Before lawyers ruin Magu and democracy

In this season of too many inclusive matters, managing priorities becomes an urgent matter of public interest. One of the priorities that those in power should consider immediately is the unfinished business of confirmation of Ibrahim Magu, the Acting Chairman of Economic and Financial Crimes Commission (EFCC). I believe the business should be marked as a weightier matter of the law that should be concluded before other urgent national matters. The reasons for this are not too far to seek. First, the ruling party big men at both the executive and legislative arms of government appear unable to know what they are doing about their covenant with the people to fight corruption as they have pledged. Second, some prominent Nigerian lawyers appear bent on serving the gods of their bellies rather than serving public interest on the stalled Magu’s case. Besides, there is an urgent need to ask the Nigerian Bar Association (NBA) members and indeed all the Law faculties in Nigerian universities why they have kept quiet while some influential lawyers appear to be “lowering the bar” (of confirmation) and impairing the Majesty of the Law and Democracy at the same time. Have the Law teachers and members of the Nigerian Bar Association not read what Albert Einstein said long ago that, ,“The world will not be destroyed by those who do evil, but by those who watch them without doing anything”?

And here is the thing, why have the once influential NBA and the Law teachers not been raising the bar of discussion in the media on the many controversial legal issues raised by the stalled confirmation of Ibrahim Magu as EFCC boss? The president’s men can’t agree on the suitability of Magu. Some who are even outside the powerhouse said it is either Magu or nobody. Some others inside including the head of the secret service wrote twice to the Senate insisting that Magu is not a fit and proper person for the job. But the president and the vice president, a professor of law, are saying that Magu who had been rejected twice by the Senate, should continue to work after two years without confirmation. The acting president said he relied on the advice of a private lawyer after the senate rejection that Section 171 of the Constitution empowers the president to keep Magu without Senate confirmation. And an advisory body on anti-corruption headed by a professor of law agrees with a private lawyer’s opinion in a newspaper that Magu would not require senate confirmation, after all. But the Senate that had confirmed three successors in office to Magu since 2002 have been drawing attention to the hypocrisy of the presidency that continues to send presidential nominees to it. As Fela Anikulapo would have aptly put it, in Nigeria’s presidency of so many “actors”, “confusion breaks bone”. Too many “actors” indeed: an acting president is managing an acting secretary to the government of the federation (SGF). And the two powerful “actors” in the presidency are managing the art of confirming acting chairman of the EFCC (since 2015).

And so before more fastidious lawyers go to court on the status of the indispensable Magu, in the circumstances, we need to challenge the NBA and Law teachers to organize colloquia that can deepen our understanding of why the senate should not be needed for any presidential appointments, thanks to the all-purpose section 171 of the 1999 constitution. They need to tell us about sanctity of the grundnorm’s awesome Section 171 of the 1999 Constitution, which allows the appointment of heads of extra-ministerial agencies without the Senate’s approval.

We the people need to know how the organic law’s Section 171, which gives the President power to appoint and dismiss persons to the offices therein specified, i.e, Secretary to the Government of the Federation, Head of Service, Ambassadors/High Commissioners, Permanent Secretaries, heads of extra-ministerial departments and, personal staff of the President, nullifies EFCC’s enabling law.

Certainly, in this age that knowledge governs, we should understand beyond the arguments of only lawyers Femi Falana, Mike Ozekhome and Itse Sagay why the Chairman of the EFCC, created two years after the promulgation of the 1999 Constitution, is one of the offices the now ambiguous section deals with. The lawyers’ views do not have jurisprudential significance yet since they are not a court’s ruling. We should know if the EFCC is an extra-ministerial department, (EMD). Can Section 171 of the 1999 Constitution override Section 2 (3) of the EFCC Act so simply? What does the interpretation section of the Constitution say about this seemingly‘equivocal’ Section 171 of the 1999 constitution, which lawyers have used to confuse Nigeria’s presidency that has been threatening to go to court since March this year? More questions for Law teachers and NBA members before the president’s men go to court. Does a technical term, “extra-ministerial department” cover all agencies of governments and statutory agencies or Corporations and Commissions established by law?

