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Lawyers fault Osinbajo on appointment of EFCC chairman 

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Nigeria’s Vice President Yemi Osinbajo

• Insist President Must Send Name To Senate
• Lawyer Sues NASS, AGF For EFCC Act

Lawyers have disagreed with Vice President Prof. Yemi Osinbajo on the appropriate constitutional steps for the appointment of a chairman of Economic and Financial Crimes Commission (EFCC), insisting that the presidency must seek the input of the Senate.

Prof. Osinbajo had escalated the submission of a Senior Advocate of Nigeria (SAN), Mr. Femi Falana, that the president should not have sent Ibrahim Magu’s nomination as acting chairman of EFCC to the Senate for confirmation.

He quoted Section 171 of the Constitution and argued that although the EFCC Act requires that EFCC chairman should be confirmed by the Senate, that part of Section 171 of the 1999 Constitution, as amended, which is superior to the Act, does not order such confirmation.

The position of the Vice President therefore raised a fresh puzzle to the battle between the Executive and the Legislature over the appointment and confirmation of Magu as chairman, particularly whether the EFCC Act is not inferior to the Constitution.

Lawyers who spoke to The Guardian independently, held that before the acting chairman of the commission, Ibrahim Magu can assume office, he must get the approval of the Senate as provided in the EFCC Act.

Stressing that it would be legally wrong for an EFCC chairman to be appointed without clearance, Human Rights activist and Senior Advocate of Nigeria, Mike Ozekhome said: “Section 171 of the 1999 dubiously touted by these intellectual revisionists, merely gives the President power to appoint persons to the offices therein specified.

“They include, SGF, Head of Service, Ambassadors/High Commissioners, Permanent Secretaries, Heads of MDAS and, personal staff of the President. The Executive Chairman of EFCC, created long after the promulgation of the 1999 Constitution, was never one of such offices.

“We therefore have to resort to Section 2(3) of the EFCC (Establishment) Act, 2004, which deals with this issue. It provides that: “the Chairman and members of the Commission, other than ex-officio members shall be appointed by the President subject to the confirmation of the Senate.”

Ozekhome maintained, “The above section is too clear to admit of any ambiguity,” insisting that the President cannot validly appoint the EFCC Executive Chairman without the express “confirmation of the Senate”.

“If the Senate refuses, as it has done, that ends Magu’s tenure. Heavens will not fall. He ceases to be in office in any capacity. “Acting” is not prescribed by, nor, envisaged by section 2(3) EFCC Act. “Acting” is not forever,” Osekhome declared.

Former executive secretary of the Nigerian Bar Association (NBA) Nimi Walson-Jack, argued that the Act setting up the EFCC specifies anyone nominated as chairman of the commission is subject to Senate confirmation.

He said: “The National Assembly has powers to make laws and in making those laws, it determines what is the structure of the organisation it is setting up. In some of these organisations, the National Assembly allows the executive to make nomination without confirmation, and in some instances considered weighty, they say the people should come for confirmation”

“Now you have a made a law and you have said the people should come for confirmation. If you follow some argument that EFCC is not listed in the constitution as an organisation that should go for conformation, then EFCC will not exist. That means that the National Assembly cannot establish a commission or agency not mentioned in the constitution.”

On his part, Lucius Nwosu (SAN) said the President is administratively bound to send the name of an EFCC chairmanship nominee to the Senate for confirmation, noting that though the rejection of the nominee might be seen as at act of bad faith, this does not behoove on the presidency to say so, as the lawmakers are representatives of the people and performing their constitutional function.

“In administrative law, where a man has a discretion to say either yes or no, if he exercises that discretion and says no, he has exercised it. You cannot say he has not exercised his dissection. Rightly or wrongly, his answer is no,” said Nwosu.

Constitutional lawyer and former Chairman of the Kaduna State branch of Nigerian Bar Association (NBA), Festus Okoye, said Magu must get the confirmation of the Senate for his nomination by the Presidency, in order to function in the Office according to law.

Okoye added: “If the EFCC Act contravenes the constitution as is being speculated, it is only a court of law that can make that determination. The law as it stands today is that the Chairman of EFCC must go through the confirmatory process of the Senate. The Presidency is in order in appointing an individual in an acting capacity, but the moment such an individual is rejected by the Senate such an individual can no longer be active in an acting capacity.”

A Lagos lawyer,  Ms Uju Okeke argued that the EFCC is not one of the Federal Executive bodies specifically mentioned and created in sections 153-169 (listed in third schedule) which appointment and removal is provided for in section 171 of the Constitution.

Her words: “It is worthy of note that these bodies are not exhaustive, giving room for creation of others as the need arises. Of course, the newly created ones will be in accordance with the establishing Act.

“EFCC came into being, pursuant to an Act of National Assembly in line with section 4 of the constitution. This amended Act of 2004 established the Commission. Section 1(1) of the Act provides that EFCC shall be constituted and function in accordance with the Act. Section 2 lists members of the Commission. Section 2(2) provides that only the chairman and secretary are in full time position. “Section 2(3) provides that chairman and members are to be appointed by the President subject to Senate’s confirmation. Section 3(1) provides that the chairman and members shall hold office for 4 years, maybe reappointed for another 4 years and no more.”

