Buhari, Magu and Se­lec­tive Ad­her­ence to Rule of Law

The leg­isla­tive and ju­di­cial arms of govern­ment have the re­spon­si­bil­ity to find ways to check what is fast be­com­ing ex­ec­u­tive anar­chy.

Financial Nigeria Magazine - - Law & Society -

Sec­tion 2(3) of the Eco­nomic and Fi­nan­cial Crimes Com­mis­sion (Establishment) Act 2004 pro­vides as fol­lows: “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 con­fir­ma­tion by the Se­nate.” It was in com­pli­ance with this pro­vi­sion of the law that Pres­i­dent Muham­madu Buhari sent the name of the Act­ing Chair­man of the EFCC, Ibrahim Magu, to the Se­nate for con­fir­ma­tion twice – the first time was in De­cem­ber 2016 and sub­se­quently in March 2017. On both oc­ca­sions, the Se­nate re­fused to con­firm Magu's ap­point­ment, ask­ing the Pres­i­dent to ap­point some­one else.

Dif­fer­ent re­ac­tions have trailed the Se­nate's de­ci­sion. A pop­u­lar view among Nige­ri­ans is that “cor­rup­tion is fight­ing back.” Mean­while, var­i­ous in­ter­pre­ta­tions have been given to the EFCC Act and the 1999 Con­sti­tu­tion by learned pro­fes­sors and Se­nior Ad­vo­cates of Nigeria (SANs). The Vice-Pres­i­dent, him­self a pro­fes­sor and well re­spected SAN, re­cently gave voice to the de­ci­sion of the Fed­eral Govern­ment to re­tain Magu with­out con­fir­ma­tion by the Se­nate. The Vice Pres­i­dent re­lied on the pow­ers of the Pres­i­dent to make such ap­point­ments un­der Sec­tion 171 of the Con­sti­tu­tion.

Fol­low­ing the re­cent mind-bog­gling re­cov­er­ies of stashed funds by the EFCC, thanks to the whistle­blower pol­icy, there seems to be some vin­di­ca­tion to the sup­po­si­tion that the Se­nate re­jected Magu be­cause he is do­ing a good job. Which­ever side of the de­bate one falls into, it is im­por­tant to note that this is­sue goes be­yond the ca­pac­ity and in­tegrity of Ibrahim Magu. There is ac­tu­ally a larger is­sue, which is to de­ter­mine whether the ex­ec­u­tive is abus­ing its pow­ers by re­fus­ing to be checked by the legislature.

First, let's take a look at the con­sti­tu­tional pro­vi­sion that has 'sud­denly' done away with the need to con­firm the ap­point­ment of the Chair­man of the EFCC by the Se­nate af­ter four­teen years of the agency's ex­is­tence. Sec­tion 171 of the 1999 Con­sti­tu­tion pro­vides that: “(1) 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. (2) 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 an Ex­tra-Min­is­te­rial Depart­ment of the Govern­ment of the Fed­er­a­tion how­so­ever des­ig­nated; and (e) any of­fice on the per­sonal staff of the Pres­i­dent.”

Those who ar­gue in favour of the de­ci­sion of the govern­ment to re­tain Magu de­spite the Se­nate's re­jec­tion posit that the EFCC is an ex­tra-min­is­te­rial depart­ment of the govern­ment and thus the pro­vi­sion of the EFCC Act re­quir­ing con­fir­ma­tion of the ap­point­ment of the Chair­man by the Se­nate is un­con­sti­tu­tional, null and void.

