By Monday Ubani
This paper seeks to examine the propriety of Ibrahim Magu as the Acting Chairman of EFCC after the pronouncement of the Federal High Court presided over by Justice Tsoho in Abuja.
Twice, President Buhari had submitted the name of Magu as the substantive chairman of EFCC to be confirmed by the Senate as required by the EFCC Act, section 2(3) to be precise, and twice was his confirmation denied by them. Their reason/s for refusal to confirm his appointment was a damaging security report from the DSS that portrayed Magu as unfit and improper person to hold the exalted office of the chairman of EFCC.
It will be recalled that before the presentation of his name by the President for confirmation, Magu was already placed on an Acting capacity for some time. After the initial refusal, he was retained by the president but still on acting capacity. Some of us at that time deprecated the act of DSS in sending an indicting report straight to the Senate without first submitting the said report to the presidency. We suspected foul play and advised that the president should represent the name of Magu with proper explanation to some of the allegations of DSS against him. After some time, Magu’s name was re-submitted to the senate for reconsideration and for the second time another damaging report was also sent to the senate by the same DSS citing the unsuitability of Magu for the chairmanship position of EFCC.
We were all outraged and expected that heads would roll for these acts of intransigence and national sabotage but alas not even a whisper was heard from the presidency. We remained alarmed up to this point, hoping to get explanation someday for this confused manner of running a government.
Soon thereafter legal opinions started to fly about that EFCC as an agency is not one of the agencies created by law that requires its chairman to be confirmed by the senate. Section 171 of the 1999 constitution as amended was pushed forward ferociously by the likes of Mr Femi Falana SAN, (my leader) and even the Vice President of the country, Professor Yemi Osinbajo SAN. They were countered by another school of thought that held the strong view that the chairmanship position of EFCC ought to be confirmed by the Senate before he takes his seat.
They cited other substantive chairmen like Ribadu, Madam Farida Waziri and Lamorde that received that confirmation from the Senate as required by law. They further queried that if it is true that the executive does not believe that the chairmanship position should be confirmed first by the senate, why did they submit the name of Magu for confirmation for the number of times they did? Finally, they stressed the fact that as at 1999 when the constitution was enacted, an agency known as EFCC was not in contemplation or created and so couldn’t have been mentioned by the constitution. The truth of the matter is that EFCC as an agency was created in 2004 by the Obasanjo administration, which means that the constitution could not have listed EFCC at that time as one of the agencies whose chairmanship position must be confirmed by the Senate. The EFCC Act of 2004, Section 2(3) however provided that mandatorily the chairmanship position must be confirmed by the Senate. The word used in the said section is “shall” which connotes compulsion.
In the midst of this total confusion some lawyers and commentators proffered some measure of interpretation in order to abate haze and cloud that covered everywhere at that time. They held the strong view, though wrongly, that since there is no timeline provided by law in Nigeria on how long a person can “act” in acting capacity, President Buhari can allow Magu in acting capacity pending the time the matter may be resolved politically or a pronouncement of the court sought and received. I did, even at that time during one of the days in a paper review at Radio Continental 102.3 advise that either the Executive or the Legislature should seek judicial intervention in the light of the misunderstanding existing between the two arms of government as to the correct interpretation of the position of the law about confirmation by the Senate.
Alas, none of the arms of government was ready to embark on the ‘suicide mission’ for fear of being ruled against. However, a lawyer by name Oluwatosin Ojaomo apparently convinced that the senate does not possess the power under the law to deny confirmation to Magu especially on the grounds of adverse security report from DSS, took the bull by the horn and sought the intervention of the court to resolve the impasse once and for all. Mr Ojaomo has asked the court in his application to reverse the rejection of Mr Magu on the grounds that the Senate “lacked powers to reject a nominated candidate for the said position” following his interpretation of the EFCC Act, 2004. According to the motion, Mr Ojaomo sought the determination of two issues by the court: 1 Whether the senate had powers to reject a validly nominated candidate by the presidency for the said position and 2. Whether the Senate was not bound by the provisions of the EFCC Act Section 2(3) to confirm any candidate nominated by the presidency for the said position. ACCORDING TO MR OJAOMO, THE PROVISIONS OF THE SECTION THAT THE PRESIDENT “SHALL” NOMINATE A CANDIDATE WHILE THE SENATE “SHALL” CONFIRM THE NOMINATED CANDIDATE MEANS THAT THE ROLE OF THE SENATE IS ONLY TO AFFIRM THE DECISION OF THE PRESIDENCY AND NOT TO QUESTION IT.
