Femi Falana

AKEEM NAFIU writes that lawyers could not agree at the weekend with presidency on the interpretation of Section 171 of the Constitution which empowers President Muhammadu Buhari to make appointment of principal officers other than his staff without recourse to the National Assembly

Barely a week after Vice President Yemi Osinbajo echoed a Senior Advocate of Nigeria and activist lawyer, Mr. Femi Falana that Senate’s rejected nominee for the czar of the anti-graft agency, the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu remains the choice of President Muhammadu Buhari notwithstanding senate’s opposition, lawyers yesterday kicked against Osinbajo’s view on the matter.

Osinbajo and Falana believe President Buhari has powers under Section 171 of the Constitution to confirm Magu as the substantive chairman of the anti-graft agency without reverting to senate for any input. Falana had said that President Buhari was empowered by the Constitution to appoint the embattled Acting Chairman of the EFCC without recourse to the Senate.

The Senior Advocate said Section 171 of the Constitution had empowered Mr. President to make appointments without any input from the National Assembly.He said: “It will be unfortunate; a tragedy to the country, every public officer has his or her power defined by the Constitution.

The moment you go outside that you have engaged in impunity. Section 171 of the Constitution has vested the power in the President to appoint any person to that office or act in that office and the duration is not specified.

“Of all the positions listed there, positions to be occupied by public officers without any reference to the Senate – Secretary to the Government of the Federation, Permanent Secretaries, Head of Service and Heads of Extra- Ministerial Departments like the EFCC and the ICPC. “With profound respect, in sending the letter to the Senate for confirmation, the President relied on Section 2 (3) of the EFCC Act but that Section has to be read subject to the Constitution. “So if you do that, Section 171 takes precedence over Section 2 (3) of the EFCC Act. So does the President need to ask for confirmation? No.

“Unfortunately, the executive is not exposed to sound legal advice on this matter, with profound respect. In that Section 171 (2), you also have position of ambassadors and heads of our foreign missions.

But that subsection says they shall be confirmed by the senate.” Falana’s however got an ally in the executive as Vice-President Osinbajo during an interview session at the villa revealed that Magu was still in his good book and that of the president despite his rejection by the Senate.

He said: “I fully agree with Falana that there was no need in the first place to have presented Mr. Magu for confirmation.” The Vice President said although the EFCC Act required that an EFCC chairman be confirmed by the Senate, part of Section 171 of the 1999 Constitution, as amended, which was superior to the Act never mandated Senate’s confirmation. Section 171 of the Constitution states that; “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.

What Section 171 says Section 171 (2) says “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 any Extra- Ministerial Department of the Government of the Federation howsoever designated and

(e) Any office on the personal staff of the President. Section 171 (3) states that “an appointment to the office of the Head of the Civil Service of the Federation shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of the Federation or of a State.

While Section 171(4) indicates that “an appointment to the office of Ambassador, High Commissioner or other Principal Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate. Section 171(5) also states that “in exercising his powers of appointment under this section, the President shall have regard to the federal character of Nigeria and the need to promote national unity.

However, Section 171(6) states that “any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the President ceases to hold office.”

Already, Falana and the Presidency’s interpretation of Section 171 especially on Magu may have sparked of fresh ‘war’ between the Senate and the presidency as the Upper Legislative Chamber had sought judicial interpretation of the contentious section.

Although it said it would officially make its position known at an appropriate time, Senate had concluded plans to seek judicial interpretation of the constitutional provisions on the appointments of principal officers into government offices by the President in accordance with Section 171.

A senate’s source said “not all lawmakers in the upper house of legislature are happy with the proposed move to place embargo on President Buhari’s nominations as Senate believes that only a judicial interpretation of President Buhari’s powers can stop the conflict over Magu’s retention.

“Senate chose this line of action after Vice President Yemi Osinbajo, a Professor of law, backed human rights lawyer Femi Falana (SAN) that Section 171 of the Constitution empowers the President to make some appointments without the approval of the National Assembly.

“There is going to be a constitutional crisis in Nigeria because the Senate is now at a crossroads on what to do with the nominations made by the President for which he is seeking the confirmation by the Senate.

“Going by what Osinbajo said on Magu, it means that the nation’s presidents from 1999, who sent nominations to the Senate for confirmation, had all breached the Constitution. Even Buhari, who has been sending nominations to the Senate, was not properly advised.

“They may not be considered, including those of the CBN, NERC and others just sent to the Senate, because of the claims made by the Vice-President. He spoke as if he was speaking the minds of the president. “They (Presidency) should proceed to court to seek endorsement for their position. It is their business to go to the court, not the Senate’s. The Vice President has already stalled the nomination and confirmation processes by his unguarded statements.

“He somehow agreed with Falana that there is no need for legislative confirmation for the appointments. With the Section 171 claim by the Vice-President, the Senate is now at a crossroads on whether to go on with the confirmation of appointments or adopt the new claim by the Presidency.

“The National Assembly follows established laws, which have been used for all dealings with the other arms of government. If they now have a contrary view, they should go to court.” Lawyers speak Speaking with New Telegraph Law, lawyers are of the view that despite the fact that the president has powers to make unilateral appointments, the offices referred to in Sections 171 of the Constitution as requiring confirmation by the Senate, is not exhaustive. According to them, the legislature had the prerogative to expound the type of offices for which confirmation would be necessary.