Suf­fice to say this piece isn't an­other opin­ion about the in­ter­pre­ta­tion of Sec­tion 2(3) of the EFCC (Establishment) Act, or Sec­tion 171 of the Con­sti­tu­tion. The tenets of our democ­racy and the prin­ci­ples of sep­a­ra­tion of pow­ers make it the job of the ju­di­ciary to be the guardian of the con­sti­tu­tion and give in­ter­pre­ta­tion to the pro­vi­sions of the Con­sti­tu­tion. Hence, only the ju­di­ciary ought to make the determination on the con­sti­tu­tion­al­ity or oth­er­wise of the EFCC Act. Pend­ing such a determination in court, the ex­ec­u­tive can­not dis­re­gard a sub­sist­ing law or de­clare that law un­con­sti­tu­tional.

It is im­por­tant to note that the EFCC Chair­man­ship is not the only ap­point­ment re­quir­ing con­fir­ma­tion by the Se­nate. By their en­abling laws, the Chair­man and mem­bers of the In­de­pen­dent Cor­rupt Prac­tices and Other Re­lated Of­fences Com­mis­sion (ICPC), the Gover­nor and Deputy Gover­nors of the Cen­tral Bank of Nigeria, the Ex­ec­u­tive Chair­man of the Fed­eral In­land Rev­enue Ser­vice (FIRS), among oth­ers, also re­quire con­fir­ma­tion of their ap­point­ment by the Se­nate. Can we say all these bod­ies also clas­sify as “ex­tramin­is­te­rial” de­part­ments? If they are, ap­point­ment of their heads would not re­quire rat­i­fi­ca­tion by the Se­nate, go­ing by Sec­tion 171 of the Con­sti­tu­tion.

Our con­sti­tu­tion vests the pow­ers of the Fed­eral Repub­lic of Nigeria in three sep­a­rate or­gans of govern­ment. The leg­isla­tive pow­ers are vested in the Na­tional As­sem­bly (NASS), con­sist­ing of the Se­nate and the House of Rep­re­sen­ta­tives. The ex­ec­u­tive pow­ers are vested in the Pres­i­dent to be ex­er­cised di­rectly through him/her or through the of­fi­cers in the pub­lic ser­vice. Ju­di­cial pow­ers are vested in the courts.

The con­sti­tu­tional role of the ex­ec­u­tive arm of govern­ment is the ex­e­cu­tion and main­te­nance of the con­sti­tu­tion, and the laws made by the leg­isla­tive arm of govern­ment. It is, how­ever, the courts that

give an in­ter­pre­ta­tion of those laws and ap­ply them to spe­cific cases or dis­putes. There­fore, the ex­ec­u­tive would ex­e­cute or en­force the de­ci­sions of the courts be­cause they are based on the in­ter­pre­ta­tion of the con­sti­tu­tion and var­i­ous laws.

Part of the rea­son for the adop­tion of the doc­trine of sep­a­ra­tion of pow­ers is that it pro­vides a sys­tem of checks and bal­ances among the three or­gans of govern­ment. Ab­so­lute power cor­rupts the best of men; it is, there­fore, es­sen­tial to have one arm of govern­ment check­ing the ex­cesses of the other arms to pre­vent abuse of power. Some would ar­gue that it is in the spirit of the same doc­trine that cer­tain ap­point­ments to be made by the Pres­i­dent are made sub­ject to con­fir­ma­tion by the Se­nate. This is to en­sure that the Pres­i­dent does not hand­pick men or women who would sim­ply dance to his tune.

Democ­racy is a rep­re­sen­ta­tive form of govern­ment. Not­with­stand­ing the imperfections in Nigeria's elec­toral sys­tem, mem­bers of the NASS are rep­re­sen­ta­tives of the dif­fer­ent con­stituen­cies that make up the coun­try. If the law re­quires their in­put in the ap­point­ment of a per­son to fill a pub­lic po­si­tion, it nec­es­sar­ily be­comes an af­front to the elec­torate to have the ex­ec­u­tive re­tain such a per­son when the rep­re­sen­ta­tives have re­jected him. Af­ter all, it is not all po­si­tions that re­quire such con­fir­ma­tion – the Di­rec­tor Gen­eral of the Na­tional Agency for Food and Drug Ad­min­is­tra­tion and Con­trol (NAFDAC) and the Chair­man of Nige­rian Drug Law En­force­ment Agency (NDLEA), for in­stance, do not re­quire con­fir­ma­tion by the Se­nate.

