“A case study of Senate’s disapproval of Mr. Ibrahim Magu as the Substantive Chairman of the Economic and Financial Crimes Commission.”
By: Oyeyemi Oyeleye Esq.
The 15th day of May 2017 was a day that cannot be hurriedly forgotten by citizens of Nigeria who are assiduously working, praying and hoping for a new Nigeria, a New Nigeria devoid of all form of corrupt practices and financial crimes.
The significance of that day was the optimistic expectation of an average Nigerian who hold a firm believe that Mr. Ibrahim Magu has done a fantastic and impressive job upon his appointment as the Acting Chairman of the Economic and Financial Crimes Commission (EFCC) and as such would be elevated without any hesitation from that seat to the esteemed seat of a Substantive Chairman of the EFCC, having been invited by the Nigerian Senate to appear for his confirmation screening on that date.
The confirmation screening was duly conducted, the outcome of which was shocking to the majority of the populace who are already thirsty for a corruption free Nigeria promised by Mr. Ibrahim Magu whose screening result rendered unfit and unsuitable for the said office owing solely to some skeletons allegedly found in his closet.
However, since the Senate’s disapproval of Mr. Magu as the substantive chairman of the commission, the declaration seems to have been rendered nugatory as Mr. Magu is still the one piloting the affairs of the commission, and no other name has been forwarded by the President of the Country to the Senate for confirmation as the Chairman of the Commission.
Many Legal scholars including the Acting President of Nigeria, Prof Yemi Osibanjo have exhausted their ink of erudition on the proprietary and/or necessity of seeking the Senate’s confirmation in the appointment process of the Chairman of the EFCC and have concluded that such confirmation of the Senate is needless and can be dispensed with relying on Section 171 of the 1999 Constitution of the Federal Republic of Nigeria.
By this article, the writer shall juxtapose the provision of Section 171 of the 1999 Constitution of the Federal Republic of Nigeria with Section 2(3) of the Economic and Financial Crimes Commission Act and give his opinion on whether or not the Senate’s confirmation is required for there to be a lawful appointment into the office of the Chairman of the EFCC.
A good starting point is to have recourse to the legislation that birthed the Economic and Financial Crimes Commission (EFCC), a national institution charged with the responsibility of co-coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.
Section 2 (3) of the EFCC Act 2004 provides expressly the manner of appointment of the Chairman and other members of the EFCC, the said section is hereunder reproduced:
“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 the confirmation of the Senate.
The above reproduced section of the law is clear enough to the effect that there cannot be an appointment into the office of the chairman or any other office of the commission without the approval of the Nigerian Senate. The expression of the word “shall” used in that section of the law has thus made the consent of the Senate a sine-qua-non requirement, without which any appointment so made will be regarded unconstitutional and illegitimate.
Per Omoleye J.C.A in the case of NATIONAL ASSEMBLY V. C.C.I CO. LTD (2008) 5NWLR (Pt. 1081) 519 at P.540 paras. D-G eruditely held:
“The word “Shall” is a word of command and it denotes direction, compulsion, a mandate, an obligation and gives no room for discretion. In whatever way it was used, whether in a mandatory of directory sense, there has to be fulfillment of such mandate or directive. The word shall makes the provision of a statute mandatory and pre-emptory. (TANKO V. CALEB (1999) 8 NWLR (Pt.616) 606; AMADI V, N.N.P.C (2000) 10NWLR (PT.674) 76).
A combined reading of Section 2(3) of the EFCC ACT reproduced above and the holding of Per Omoleye JCA in NASS V. CCI CO. LTD supra shows that it is the approval/confirmation of the Senate that can give life to any such appointment made by the president pursuant to Section 2(3) of the Act.
It is however unimaginably regrettable to hear and watch some senior learned members of the Society put up a baseless, erroneous, and misleading argument that the confirmation of the Senate required by Section 2(3) of the EFCC Act with is irrelevant and can be dispensed with, predicating their unmeritorious arguments on the provision of Section 171 of the 1999 Constitution of the Federal Republic of Nigeria as amended and relying in all probability on paragraph (d), subsection (2) of that section.. For the sake of clarity and completeness, there is a compelling need to reproduce in extenso the said section 171.
