The high court judgment regarding the confirmation of Ibrahim Magu as chairman of the Economic and Financial Crimes Commission (EFCC) by the senate seems to have raised more questions than answers.
What now becomes of Magu? Is it against the law for him to continue in that position? How long can he continue to function in acting capacity?
John Tsoho, a judge at the federal capital territory (FCT) high court, held that since the senate has the power to confirm the chairman of the commission appointed by the president, that also confers on it the power to reject such appointment if it deems fit.
Oluwatosin Ojaomo, the plaintiff, had filed a motion seeking the court’s declaration that the senate did not have the statutory power to reject the appointment of Magu by President Muhammadu Buhari, “in accordance with provisions of the EFCC Act, 2004”.
- The EFCC Act, 2004. section 2(3) provides thus: “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 of the senate.”
But the court dismissed the motion on the grounds that the senate is not a “rubber stamp” of the president.
While some legal experts who spoke to TheCable believe the EFCC acting chairman should vacate the office following the judgment, others are of the opinion that his stay in office does not violate the constitution.
Femi Falana, lawyer and rights activist, said the high court judgment did not imply that Magu should vacate office.
According to him, the court was only concerned with the confirmation of Magu’s appointment by the senate and had dismissed the prayer brought forward to it “for want of locus standings”.
“The court did not order the removal of Mr. Magu as EFCC acting chairman, it struck out the case of the plaintiff for want of locus standings,” he said.
“However, the court held the senate was vested with the power to confirm or reject the nominee of the president for the office of the executive chairman of the EFCC by virtue of section 2 of the EFCC act.
“But the judgment did not declare the office of the acting chairman of EFCC illegal!”
Inibehe Effiong, a Lagos-based lawyer, said while the court was right in its judgment, his functioning in the acting capacity has not gone against the provisions of the law.
He added that the question is supposed to be, “for how long should Magu continue in that capacity?”
“The issue of being in the acting capacity is provided for in the Interpretation Act. Under the act, the president has the right to make acting appointments, which was what the president did.
“The question is, how long can he last in acting capacity? He should not exceed the statutory tenure of the substantive appointment. Otherwise he is no longer in acting capacity.”
His views were supported by Abimbola Ojenike, also a lawyer, who said nothing affects the appointment of Magu in acting capacity.
According to him, “The president appointed him in acting capacity and he is still acting in that capacity. It will only be unconstitutional if the president makes it a substantive chairman but that is not the case.
“So Magu’s position as acting chairman is not against the constitution.”
But Oka Anthony, a lawyer based in Abuja, disagreed with him.
He was of the opinion that Magu’s position became vacant the moment the senate refused to confirm him.
He argued that there is no difference between the position of acting chairman and that of substantive chairman.
“If the president sent a list of ministers to the senate and the senate refuses to confirm any of the ministers, can he stay in office?” he asked.
“Once there is a provision in the law giving the senate the power to confirm, that also contains the power to refuse to confirm. And once the senate refuses to confirm, that minute that they refused to confirm, anything like acting automatically becomes illegal. It does not have to wait for 24 hours.
“So once there is a refusal to confirm, the person cannot be acting, because acting means performing the roles of the person in that position.”
Solafunmi Olaoye, a lawyer practising in Abuja, said even though Magu’s appointment was legally done from the onset, the section 2(3) of the EFCC act in question contradicts the provision of the 1999 constitution.
He said he expects the federal government to appeal the judgment, adding: “His appointment does not require going through the senate.
“The EFCC constitution which formed the basis of that judgment contradicts the section of the 1999 constitution as amended. So in view of that provision, that EFCC act that subjects the ratification of his appointment by the national assembly is null.
“That was what I had expected the plaintiff to argue. His appointment does not require going through the senate.”
On his part, Patrick Negedu, who is in the legal team of the Kogi state government, said the court’s judgment is in order and that the argument should be whether the constitution provides for an acting chairman of the EFCC.
He also said since the senate cannot confirm Magu in his capacity as acting chairman of the commission, they can also not remove him.
“If the court rules that the senate can actually reject Magu’s appointment, then what is the position of Magu even before the confirmation? How long can a person act in within the provisions of the law?” he asked.
“The president has the power to appoint someone in acting capacity. But the duration to which the person can act in acting capacity has not been indicated by law.
“So, since they cannot confirm him as it is now, they can also not remove him. So he remains the acting chairman of the commission and that is not illegal.”
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