Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Buhari, Magu and selective adherence to rule of law 12 May 2017

Section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act 2004 provides as follows: “The Chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to confirmation by the Senate.” It was in compliance with this provision of the law that President Muhammadu Buhari sent the name of the Acting Chairman of the EFCC, Ibrahim Magu, to the Senate for confirmation twice – the first time was in December 2016 and subsequently in March 2017. On both occasions, the Senate refused to confirm Magu's appointment, asking the President to appoint someone else.
Different reactions have trailed the Senate's decision. A popular view among Nigerians is that “corruption is fighting back.” Meanwhile, various interpretations have been given to the EFCC Act and the 1999 Constitution by learned professors and Senior Advocates of Nigeria (SANs). The Vice-President, himself a professor and well respected SAN, recently gave voice to the decision of the Federal Government to retain Magu without confirmation by the Senate. The Vice President relied on the powers of the President to make such appointments under Section 171 of the Constitution.

Following the recent mind-boggling recoveries of stashed funds by the EFCC, thanks to the whistleblower policy, there seems to be some vindication to the supposition that the Senate rejected Magu because he is doing a good job. Whichever side of the debate one falls into, it is important to note that this issue goes beyond the capacity and integrity of Ibrahim Magu. There is actually a larger issue, which is to determine whether the executive is abusing its powers by refusing to be checked by the legislature.

First, let's take a look at the constitutional provision that has 'suddenly' done away with the need to confirm the appointment of the Chairman of the EFCC by the Senate after fourteen years of the agency's existence. Section 171 of the 1999 Constitution provides that: “(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 an Extra-Ministerial Department of the Government of the Federation howsoever designated; and (e) any office on the personal staff of the President.”

Those who argue in favour of the decision of the government to retain Magu despite the Senate's rejection posit that the EFCC is an extra-ministerial department of the government and thus the provision of the EFCC Act requiring confirmation of the appointment of the Chairman by the Senate is unconstitutional, null and void.

Suffice to say this piece isn't another opinion about the interpretation of Section 2(3) of the EFCC (Establishment) Act, or Section 171 of the Constitution. The tenets of our democracy and the principles of separation of powers make it the job of the judiciary to be the guardian of the constitution and give interpretation to the provisions of the Constitution. Hence, only the judiciary ought to make the determination on the constitutionality or otherwise of the EFCC Act. Pending such a determination in court, the executive cannot disregard a subsisting law or declare that law unconstitutional.

It is important to note that the EFCC Chairmanship is not the only appointment requiring confirmation by the Senate. By their enabling laws, the Chairman and members of the Independent Corrupt Practices and Other Related Offences Commission (ICPC), the Governor and Deputy Governors of the Central Bank of Nigeria, the Executive Chairman of the Federal Inland Revenue Service (FIRS), among others, also require confirmation of their appointment by the Senate. Can we say all these bodies also classify as “extra-ministerial” departments? If they are, appointment of their heads would not require ratification by the Senate, going by Section 171 of the Constitution.

Our constitution vests the powers of the Federal Republic of Nigeria in three separate organs of government. The legislative powers are vested in the National Assembly (NASS), consisting of the Senate and the House of Representatives. The executive powers are vested in the President to be exercised directly through him/her or through the officers in the public service. Judicial powers are vested in the courts.

The constitutional role of the executive arm of government is the execution and maintenance of the constitution, and the laws made by the legislative arm of government. It is, however, the courts that give an interpretation of those laws and apply them to specific cases or disputes. Therefore, the executive would execute or enforce the decisions of the courts because they are based on the interpretation of the constitution and various laws.

Part of the reason for the adoption of the doctrine of separation of powers is that it provides a system of checks and balances among the three organs of government. Absolute power corrupts the best of men; it is, therefore, essential to have one arm of government checking the excesses of the other arms to prevent abuse of power. Some would argue that it is in the spirit of the same doctrine that certain appointments to be made by the President are made subject to confirmation by the Senate. This is to ensure that the President does not handpick men or women who would simply dance to his tune.

Democracy is a representative form of government. Notwithstanding the imperfections in Nigeria's electoral system, members of the NASS are representatives of the different constituencies that make up the country. If the law requires their input in the appointment of a person to fill a public position, it necessarily becomes an affront to the electorate to have the executive retain such a person when the representatives have rejected him. After all, it is not all positions that require such confirmation – the Director General of the National Agency for Food and Drug Administration and Control (NAFDAC) and the Chairman of Nigerian Drug Law Enforcement Agency (NDLEA), for instance, do not require confirmation by the Senate.

The Senate has been called upon by some individuals to approach the courts to seek the interpretation of the EFCC provisions vis-à-vis Section 171 of the Constitution. Such pressure ought to be mounted on the executive that intends to do away with the provision of the EFCC (Establishment) Act requiring confirmation of the appointment by the Senate.

In any event, the executive arm of government in this administration seems to have a tendency to pick and choose when it can be checked by the judiciary. In the two years this administration has been in power, it has obeyed some court orders, while choosing to reject so many others.

For instance, the Nigerian Electricity Regulatory Commission (NERC) increased the electricity tariff despite an order of court directing it not to do so; the Department of State Services (DSS) has refused to release former National Security Adviser, Col. Sambo Dasuki (rtd) from detention despite orders of the court to do so. In this regard, the government has even ignored the judgment of the Economic Community of West African States (ECOWAS) court.

The government has also refused to release the leader of the Islamic Movement of Nigeria, Sheikh El- Zakzaky, and his wife, despite an order of court. These are sensitive cases, no doubt.

However, many others facing anti-corruption charges have been released on bail based on the conditions imposed by the court. Leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu, was also released by the government last month after he fulfilled the bail conditions set particularly in view of President Buhari's stance on the issue during the maiden presidential media chat sometime in December 2015. But it does not lie within the powers of the executive to decide which orders of court to obey and when to give private interpretations to laws. Such actions by the government constitute abuse of power.

As the arm of government empowered to enforce laws, it is difficult to truly check the excesses of an executive arm of government determined to rule on its own terms. The legislative and judicial arms of government have the responsibility to find ways to check what is fast becoming executive anarchy.

Even if the presidency finds the competence and integrity of Ibrahim Magu unimpeachable, it is doubtful that the country has sunk to such an abysmal state that there is no other person the President can appoint to lead his fight against corruption. The point at issue is that it is unacceptable to be selective in the adherence to the rule of law.