EXCLUSIVE: Balogun Vs Magu & Ors: Salient Points In The Judgment In Respect Of Magu’s Acting Capacity As EFCC Boss

The Federal High Court presided over by Hon. Justice Ijeoma L. Ojukwu had ruled that the Ibrahim Magu, Acting Chairman of Economic and Financial Crimes Commission (EFCC) has outlived the provisions of the Law relating to his acting capacity. 

TheNigerialawyer(TNL), recalls that Justice Ojukwu delivered a judgment on 4th December, 2019, in a Suit No:, FHC/ABJ/CS/802/2017, instituted by Wale Balogun against the President of FRN, EFCC and EFCC Acting Chairman.

THE SALIENT POINTS OF THE ABOVE JUDGMENT. 

The sum of the plaintiff’s case was that the appointment of the Chairman of the Economic and Financial Crimes Commission (EFCC) is mandatorily subject to the confirmation of the Senate of the Federal Republic of Nigeria and that Ibrahim Magu having been rejected two times by the senate of the National Assembly of the Federal Republic of Nigeria, cannot continue to act and function as the acting Chairman of the Economic and Financial Crimes Commission for a period longer than the tenure of the substantive appointment. The plaintiff urged the court to “sack” Ibrahim Magu.

On the other hand, EFCC argued that the appointment of Ibrahim Magu is legal and in accordance with the law. That Ibrahim Magu is not subject to confirmation by the Senate being an extra-ministerial body under Section 171 of the Constitution of the Federal Republic of Nigeria 1999, and that it lies only in the power of the President “to hire and fire”. Moreover, that the confirmation by the Senate was only applicable for the position of Substantive Chairman, not Acting Chairman; therefore, Ibrahim Magu can validly continue as the Acting chairman of Economic and Financial Crimes Commission after rejection of his confirmation as the substantive chairman of the EFCC by the National Assembly.

They also added that Ibrahim Magu was not rejected as he was not given fair hearing at the determination of his rejection.

The Court in resolving the issues, held that
“Section 171 of the Constitution does not include the EFCC as part of the offices to which the provision applies, being that the EFCC was established post the 1999 Constitution, in 2004. Moreover, the Constitution does not define an Extra Ministerial body from which such inference or assumption can be made. Therefore, the invitation to consider the EFCC an extra-ministerial body as a result of its structure and composition, and the further invitation to hold that the appointment of the Chairman is not subject to Senate confirmation is short-circuited by the clear provisions of section 2 (3) of the EFCC Act as stated above. The deduction here ultimately situates the EFCC as a statutory body.”

The court further held that the word ‘shall’ as used in Section 2(3) is meant to impel the President to subject the appointment to the Senate for confirmation. It is not a mere comity, nor is it discretionary, it is compulsory. The idea of Senate confirmation is to ensure that checks and balances are properly carried out in our system of democracy. To make this arm of the provision discretionary is to subordinate the rule of law to a position subject to a person’s whims.

The court went further to state the importance of involving a third party in the appointment of the position of the EFCC chairman being a “body” that represents the interest of the public is to act as a check and avoid abuse of power.
The Senate acts as representatives of different constituencies which as a whole represents the interest of the general public. Therefore, if the Senate makes a decision in regards to the rejection of Ibrahim Magu then it will be implied that the public has spoken. This is because public interest is very paramount in the position and function of the Chairman of the EFCC. Public interest by virtue of the provisions of the EFCC Act is one of the conditions by which a member of the commission may be removed including the Chairman or Acting Chairman.

But because Ibrahim Magu has not been appointed as the substantive Chairman, the focus is on the appointing authority who appointed him as Acting Chairman. As there is a lacuna in the law as it pertains to the tenure of the acting capacity, the court had recourse to Section 11 of the Interpretation Act.

The court held that
“In law, when a person is said to be acting in a position, it may ‘mean that the position has not yet been formally created and the person is only occupying the position temporarily to ensure continuity, or the person does not have a substantive mandate. It can also mean that the person is temporarily filling and executing the role of a position, in case the person meant to execute the role is incompetent or incapacitated, or taking on duties temporarily, especially as a substitute for another”

In reference to Section 11 (1)(c) of the Interpretation Act, 2004 the court held thus;
“Whenever the phrase “subject to” is used in a statute, the intention, purpose and legal effect is to make the provisions of the section inferior, dependent on, or limited and restricted in application to the section to which they are made subject to. In other words, the provision of the latter section shall govern, control and prevail over the provision of the section made subject to it. It renders the provision of the subject section subservient, liable, subordinate and inferior to the provisions of the other enactment’

Section 2(3) of the EFCC Act puts a limitation and condition to the President’s power to appoint. That limitation/condition is the confirmation by the Senate of an appointee. Therefore, a combined reading of the EFCC Act referred to above and the Interpretation Act means that the President’s power of appointment is subordinate to the confirmation by the Senate.”

This means that the president in exercising its powers to decide if it is expedient to allow Ibrahim Magu to continue acting, should take into consideration the interest of the Commission and the general public as provided under section 3 (2) of the EFCC Act.

The court further stated that an acting position is never meant to last as long as a substantive position. Where a person is appointed to act in order not to create a lacuna, the intention is never to install that person in perpetuity or to use the acting “window” to install a substantive position. That will be an aberration and a purposeful misinterpretation of the law.

The lacuna in the law has given the President, the proverbial “knife and the yam” to do as he pleases, being that no time is stipulated for the duration of the acting capacity in this case.

In summary, all the court said is that the EFCC is not an extra-ministerial body but rather a statutory body and the confirmation of the Chairman of EFCC is subject to confirmation by the Senate. Moreso, the intention of the law by a combined reading of the relevant provisions of the statutes, is that the position of an “Acting” Chairman of EFCC is meant to be for a short while until a substantive Chairman is appointed.

In this case, Ibrahim Magu has acted since 2015 which is longer than the tenure of a substantive position.

In the end, the court advised that the President should be well guided in making its decision.
This not does not preclude the president from sending Ibrahim Magu’s name along with other names for consideration by the Senate on a substantive appointment, but Ibrahim Magu’s appointment in acting capacity has gone beyond the intendment of the law.

It would be recalled that the Attorney General of the Federation, Abubakar Malami had earlier written to President Muhammadu Buhari for Ibrahim Magu to be relieved of his position as a result of alleged diversion of recovered loot coupled with insubordination and misconduct.