do as he pleases,being that no time is stipulated for the duration of acting capacity in this case”
Based on foregoing judgement, in the opinion of the writer, it can be gleaned that the lacuna in the EFCC Act with respect to the acting EFCC Chairman within a stipulated timeframe , has authorized Mr President to exercise his executive powers to retain Mr Ibrahim Magu as then acting chairman of the anti-graft agency. Although, Mr Ibrahim Magu is currently suspended as he is being probed before Rtd Justice Ayo Salami led presidential panel, Mr Mohammed Umar has been appointed as the incumbent acting EFCC Chairman to oversee the affairs of the anti-graft agency for the moment. Unless, the necessary actions are undertaken by the National Assembly to incorporate the acting Chairman clause in EFCC Act in due time, then the reoccurence of the plight of Mr Ibrahim Magu as then acting chairman may be inevitable. Hence, it may be considered as a threat to the operation of separation of law.
Law is said to be dynamic as it is prone to amendment from time to time. In view of this, the writer of this paper humbly, recommend the National Assembly to make provision for acting EFCC Chairman clause with a stipulated timeframe in the ongoing EFCC Act amendment, pending the appointment and confirmation of a substantive EFCC Chairman with an unquestionable integrity is properly dealt with as provided for in the EFCC Act. Thus, it shall foster proper operation of principle of separation of powers in the country.
ABOUT THE AUTHOR
Adesujo Jamiu Ayobami writes from UNIOSUN. for Comments/ Observations/Suggestions, he can be reached via: [email protected]/09097069415.
For knowledge and Justice