- 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.
- 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
Flowing from the above constitutional provision, with more arrays of light focused on paragraphs (a) to (d) of subsection (2) , it is safe to posit that the above provision does not cover the EFCC as there was no where whatsoever where the EFCC was mentioned. Suffice to say that the EFCC cannot be subjected to the binding effect of the said section.
To think or say otherwise would be tantamount to importing extraneous matter into the constitution.
It is an elementary rule of statutory interpretation and application that the express mention of one thing in a statutory provision is an implied exclusion of those not mentioned, better expressed in the Latinism of Expressio Unius Est Exclusio Alterius, see AZUBUIKE & ANOR V. GOVERNMENT OF ENUGU STATE & ANOR (2013) LPELR -20381 (CA).
The EFCC not to have been listed expressly in subsection (2) cannot be subjected to such provision.
Further, it will be an erroneous and blatant misconception of law to regard the EFCC as an Extra-Ministerial Department (EMD) of the Government as attempted by some lawyers. The EFCC as opposed to an EMD is a creation of the statute which operation and activities is regulated by the same statute that created it.
The mere fact that EFCC answers to the Attorney General of Federation (AGF) in respect to prosecution of criminal matters does not in any way transform the EFCC to a department or office in the Ministry of Justice. The AGF only enjoys this pre-eminence by virtue of the powers donated to him by section 174 of the Constitution as the Chief Law Officer of the state.
The EFCC cannot by any stretch of imagination be described as an extra ministerial department under the office of the A.G.F like the office of the Director of Public Prosecutions or Director of Civil Litigation. To call the EFCC an extra-ministerial department will mean same for every agency empowered to investigate and prosecute crimes. No wonder nowhere in the Act will one find any reference to the EFCC as a department of the Ministry of Justice.
Let’s take for instance the relationship between the Ministry of Finance and the Central Bank of Nigeria (CBN). Section 8 of the CBN Act as amended is in pari material with Section 2(3) of the EFCC Act. That relationship between the Ministry of Finance and the CBN does not in any way make the latter an extra-ministerial department of the former. The relationship between the EFCC and the Ministry of Justice is no more intimate than the relationship between the CBN and the Ministry of Finance.
It is no coincidence that Section 171(2) (d) refers to Permanent Secretaries and Heads of Extra-Ministerial Departments in the same subsection, since ministries and extra ministerial departments are administrative, rather than statutory creations.
It will be farcical to suggest that Section 171 of the Constitution has over-ridden Section 2(3) of the EFCC Act, as the reference in section 171 is to some certain class of people, expressly outlined.
The requirement of the Senate’s confirmation for the appointment of the Chairman of the EFCC and other agencies is one entrenched in the principle of checks and balances in a presidential system of government that we operate. The Senate may decide not to confirm all appointments sent by the president as the senate was not established to be a rubber stamp of the Executive. And the fact that the consent is withheld either in good or bad faith should not be a reason to contend that the provisions in Acts of the National Assembly i.e The EFCC Act, signed by the president requiring the president to obtain consent of the Senate are unconstitutional.
May I now draw this to a close by opining that the provisions of Section 171 of the Constitution does not bind the EFCC and as such cannot override the provision of Section 2(3) of the EFCC Act that makes Senate’s confirmation a condition precedent in the process of appointing a person as the chairman of the EFCC, any appointment made without such confirmation is illegitimate, unconstitutional, unlawful and of no effect howsoever. See Section 2(3) of the EFCC Act.
I further opine that, it is grossly inappropriate to have an appointee who had been rejected and declared unfit for a position by the Senate to continue acting in that position in whatever capacity.
Mr. Magu’s continual occupation of the office of the Chairman of the EFCC even in acting capacity is inapt and does not stand to good reasoning.
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A Report Of The Judgement Of The 16 Divisions Of The Court Of Appeal In Nigeria