On Magu’s quandary, these are the salient questions

Following the Senate’s decision to decline the confirmation of Ibrahim Magu as EFCC Chairman, learned Senior Advocate of Nigeria, Femi Falana, has theorised that the Senate’s approval could in fact, be dispensed with. Vice President Yemi Osinbajo, a professor of Law and also Senior Advocate of Nigeria, has aligned himself with the argument.

The Learned Silk’s argument is premised on section 171 of the constitution, which says the following: (1) The president is empowered to make certain appointments; (2) the various appointments the President is entitled to make are – Secretary to the Federation, Head of the Civil Service, Diplomats, Permanent Secretaries of Government Parastatals, Heads of Extra-Ministerial Departments (such as the EFCC, the argument goes) and any office on the President’s personal staff; (3) that the Head of Civil Service can only be appointed from among the permanent secretaries; and (4) that the appointment of diplomats will have no effect until confirmed by the Senate.

Mr. Falana argues that because this section limits the express confirmation of the Senate to diplomats, the constitution has therefore said that the Senate’s confirmation is not required for Heads of EMDs like Magu. And while the EFCC Act expressly requires the Senate to confirm Magu, it is subordinate to the constitution and the constitution must therefore prevail to the extent of this inconsistency. The argument is therefore predicated on there being an inconsistency between the constitution and the EFCC Act. But is there really an inconsistency?

The argument appears to rely on the “expressio unius” rule of statutory interpretation – the rule that where something is expressly mentioned other things are excluded. In this instance, the Learned Silk’s contention is that the express mention of the Senate in relation to ambassadorial appointments only excludes EMDs. It is an attractive proposition but I would argue, with the greatest respect, that it is misconceived, for two reasons.

The first reason is that the primary rule of statutory interpretation is the literal rule – that words should be given their ordinary meanings unless doing so would lead to an absurd result. The ordinary meaning of section 171 (5) on its own, without any additions, is clear in relation to diplomatic appointments. It cannot be said to be clear in relation to the appointments that it has not mentioned. It is silent on the appointment of heads of EMDs and at the very worst, in my opinion, leaves a gap – or a ‘lacuna’ as lawyers like to say. The EFCC Act fills that lacuna with the provision requiring confirmation by the Senate.

The second reason is on the matter of the alleged inconsistency. Is it proper to impute an inconsistency when the EFCC Act does not go against a positive or active stipulation of the constitution? Typically, the constitutional debates about inconsistencies arise when an Act or Law of the legislature or an executive order goes against the constitution. For example, orders of the police purporting to make police approval mandatory before holding a rally have been held by the court to be inconsistent with the constitutional provisions guaranteeing the freedom of assembly. A law that seeks to punish offences will be held inconsistent with the constitutional provisions around fair trial. Where there is no explicit, positive provision being contravened, it is certainly not apparent that an inconsistency exists. If section 171 had explicitly said that the consent of the Senate was not required for the appointment of Heads of EMDs, it would have been a different proposition entirely.

Thirdly, one must be a little cautious about setting section 171 up as the be-all and end-all of the President’s powers of appointment. The section, for example, says nothing about the qualifications of the persons to be appointed as Head. Does this also mean that there is an inconsistency between the EFCC Act and the constitution, and that the President is free to appoint a shepherd with no other training as the Head of the EFCC? After all, if the section said who could be appointed as Head of the Civil Service and did not say who could be appointed as Head of an EMD, then surely anyone would qualify, given the argument of the Learned Senior Advocates?

Finally, and this is perhaps the weakest counter, but what exactly are Extra-Ministerial Departments? Does the constitution mean departments like Commissions of Enquiry or the Presidential Advisory Committee on Anti-Corruption? Is an agency created by an Act of the National Assembly an EMD? Eventually, should the federal government decide to go with Mr Falana’s suggestion, the Senate is likely to seek the intervention of the courts and these are the questions that will need answering.