Impeachment axe against Osinbajo: Has Senate lost It?

There is a new test of will between the Senate and the Acting President, Professor Yemi Osinbajo. The trigger was a recent letter by the Acting President seeking Senate confirmation of Gbajabiamila as DG, Lottery Commission. Shortly after the letter was read, Ahmed Sanni from Zamfara State raised a point of order and opposed the demand from the acting president. Several media outlets reported that the Senate at that session threatened to impeach the Acting President unless he withdraws his statement on Ibrahim Magu, Acting Chairman of the EFCC, which the Senators regard as a deliberate attempt to denigrate the institution of the Senate. The Senators also want Magu to be sacked as Acting Chairman of the EFCC on the grounds that he twice failed to scale through the screening hurdles.

The background to this is that in April 2017 Professor Osinbajo reportedly faulted the insistence of the Senate that Ibrahim Magu should cease from parading himself as Acting Chairman of the Economic and Financial Crimes Commission (EFCC). After the Senate rejected Magu’s candidacy for the second time, Osinjabo was quoted as saying: “I’m fully in support of Magu as the EFCC chairman, just as the president is. It is up to the Senate to make their judgement. If our candidate is rejected…we can represent our candidate .... I fully agree with [Femi] Falana that there was no need in the first place to have presented Mr. Magu for confirmation.” (The Sun, April 13, 2017). In taking that position Professor Osinbajo, a lawyer and SAN, argued that although the EFCC Act requires that an EFCC chairman be confirmed by the Senate, part of Section 171 of the 1999 Constitution, as amended, which he argued is superior to the act, does not mandate such Senate confirmation.

The Senate first refused to confirm Ibrahim Magu as chairman of the EFCC in December 2016, and rejected him again in March 2017. On both occasions he was rejected based on adverse security report from the DSS.

There are speculations that Acting President Yemi Osinbajo has been the main supporter of the candidacy of Magu in the presidency. For instance the two times Magu was presented for confirmation in the Senate coincided with periods the substantive President Buhari was away, and he was holding forte for him as Acting President. It is also speculated that the DSS would not have had the audacity to submit such a damning report on Magu – twice, with the second being even more damning than the first- if President Buhari was truly warm to Magu’s candidacy.

Being that as it may, I believe there is a strong moral - if not legal- issue on the position of the Presidency (or is it the Acting President?) on the Magu affair:

I believe that those criticising the Senate for rejecting Magu twice, (when in their estimation he is doing a good job), miss the point. The Upper Chamber has the constitutional and moral authority to reject any nominee put before it. Whether members are driven by emotions or a desire to cover their backs is immaterial. In the past the Senate had also been accused of treating some nominees with velvet gloves with its infamous “take a bow and go” – just as some had also been refused confirmation on trite grounds such as their inability to recite the national anthem off-head (Sure, the ability to recite the national anthem is important but it is hardly a valid metric for measuring one’s competence for a job). The point here is that being ‘qualified’ is not enough to scale the screening hurdle just as being qualified does not guarantee that people will vote for you if you stand for an election.

A broader question raised by Magu’s second rejection by the Senate is whether he can continue as Acting Chairman of the EFCC. While the law seems to be silent on the number of times an Acting Chairman of the EFCC can be re-presented to the Senate for confirmation, I believe there is a persuasive moral argument why it will amount to impunity if Magu is allowed to continue to act. First, it will make mockery of the entire Senate confirmation process - which is a legal requirement in the statute setting up the EFCC. Second, we may be setting a precedent where in future, a nominee likely to have issues of confirmation in the Senate can be appointed to that office in an acting capacity ad infinitum. Third, is the implicit notion that the effectiveness of the EFCC is dependent on a mythical ‘superhuman’ who heads it and that Magu is such a superhuman whose fear should be the beginning of wisdom for all the corrupt people in the land. Such a messianic complex is antithetical to institution-building. Sustainable fight against corruption must be institution, not person-driven.

Let me mention that under the separation of power principle in presidential systems of government, it is not abnormal for nominees to be rejected on any ground or even for the three arms of government to aggressively and jealously guard their spheres of influence.

Based on the above, I am with the Senate in trying to guard against the institution of the Senate being ridiculed. A judge whose judgment is continuously flouted should at a point question whether there is a need for delivering more judgments if the ones he delivered previously are being disregarded. I believe that is the point the Senate wants to make by refusing to discuss the letter presented by Acting President Osinbajo asking it to confirm Gbajabiamila as DG, Lottery Commission.

However, I believe that by raising the impeachment axe at this point, (as reported by some papers), the Senate may have misfired. It is a PR disaster to raise an impeachment axe against an Acting President, who is on a crest of his popularity with Nigerians. The Senate (and the entire national Assembly) seems oblivious of the fact that it has an image problem – sometimes unfairly. Members of the National Assembly are often vilified for malfeasances that may actually be worse in the other two arms of the government. While I am sympathetic with their position to suspend the screening of nominees from the presidency, wouldn’t it have been more ennobling for the Senate to approach the Supreme Court for a declaration on the Magu affair and declare that such a suspension of screening will remain in force until the Supreme Court rules on the matter? By making it seem as if they have issues with Magu as a person – rather than defending principles and the institution of the Senate- they worsen their image problem by inadvertently feeding into the narrative that they are picking on Magu only because he is their nemesis and the only one they cannot bribe or manipulate.

Raising the impeachment axe will also work against the image of the Senate president Bukola Saraki – as a person. The general belief is that that he has a presidential ambition – a legitimate aspiration for any Nigerian. But then people may start linking the impeachment axe being raised to a desire by Saraki to realize his supposed presidential ambition using the Macbeth or ‘apiam way’ method. In the unlikely event that the Acting President is impeached, the Senate President takes over. Now if you add the way he emerged as Senate President to this sort of narrative, it will not be a flattering portraiture of the Senate President.

And talking about the Senate’s penchant for shooting itself on the foot, I believe it is also wrong of the Senate, as an institution, to dabble into the current moves to recall Senator Dino Melaye. The Senate was quoted as telling the Independent National Electoral Commission (INEC) that it was wasting its time with the recall move “because the various stages so far in the move, as facilitated by the electoral umpire, were not in line with laid down constitutional procedures and guidelines” (Vanguard, July 5, 2017). The resolution of the Senate was sequel to a point of order raised against the recall move by Senator Dino Melaye himself. The problem here is that it is not the constitutional role of the Senate to interpret the law or adjudicate on whether the procedures followed in the Dino Melaye recall case were lawful or not. It is a matter for the courts – and the case is already in court. The Senate cannot therefore be accusing the executive of usurping its functions while at the same time trying to usurp another branch of the government’s function.

Of course we all know that the entire move to recall Senator Dino Melaye is politics. Certainly fellow Senators have a right to do what they can to help their colleague – but not in the name of the Senate as an institution. Besides, Dino Melaye’s traducers are not publicly showing their faces, raising the question of the propriety of institutions that are supporting Melaye publicly showing theirs.