In his ruling however, Justice John Tsoho said the section referred to by the applicant was misconceived. According to the judge the said section provided that the presidency makes the nomination “subject” to the ratification by the Senate. The judge further interpreted the word “subject to” as used in the Act to mean “depending on”.
Therefore the APPOINTMENT OF THE CHAIRMAN IS DEPENDENT ON CONFIRMATION BY THE SENATE. He further said “The Senate is thus conferred with authority to ensure the choice of only suitable and credible persons for the appointment to that office. The submission of the plaintiff however gives the impression that the senate only exists to rubber stamp the President’s appointment of a chairman. Such view runs counter to the proper intendment of Section 2(3) of the EFCC Act 2004 and is misconceived”
However the matter was struck out for lack of locus on the part of the Plaintiff. Some legal commentators have latched on this issue of locus to hold the view that the court made no decision on the matter since the matter was struck out. In fact one legal expert dubbed the ruling as a ‘legal opinion’. I do not share the sentiment of these commentators. There is a judicial practice, which is highly commendable, adopted by judges recently whenever the issue of jurisdiction comes up in the course of proceedings. They are no longer hasty to derail the course of justice on the altar of legal technicality, but are in pursuit of whole Justice which has become a top priority for them. The practice adopted by our judges nowadays is to decide the entire case on its merits as well as rule on the issue of jurisdiction leaving it for the appellate courts to correct them if they are wrong both on their decisions on the substantive matter and on jurisdiction. By that practice the courts in Nigeria are actually being sensitive to the desire of Nigerians to hasten the course of justice in our country rather than the perennial delay of trials and proceedings that have been our lot and which has given our judiciary bad reputation. Surprisingly it is our activists who ordinarily have been lamenting on the delays in our judicial system are the ones deploring this procedure, and I cannot understand why it is so. It is indeed a good procedure that should attract commendation from those who desire quicker dispensation of justice in our nation. It is sad that Justice Tsoho was of the view that a “lawyer” who ordinarily should stand for due process and upholding of the rule of law does not have “locus” to initiate a public interest matter that touches on the interpretation of our constitution and an enactment of our legislature.
The matter is on appeal and we hope that this decision will be looked into critically and a position reached which makes room for liberal legal policy in the matter of “locus” on public interest litigation. After Adesanya’s case which is a Locus Classicus on “Locus standi”, a lot of progress have been made both on our substantive and procedural laws to liberalize the legal space for initiation of public interest litigations by the members of the public who need not prove “suffering hardship far and above other citizens”. That is the way for us to go as a nation. However it is important to point out here that despite the fact that the matter was struck out by the judge on the issue of locus, the COURT REACHED A DECISION ON THE ISSUES REFERRED TO IT FOR DETERMINATION AND THE RATIO OF THAT DECISION IS THAT THE APPOINTMENT OF MAGU AS CHAIRMAN OF EFCC IS SUBJECT TO CONFIRMATION BY THE SENATE AND CONFIRMATION IMPLIES EITHER ACCEPTANCE OR REJECTION. This decision can be upheld and affirmed or reversed on appeal but until it is reversed, it remains the decision of the court today in NIGERIA.
CAN MAGU REMAIN ACTING CHAIRMAN OF EFCC IN THE LIGHT OF THIS DECISION? 1. 2(3) of the EFCC Act 2004 envisages a situation where the appointment of the chairman and other officials of the board will be confirmed by the Senate before they are allowed to occupy and act in their offices. However, the practicality of this scenario often does not play out the way the framers of the law intend it to apply. There are a times, and it does occur often, that a public officer whose appointment is subject to confirmation by the legislature may not be automatically accepted or rejected, immediately the names are presented by the President. In that case, the public officer will be placed on an “acting capacity” pending the time the substantive office or position will be confirmed by the legislative assembly.
