LAW Can Buhari appoint substantive EFCC chair without Senate’s approval?
AKaduna based senior lawyer, Barrister Aliyu Umaru has urged President Muhammadu Buhari to the Senate and proceed to appoint a substantive Chairman for the Economic and Financial Crimes Commission (EFCC).
The Senate in December rejected the confirmation of Mr. Ibrahim Magu as the substantive Chairman of the EFCC over the report of the Department of State Services (DSS).
President Buhari last week re-nominated Magu for confirmation but the Senate said the President’s communication failed to address the DSS report.
Umaru said the Constitution gives the President the power to appoint a substantive EFCC chair without recourse to the Senate.
He said Section 2 of the EFCC Act deals with the composition of the EFCC and the mode of appointment of the chairman and members of the Commission.
“It is clear that provision of Section 2 (3) of the EFCC Act is unconstitutional in the sense that it provides that such appointments shall be made by the President “subject to the confirmation of the Senate.”
This provision is unconstitutional for the following reasons: In the exercise of its lawmaking power, the National Assembly does not have the power to confer upon itself the power to participate in the execution of the law as it has done under section 2 (3) of the EFCC Act, “he said.
He said only the provisions of the Constitution of Nigeria can confer upon the National Assembly the power to participate in the execution of laws as it has done under section 154 of the 1999 Constitution read along with section 153 of the Constitution.
Citing sections 153 (1) of the Constitution, he said, “There shall be established for the Federation the following bodies, namely––
Code of Conduct Bureau, Council of State; Federal Character Commission, Federal Civil Service Commission, Federal Judicial Service Commission, Independent National Electoral Commission, National Defence Council, National Economic Council, National Judicial Council, National Population Commission, National where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate.
(2) In exercising his powers to appoint a person as Chairman or member of the Council of State or National Defence Council or the National Security Council, the President shall not be required to obtain the confirmation of the Senate.
(3) In exercising his powers to appoint a person as Chairman or member of the Independent National Electoral Commission, the President shall consult the Council of State.”
“The above constitutionally recognized institutions are national institutions and EFCC, as a mere Federal agency, is not one of them and therefore, the National Assembly does not have the power to confer upon itself the right to participate in the execution of the law establishing it.
”Only the Constitution can confer upon the National Assembly this kind of executive power as it has done under section 153 of the Constitution in respect of the National Agencies listed therein.
”My advice to the President of Nigeria is that he should proceed to appoint the person he considers as qualified to the Chairman of the EFCC without reference to the Senate, “he said.