Following the decision by the Senate to reject the confirmation of Ibrahim Magu as the chairman of the EFCC, lawyers have opened up on the constitutional step Magu can take.
Acting EFCC Chairman, Ibrahim Magu
In this report by
Leadership, constitutional lawyers have given basis why and how Ibrahim Magu can remain acting as chairman of the Economic and Financial Crimes Commission (EFCC) even after he was rejected for the second time by the Senate.
They spoke against the backdrop of yesterday’s rejection of Magu as the substantive chairman of EFCC by the Senate for a second time, following the Department of State Services (DSS) insistence that he was not fit to head the country’s anti-graft agency.
The DSS had in a third report it submitted to the Senate on Tuesday referred the lawmakers in the Red Chamber to an earlier report dated October 3, 2016 it sent to them, in which it stated that Magu failed integrity test and will eventually constitute a liability to the anti-corruption war of the current government.
Consequently, Magu was rejected by a majority of the Senate membership after some members of the upper chamber and the acting EFCC chairman traded hard tackles and insults in the course of his screening yesterday.
But some senior lawyers who spoke to LEADERSHIP yesterday maintained that Magu could be EFCC’s chairman in acting capacity, his rejection by the lawmakers notwithstanding.
While some of them insisted that President Muhammadu Buhari has constitutional power to re-present his nomination a third time to the senate for confirmation as substantive chairman of EFCC or allow him to remain as acting chairman pending his appointment, others however contended that it would amount to constitutional breach on the part of the president.
Lagos lawyer and human rights activist, Chief Femi Falana (SAN) specifically said the rejection of Magu by the senate was the height of official ridicule of the president’s office, just as it was illegal and a contravention of the Rules of the Senate which states that matters that are sub judice should not be discussed by the lawmakers.
Noting that Buhari could still resubmit his name for the third time because there are precedents to multiple representation of nomination by past presidents to the Senate, he recalled that ex-President Olusegun Obasanjo forwarded nomination of former Education Minister, Babalola Aborishade, to the senate several times until he was eventually confirmed.
Falana said, “The rejection of the nomination of Mr. Ibrahim Magu as the chairman of the Economic and Financial Crimes Commission (EFCC) this afternoon by the Senate on the basis of a security report compiled by the State Security Service is the height of official ridicule of the office of the President. It is high time the State Security Service was restrained by President Buhari from sabotaging the fight against corruption by the federal government
“With respect to the Senate, the confirmation hearing hurriedly conducted today is illegal in every material particular. The participation of many senators who are either under investigation or being prosecuted by the EFCC has vitiated the entire proceedings of the Senate on grounds of conflict of interest. It is also a contravention of the Rules of the Senate which stipulates that matters which are sub judice shall not be discussed by the Senate” Falana added.
He, however, noted that notwithstanding the rejection of the nomination of Magu by the Senate there were still options open to President Buhari that are clear and straight forward.
Listing the options, the learned silk said, “Mr. Magu’s nomination may be re-presented to the Senate if and when the Federal Government decides to put its house in order. Alternatively, the President may allow Mr. Magu to remain the Acting Chairman of the EFCC since he was appointed in that capacity pursuant to section 171 of the Constitution.
“But if the President is not satisfied with Mr. Magu’s performance he is at liberty to appoint another person whose nomination will be forwarded to the Senate in accordance with section 2 (3) of the EFCC Act, 2004.
“In the light of the foregoing, President Buhari is enjoined to ensure that the fight against corruption is not derailed by highly placed corrupt elements who have enlisted the support of fifth columnists and reactionary forces in the government”.
In the same vein, chairman of the Presidential Advisory Committee against Corruption, Prof. Itse Sagay (SAN), insisted that as long Magu is the choice of the president to head the commission, the lawmakers have no legal justification to dictate to him who to appoint.
According to him, no law in the country prevents Magu from doing the job in acting capacity, especially when the president has the power to appoint whosoever he feels like in an acting capacity.
The professor of law said, “They have no right under the constitution to tell the president the name of who he should submit. If that is who the President wants, that is the name he would submit.
“Their role is confirmation and not nomination or presentation. There is no law stopping Magu from acting in the position because the president has the power to appoint whosoever he wants in an acting capacity and there is no limitation of his powers in that regard.
“The worst the Senate can do is what they have done, they can not dictate that the President should submit another name. In my opinion, that rejection is perverse because you can’t reject someone who has an outstanding records of integrity, honesty and achievements.
“So, that rejection is transparently contrary to the interest of Nigeria and Nigerians. They know that he is an honest man and he has done excellently well in the fight against corruption, so the decision is perverse”, Sagay further maintained.
Another constitutional lawyer, Chief Mike Ozekhome (SAN) argued, however, that President Buhari can no longer represent Magu’s name because of the serious moral burden, ethical challenges and legal impediments imposed on him with this second definitive rejection.
Ozekhome, who cited sections 2(1) and 2(3) of the EFCC Act, insisted that Magu ceases to be the executive chairman of the commission, because having left his ‘acting’ position during his proposal to the Senate, he had also lost his ‘acting’ capacity.
He said, “Representing his name will raise more questions than answers as to why the insistence on one man. This is unlike the first instance when Senate merely turned him down without any screening.
“That it was done shortly after the celebrated arrival of President Buhari from his medical vacation makes it more interesting and more significant as it underlines the independence of the Legislature”.
On his part, another learned silk, Seyi Sowemimo (SAN), argued that Magu can not continue to function in the position of an acting chairman in the face of his rejection by the Senate because that position ought to be a temporary one.
“I think since he has been rejected the second time, the presidency will be in a fix. This is because the Senate is an institution on its own and its confirmation is required. Now, that they are rejecting the man for the second time, I think that is where the matter should end. If his rejection is based on the DSS security report, it means it is not something the president can override”, he stated.