That was clearly the issue with the position of Magu when his appointment was on “acting capacity” pending the time his appointment will be confirmed. Moreover, the Executive did not help matters by not sending his name for confirmation on time, it was done several months thereafter. Indeed S11 of the Interpretation Act gives power to whosoever has the power to appoint to also appoint same person in acting capacity to the office. This usually occurs where there is a temporary vacancy and before there is time to fill such vacancy with the substantive office holder. In respect of the topic under discussion, this “Acting Appointment” ceases the moment the body authorized by the EFCC Act to confirm refuses either altruistically or maliciously to accept the nominee as the substantive chairman of the Agency. There is nowhere either in the EFCC Act, the Interpretation Act or in the Constitution where a public officer can continue to act in “Acting Capacity” the moment the confirmatory body has held whether altruistically or maliciously that that person is unqualified and unfit to occupy that office.
There are three possible actions open to a country (President) where her legislators have possibly acted not in the best interest of the country in rejecting a suitably qualified candidate for public office:
(a) A written protest from the president to the legislators with a possible replacement. Examples abound in American history where Presidents like Presidents Washington, Andrew Johnson, Bush and even Obama had their nominees rejected by the Senate. They replaced those nominees with protest letters to the legislators.
(b) Seek for a judicial interpretation if the Executive feels strongly that the legislators have acted way above their powers (ultra vires) in rejecting the nominees, at least we saw it in the recent case of Mr Oluwatosin Ojaomo, a lawyer whose case before the Federal High Court had prompted this discussion, and finally
(c) A patriotic and alert electorates who will use their voting power to chase out of the legislative chambers those they consider as “irresponsible legislators” whose stomach is their God and who do not consider national interest in carrying out their sacred national duties.
The above is what the country and its citizens can do if they are unlucky to be “blessed” with less patriotic legislators. That the country and its citizens will call for disobedience to the institutions created by law and insist on disobedience to the rule of law is an invitation to anarchy and destruction of a settled system which is not healthy for the country. This should not be the route to contemplate especially in a democracy!
COMPLEXITIES OF MAGU IN ACTING CAPACITY AND ITS IMPLICATION FOR THE COUNTRY IN THE LIGHT OF THE RECENT CASE OF THE SUPREME COURT IN AMERICA.
Recently the Supreme Court of America laid to rest the legal and political implications of placing a public officer in an “acting capacity” when the law creating the said office demands the confirmation by the legislature. The Supreme Court Justices by six votes to two votes affirmed an August 2015 decision by the D.C. Circuit, which found that one Solomon improperly served as ” Acting General Counsel” during the almost three year period between January 2011 and late 2013 while his nomination for confirmation as the Board’s General Counsel languished in the Republican controlled Senate. Ultimately the then President Obama withdrew Solomon’s nomination and put forward Richard Griffin, Jnr., who was eventually confirmed on October 29, 2013.
FACTS OF THE CASE.
National Labour Relations Board is one of the Agencies in the United States which has a position of “General Counsel” that must be confirmed by the Senate. A federal law known as Federal Vacancies Reform Act enacted in 1998 gives the President authority to appoint ‘Acting Officers’ to serve in these offices that require legislative confirmation until the President’s nominee/s completes the sometimes lengthy Senate confirmation process.
Pursuant to the above Act, when a former occupier of the position of General Counsel vacated that office in 2010, President Obama appointed one Mr Solomon Lafe to become the Agency’s Acting General Counsel. Six months later, former President Obama sent Solomon’s name to the Senate for confirmation. The Senate did not take any action on Solomon’s confirmation, in other words he was not confirmed (accepted). They later returned his name to the President at the expiration of the congressional term. Although Obama resubmitted his nomination in 2013, he later withdrew it and nominated Richard Griffin Jnr, whom the Senate confirmed as General Counsel in late 2013.