For instance, a Senior Advocate of Nigeria (SAN), Mr. Norrison Ibinabo Quakers, believes that the only appointments Mr. President would make without recourse to the National Assembly are those of his principal staff.

He said: “As far as the Constitution is concerned, the only persons the president is allowed to keep without subjecting them to what is called confirmation hearing are his principal staff. Section 171 of the Constitution is very clear on this. It is only those who are his personal staff.

“Every other person, under Section 154, categories of persons, under the Second Schedule of office of government is referred to as executive bodies of the federal government, such persons to head such institutions and involve in such organisations should be subjected to Senate confirmation hearing. So nothing is automatic.

“A beauty of all of this is that we are operating constitutional democracy. Section 4 of our constitution vests legislative powers in the National Assembly and it clearly states that the National Assembly is saddled with the responsibility to pass laws for the peace, order and good government of the federation and the federating units.

“Now, if the Constitution has given that power to the National Assembly and the National Assembly comprising of the Senate and the House of Representatives collectively have come up with a law, the Section I referred to, that is the enabling Act, the Economic and Financial Crimes Commission Act, wherein in Section 2 (3) (4) says nominees of the president must be subjected to confirmation by the Senate and their term is four years so, that law has been passed.

“If there is a law that laid down a procedure to be followed, between you and I, if Mr. President has complied with the provision by subjecting his nominees to the Senate as required by law and the Senate has rejected the nominee, should he continue to keep that nominee? Would that not be seen as Constitutional violation?

“When the law says you have the right to appoint and anyone you appoint, in other words, the circle is incomplete upon the appointment, that the appointment must now be subjected to Senate confirmation.

You have taken that step of putting forward a name for Senate’s confirmation,it would have been a different ball game if you have not subjected the name to Senate confirmation, having subjected the name to Senate confirmation, you have complied with the provision and the Senate said no, we don’t want this person because of A, B, C should you continue to keep that person in office? “That is why I said we would have avoided all of this if prior to the confirmation hearing there is a lot of lobbying behind the scene so that we can avoid all of this.

Another Senior Advocate of Nigeria, Mallam Yusuf Olaolu Ali noted that the offices listed under Section 171 of the Constitution which required Senate’s confirmation was not exhaustive. He said: “Firstly, the offices referred to in Section 171 of the Constitution as requiring confirmation by the Senate is not exhaustive. It does not say that the legislature does not have the power to expound the type of offices for which confirmation would be necessary by the Senate.

“However, on the issue of confirmation involving the Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, for example, my position and take is simple. It’s in the exercise of that power, you would discover both in the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC) Acts and other laws that the Senate is required to confirm the head of those agencies.

“Therefore, I would explain it in a layman’s language especially in terms of the prevailing argument that even if the Senate refuses to confirm Magu, he can continue to function in office as acting chairman. Now, if we accept this view, we would not only be assaulting the spirit of the Constitution but even its letters.

“The essential question I often ask people is, if the president submits names of ministers to the Senate and the Senate rejects some of the nominees, can the president go ahead and appoint them as acting ministers? “And in recent experience, a list of ambassadors was sent to the Senate and there was a requirement that they must be confirmed. When the Senate rejected that list, did the president go ahead to allocate offices to those ambassadorial nominees or post them out of Nigeria?

“Hence, simple logic ought to inform us that what applies to that situation typically applies to the office of the EFCC chairman. Maybe, if Magu’s name was not sent at all and he is still acting, it would have been entirely different.

But having been submitted and rejected by the Senate, it simply creates some issues about compliance and adherence to the rule of law and democracy.” Chief Mike Ozekhome (SAN), said Section 171 of the Constitution merely provides for certain bureaucratic positions of government that were not created by statute, such as Extra – Ministerial Departments (EMDs). According to him, such EMDs are not like statutorily created bodies like the EFCC, NNPC, CBN, NAFDAC, FRSC, Prisons, Customs, etc.

“Such EMDs once enacted into an Act of the National Assembly, cease to be EMDs. They are governed solely by the provisions of the parent creating Act, and no more”, he said. Ozekhome went on: “There is no conflict whatsoever and howsoever between the clear provisions of Section 2(3) of the EFCC Act which insists that the president shall have powers to appoint its executive chairman subject to confirmation by the Senate, and Section 171 of the 1999 Constitution, which never envisaged an EFCC created 5 years later.

“For the avoidance of doubt, it is the EFCC Act, No. 1, LFN, 2004, and not Section 171 of the 1999 Constitution that created the EFCC and gave it life. Consequently, the origin, powers, composition, rules of engagement, practice and procedure, of the EFCC are governed solely by the EFCC Act, 2004, and not by Section 171 of the 1999 Constitution.

“This does not in any way make the Act superior to the Constitution. It simply means that the Constitution is inapplicable to the EFCC in the peculiar circumstances of this case.” Seyi Sowemimo (SAN) canvassed judicial interpretation of the prerogative of the president to unilaterally made appointments.

He said: “What Section 171 says is that the president can without reference to any other person make some appointments. However, I think it is advisable that the matter should be taken to court for interpretation. “I am sympathetic to the use of Section 171 of the Constitution to sustain the appointment of the EFCC chairman.

“Although, the EFCC Act is a latter legislation but this does not make it constitutional because there is a provision of the Constitution which says any legislation made before or after that is contrary to the Constitution will be unconstitutional and void. Besides, I don’t see any advantage of Senate’s confirmation.”

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