The Se­nate has been called upon by some in­di­vid­u­als to ap­proach the courts to seek the in­ter­pre­ta­tion of the EFCC pro­vi­sions vis-à-vis Sec­tion 171 of the Con­sti­tu­tion. Such pres­sure ought to be mounted on the ex­ec­u­tive that in­tends to do away with the pro­vi­sion of the EFCC (Establishment) Act re­quir­ing con­fir­ma­tion of the ap­point­ment by the Se­nate.

In any event, the ex­ec­u­tive arm of govern­ment in this ad­min­is­tra­tion seems to have a ten­dency to pick and choose when it can be checked by the ju­di­ciary. In the two years this ad­min­is­tra­tion has been in power, it has obeyed some court or­ders, while choos­ing to re­ject so many oth­ers.

For in­stance, the Nige­rian Elec­tric­ity Reg­u­la­tory Com­mis­sion (NERC) in­creased the elec­tric­ity tar­iff de­spite an or­der of court direct­ing it not to do so; the Depart­ment of State Ser­vices (DSS) has re­fused to re­lease for­mer Na­tional Se­cu­rity Ad­viser, Col. Sambo Da­suki (rtd) from de­ten­tion de­spite or­ders of the court to do so. In this re­gard, the govern­ment has even ig­nored the judg­ment of the Eco­nomic Com­mu­nity of West African States (ECOWAS) court.

The govern­ment has also re­fused to re­lease the leader of the Is­lamic Move­ment of Nigeria, Sheikh El- Zakzaky, and his wife, de­spite an or­der of court. These are sen­si­tive cases, no doubt.

How­ever, many oth­ers fac­ing an­ti­cor­rup­tion charges have been re­leased on bail based on the con­di­tions im­posed by the court. Leader of the In­dige­nous Peo­ple of Bi­afra (IPOB), Nnamdi Kanu, was also re­leased by the govern­ment last month af­ter he ful­filled the bail con­di­tions set par­tic­u­larly in view of Pres­i­dent Buhari's stance on the is­sue dur­ing the maiden pres­i­den­tial me­dia chat some­time in De­cem­ber 2015. But it does not lie within the pow­ers of the ex­ec­u­tive to de­cide which or­ders of court to obey and when to give pri­vate in­ter­pre­ta­tions to laws. Such ac­tions by the govern­ment con­sti­tute abuse of power.

As the arm of govern­ment em­pow­ered to en­force laws, it is dif­fi­cult to truly check the ex­cesses of an ex­ec­u­tive arm of govern­ment de­ter­mined to rule on its own terms. The leg­isla­tive and ju­di­cial arms of govern­ment have the re­spon­si­bil­ity to find ways to check what is fast be­com­ing ex­ec­u­tive anar­chy.

Even if the presidency finds the com­pe­tence and in­tegrity of Ibrahim Magu unim­peach­able, it is doubt­ful that the coun­try has sunk to such an abysmal state that there is no other per­son the Pres­i­dent can ap­point to lead his fight against cor­rup­tion. The point at is­sue is that it is un­ac­cept­able to be se­lec­tive in the ad­her­ence to the rule of law. A Fi­nan­cial Nigeria colum­nist, Fun­mi­layo Odude is a La­gos-based le­gal prac­ti­tioner, and a pub­lic af­fairs an­a­lyst.

The ex­ec­u­tive arm of govern­ment in this ad­min­is­tra­tion seems to have a ten­dency to pick and choose when it can be checked by the ju­di­ciary. In the two years this ad­min­is­tra­tion has been in power, it has obeyed some court or­ders, while choos­ing to re­ject so many oth­ers.

A view of the Na­tional As­sem­bly Com­plex, Abuja

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