The EFCC is supervised by the Attorney General of the Federation because of the prosecutorial powers under Section 174 of the 1999 Constitution. Does that make the EFCC a ministerial or extra-ministerial department or a department in the office of the Attorney-General the same way we have the office of the DPP or Director Civil Litigation? The Ministry of Justice, among others, is given equal membership of the Board of the EFCC. And so, does Section 2(3) of the EFCC Act in any way contravene section 171 of the Constitution? Since Section 171(2) gives the president wider powers according to our omniscient lawyers, why did we need enabling Laws to establish commissions and agencies such as National Assembly Service Commissions (NASC), Independent Corrupt Practices and other Related Matters Commission (ICPC) etc? Can the President simply appoint the Governor of Central Bank of Nigeria without complying with S. 8(1) of the CBN Act, which requires Senate confirmation?
These are part of the controversial issues we the unlearned members of the public need to learn from if the Law teachers all over the place and the sleepy NBA can organize symposia to enrich legal education before the president’s men arrive at the Supreme Court. Sorry, more questions to enrich legal literature:
Since Section 11 of the Interpretation Act creates the office of an “Acting Chairman”, as some have argued, what happens to the appointment automatically the moment the Senate refuses to give the legally mandated confirmation that the court has not overruled?

These questions are pertinent now so that we can see more clearly how the ruling party, which controls majority members in the bi-cameral legislature and has so many lawyers even in its government’s cabinet can’t help itself out of a simple presidential appointment that the rule of law can easily resolve. In other developed democracies, the law rules the man, to build strong institutions that not even a president can subvert. But in Nigeria, man helped by a few lawyers, rules, in place of the law, ironically. This is why our democracy is daily weakened by poor governance system, thanks to lawyers who always advise them to head for the court just to interpret even unequivocal portions of the organic and enabling laws. In Nigeria, even presidential mandate is not complete until the Supreme Court rules that primary election and election proper were validly conducted, thanks to Nigerian lawyers who always counsel losers to go to court even for frivolous reasons.

In most democracies, only the law rules and no matter your position and height, the law is above you. This gave rise to this famous quote from a significant British jurist, Lord Alfred Thompson Denning, who once observed, “Be ye ever so high, the law is above you”.

I think we should tell our people who are lawyers and are teaching Law (practice) that the development of the country should come first before personal ego and conspiracy of silence that pervades the land. Nigeria is disappearing before out very eyes. An arrogant ruling party and its government officials are using a few lawyers to make nonsense of our constitution because they want only one man they want confirmed at all cost in a federation of 36 states and the NBA and all the law teachers cannot advise massively through the media so that they can move fast? Should we leave everything to God here? Why can’t elders ask the president and his men why they nominated Magu twice and allowed another president’s man, the director-general of the Department of State Services (DSS) to write a damaging report on the same Magu twice? It is possible to blast the National Assembly today because the presiding officers and members have massive perception challenge. But that institution of democracy should not be ruined because of confirmation of an officer of the law.

The rule of law is so important to survival of democracy and the country. And it will be unfortunate if lawyers are the ones to destroy the majesty of the law and democracy.

All told, in a country almost ruined by official corruption that is not being prevented at the moment, there should be remarkable commitment to the Rule of Law to deal with the reproach called corruption. Just as the late Chief Gani Fawehinmi did. But if the law can’t easily rule the process of confirming the Chairman of an anti-graft agency, it is a national tragedy.

The rule of law in law literature is traditionally contrasted to “the rule of men.” The contrast captures the difference between societies in which the awesome power of governments to send men and women with weapons to order their people about is governed by general rules, laid down in advance, and enforceable against government officials who would abuse their power, and societies in which government violence is deployed at the whim of powerful officials without such constraints.
And the rule of law requires that public officials be not endowed with the open-ended authorization to exercise force and violence against ordinary people in accordance with their mere wills.

Democracy itself is closely intertwined with the rule of law: the people rule only through the laws of their democratically accountable representatives, and can only select their leaders when the laws governing the political system are respected. To defend the rule of law is to defend our constitutional democracy. That is what Nigerian very many educated lawyers and law teachers should get the rulers and the ruled to internalize instead of guiding the powers that be to seek interpretation of a law just to confirm the chairman of an anti-corruption agency. I hope I will not be forced to find out soon why William Shakespeare once advised kingmakers: “The first thing we do, let’s kill all the lawyers…”