While stating that the position of ‘acting chairman’ is unknown to the EFCC Act, she said by refusing to abide by section 2(3) of EFCC Act tantamounts to the executive questioning the legitimacy of NASS to enact EFCC Act, which is indirectly questioning section 4 of the Constitution that gave the National Assembly its powers.

Similarly, Michael Ogunjobi, said the concept of separation of powers is the fulcrum of the Constitution of Nigeria and is indispensable in any discourse of the critical constitutional issue raised by Section 2(3) of the EFCC Act on whether the subjection of the President’s appointment of Magu to Senate confirmation is consistent with or is a derogation from Section 5(1)(a) of the Constitution vesting the executive power of the Federation in the President.

However, on a different note, Mr. Kunle Odufayo thinks that the issue of appointment of executive officers of government agencies has been well stated in the constitution about those that need to be referred to the Senate and those that need not.

“Therefore, the argument has been raised to rather seek confirmation of the EFCC Chairman by the President since he has the power under the constitution,” he said.

Also an Abuja based lawyer, Abubakar Sani, concurring with Odufayo, argued that he has decided to test the legality of such provision in EFCC Act at the courts, by filing an originating summons before a Federal High Court, Abuja seeking to invalidate section 2(3) of the EFCC Act 2004, which subjects the power of the President to appoint the Chairman of EFCC to confirmation by the Senate.



12 Comments
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  • guyphiri

    The vice president and professor of law simply showed his ignorance, pettiness and bias in these matters. Quickly describing as ‘pocket book’ any lawyers that would disagree with him, to forestall any such criticism. Who’s got schooled now professor? Disappointing…

    • Omooba A

      Does Professor of Law make him a constitutional lawyer? You could have raised that question instead of labeling him ignorance and bias. As a lawyer he is more versed than you in law and for you, a layman in everything, to call him ignorance is absurd. Even the supreme court are not always unanimous in their deliberation; does that mean that the judges that did not follow the majority are ignorance? You should put your thinking cap on when writing; don’t write for writing sake.

      • guyphiri

        I stand by my statement. There are issues in law that are borderline, and which can be excused should lawyers have different views. This was clear. The EFCC Act stipulates the EFCC chairman be confirmed by Senate. The Constitution NEVER says the EFCC chairman shouldn’t be confirmed by Senate, rather states those positions that MUST be confirmed regardless of what any other Acts would suggest. So in stating that the EFCC chairman be cleared by Senate, the act doesn’t go against the Constitution in any way. Other reasons are as stated in the article by notable lawyers. All these are very, but the professor chose the path of ignorance, pettiness and bias.
        Also check your tenses etc before posting comments.

        • Omooba A

          Here we go again. Your contribution in the law discussion was repeating other people’s comments now you want to dabble into English language? You should keep your day job, that’s if you have one, instead of your jack of no trade and master of none attitude. The constitution was written to be interpreted and as stated above the Supreme court judges do not always deliberate unanimously on the same topic of law. If the SC judges, the highest law of the land, are not always unanimous why should lawyers? Wouldn’t that make the law boring?

          • guyphiri

            Have you ever heard of what is called ‘open-and-shut case’? Anyway you probably are pseudo-intellectual.

          • Omooba A

            I don’t believe that you ever heard it said that ‘the jury is still out’ in a case. A pseudo-intellectual with his own mind and contribution to the topic at hand is far better than a minion (follow-follow) with pinhead brain that plagiarized others to make a point. I must be getting out of your comfort zone of intellectual reasoning and will not be responding to your future repetitive diatribe – moving on.

  • vincentumenyiora

    I mean when senior statesmen cannot face the facts and provisions of the Constitution and they become hoodwinked or by cajolery take sides and you people are talkin about corruption in Nigeria! Why not start or resolve to do the right thing as you say in your change mantra? I’ll opt, let the CHIEF JUDGE OF NIGERIA INTERPRET THE LAW OR THE PROVISIONS in both the Constitution Sec. 89; i71 and Section 2(3) of the EFCC Act and let us know what is happening and more important let the Presidency tell Nigerians why it must be Ibrahim Magu that can do the job for Nigeria! We are told that the Vice President apart from being a Professor that he is also a Pastor – they should let the Court interpret the provisions; the Change must be seen to begin with You so that it’ll trickle down the ladder and not with ‘Me’ alone!!

  • Kekedu

    The constitution is supreme. Period.

  • Deji Fadina

    Why can’t the Senate go to court?
    When the EFCC was created nobody knew that a huge section of the Senate would be bursting at the seams with the worms of filth and corruption,
    In this situation created by the Senate, it is difficult to talk glibly of the respect for the an act that buries the nation.
    Of course, there is the argument too that the Executive is not clean either.
    So, let the aggrieved go to court.

  • Akinbode Kolawole Arkbo

    Am always said dis and it happens and i will continue say it dat it’s just short of a time dis yeye leaders will be stones by masses, u can see it’s now happened it happened in Niger state recently and it happened in kastina state yesterday masses nearly kill senators and honourable members if is not security agents and dey pick race it could ve worst 4 them, watch out it will circulate, Bcos dis leaders calling Senate’s snd

    • Akinbode Kolawole Arkbo

      Called Senate’s and lawyer’s are not fighting for us if not their selfish intrest, may God disgrace them very soon expecially 4 dis magu issues as EFCC chairman, God Bless good Nigeria not bad one thank u.