The Anti-Graft War and Magu’s Burden

Onyema Omenuwa argues that the retention of Ibrahim Magu as EFCC boss constitutes a moral burden to the administration

It is not strange for a government to commit the kind of inadvertence that has happened in respect of adherence to the legal provisions for appointment of substantive chairman of the Economic and Financial Crimes Commission (EFCC). After all, a government depends on human beings as a vehicle to actualise its programmes and human beings are prone to mistakes. Under the EFCC Act, specifically section 2, subsection (3), “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 of the Senate.” Ordinarily, this provision is crystal clear and the reason for such a double-barrelled pre-appointment requirement, as in many other statutes, is obviously to guard against the president pushing his lackey to the headship of such a critical agency. Significantly, the establishment of the commission in 2003 by the President Olusegun Obasanjo administration had been hailed as a positive and patriotic response to the country’s yearning for a strong and purposeful structure to stem the tide of corruption and concomitantly accelerate economic growth.

The jury is still out on whether the requirement, stringent as it seems, has achieved its purpose of securing the EFCC from presidential manipulations or even discouraging the successive chairmen from obscene display of loyalty to the president, rather than engage in an unbiased discharge of their mandate. However, successive presidents have observed the requirement for appointment and in accordance with it, Mallam Nuhu Ribadu was appointed and served from 2003 to 2008; Mrs. Farida Waziri, from 2008 to 2011, and Mr. Ibrahim Lamorde, from 2012 to 2015. Presently, the commission has an acting chairman, Mr. Ibrahim Magu, who has remained in that acting capacity since 2015 because President Muhammadu Buhari’s proposal for his eventual appointment has got entangled in a web of controversies. The Senate has twice denied him confirmation, on December 15, 2016 and March 15, 2017, on the strength of a damning report on him by the Department of State Services (DSS), Nigeria’s integrity watchdog, whose hurdle certain categories of nominees for public office must scale, to be qualified.

At the last rejection of Magu, the Senate was blunt on its seriousness with the DSS report, which, among other things was categorical that “Magu has failed the integrity test and will eventually constitute a liability to the anti-corruption drive of the present administration”. Though, it wouldn’t be the first time in our political history that a president’s nominee would be rejected by the Senate, the embarrassment associated with Magu’s, considering his DSS-cited deficiency in the very attribute that matters most for such appointment, has the potential to humble even the most arrogant government. Government has been left in quandary ever since: should it re-present Magu to the Senate for the third time or discard his nomination? The latter option would be tantamount to eating the humble pie and so, a very difficult one, in view of the obvious supremacy battle between the Buhari-led executive arm of government and the National Assembly, particularly the Senate leadership.

With this development, analysts, legal and otherwise, on both pro-President/Magu and pro-Senate leadership divides have inundated the discourse with multifarious views, with each and every view, of course, advancing support for the divide it inclines towards. But rather than abate, such inconsistencies would rather intensify the logjam, until the intervention by Femi Falana (SAN). Very much reminiscent of the late Gani Fawehinmi, Falana’s brilliant view would provide a decider, or so it seemed. The learned Senior Advocate has unravelled the inconsistency of the EFCC Act, with the 1999 Constitution, on the provision for appointment to public office, in the category where Magu falls. Section 2, subsection (3) of the EFCC Act is at variance with section 171 of the 1999 Constitution on presidential appointments. The section provides: ‘(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 – (d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated….’

Anybody that has primary knowledge of law would know that any law or provision of any law that is in conflict with the constitution or a constitutional provision is a nullity and of no effect. Strangely, this obvious conflict seems to have escaped every lawyer’s notice, since the inception of the EFCC Act in 2003! And with such oversight, every EFCC chairman that was appointed subsequent to the enactment of the act has had to be subjected to Senate confirmation.

Yet, if it was thought that with Falana having solved the problem, as it were, Magu would now have a smooth sail to substantive headship of the EFCC, the persistence of the controversy has proved otherwise. However, this state of affair would be understandable, when viewed from the broader perspective of the DSS report, which originally posed a clog in the wheel of Magu’s ascendancy to the EFCC chair. In fact, with the Falana eye-opener, it has ceased to be a legal or constitutional issue whether or not Magu is qualified to head the EFCC. It has become a moral issue. But would the Buhari administration, even when it has in many instances condoned overt acts of official misconduct on the part of its appointees, be comfortable showcasing a man who “has failed the integrity test and [who] will eventually constitute a liability to the anti-corruption drive of the present administration”? For sure, it has not been forgotten that the administration was propelled to electoral victory, majorly on its promise to deal corruption a deathly blow.

With the unabated controversy that has trailed his nomination and the emphatic double rejection by the Senate, the wide world would have already taken notice of Magu, albeit in a negative light, and his appointment, despite such recognition, would be greeted with outright cynicism