One of the directors of the Boards (National Labour Relations Board) who was acting as an agent of Mr. Solomon issued a complaint alleging that a particular Company by name South-West General had committed unfair Labour practices, but the company put up a defense that Mr. Solomon lacked authority to issue and litigate that complaint because his service as “Acting General Counsel” during the pendency of his nomination to the General Counsel position violated the Federal Vacancies Reform Act. The D.C. Circuit agreed with the company and interpreted the federal Act as prohibiting any individual whose position is subject to confirmation by the Senate from serving as an “Acting Officer” while he or she has become a nominee to fill that office for a full term. Agreeing with this position, one of the Justices of the Supreme Court, Chief Justice Roberts who wrote for the majority was of the view that applying the Federal Act to the case at hand was straightforward and concluded by holding that once President Obama submitted Solomon’s nomination to fill the General Counsel position for a full term for confirmation, the Federal Act PROHIBITED SOLOMON FROM CONTINUING IN THE ACTING GENERAL COUNSEL ROLE. CHIEF JUSTICE ROBERTS FURTHER NOTED THAT PRESIDENT OBAMA COULD HAVE APPOINTED ANY OTHER PERSON TO ACT IN THE ACTING CAPACITY DURING THE PENDENCY OF SOLOMON’S NOMINATION THAT REQUIRES CONFIRMATION. BECAUSE THE THEN PRESIDENT DID NOT DO SO, MR SOLOMON CONTINUED TO ACT WRONGLY AS HIS ACT VIOLATED THE FEDERAL LAW.
IMPLICATION OF THAT JUDGEMENT TO OUR SITUATION.
EVEN THOUGH we do not practice accurately the American system of government and their constitution, the truth of the matter is that we actually borrowed the American presidential system, its constitution (written) and its practices as a model for our country. Therefore court’s decisions like the above can be of persuasive influence to us as a people especially where there is dearth of legal authorities in Nigeria on the issue under discussion. The reason is because there is striking similarities in system and practices by both countries. It can be canvassed and authoritatively too that since the EFCC Act never envisaged the position of its chairman to be under any acting capacity at any time, he or she ought to be confirmed first by the Senate before he or she starts to act as the substantive chairman of the agency. IN OTHER WORDS, THE MOMENT THE PRESIDENT APPOINTS A PERSON AND SENDS THE NOMINEE TO THE SENATE FOR CONFIRMATION THAT PERSONS CEASES TO ACT IN THAT “ACTING CAPACITY” PENDING ACCEPTANCE OR REJECTION BY THE SENATE. ANOTHER PERSON CAN BE APPOINTED TO THAT ACTING CAPACITY AND CERTAINLY NOT THE PERSON WHOSE NAME HAS BEEN SUBMITTED FOR CONFIRMATION BY THE SENATE. HE CAN REMAIN IN AN ACTING CAPACITY UNTIL HIS OR HER NAME IS SUBMITTED FOR CONFIRMATION.
Even the Interpretation Act is resorted to wrongly at times cannot be of help here since the substantive act (The EFCC Act) did cover the ground leaving no room for lacuna. However, even if it is agreed that the relevant section in the Interpretation Act that gives room for “acting capacity”, that can only be for a temporary period pending the time the position will be accepted or rejected by the confirmatory authority, i.e., (the Senate).
THE MOMENT THE CONFIRMATORY AUTHORITY EXERCISES ITS POWER BY ACCEPTING OR REJECTING THE CONFIRMATION OF THAT POSITION, THE AFFECTED PERSON AUTOMATICALLY CEASES TO ACT IN ACTING CAPACITY. IT IS EITHER HE OR SHE ASSUMES THE POSITION OF SUBSTANTIVE CHAIRMAN UPON ACCEPTANCE OR CEASES TO ACT IN THAT CAPACITY WHEN REJECTED UNLESS HE IS REPRESENTED IMMEDIATELY BY THE PRESIDENT FOR RECONSIDERATION. Which is not what is the case with Ibrahim Magu presently.
Though we may press for us to overlook some of the defects in the operations of our laws due to lack of precedence and argue that Magu was in acting capacity when his name was submitted to the senate for confirmation, the moment the Senate returns a verdict of “no” to his confirmation, he ceases automatically to act as the Acting Chairman of EFCC. Any act done pursuant to that capacity will be declared null, void and illegal going by the decision of the SUPREME COURT ON THE ABOVE QUOTED CASE OF NLRB V. SW GENERAL, INC POSTED NLRB DEVELOPMENTS IN MARCH 22, 2017.
FINALLY MAY I SUBMIT WITH DUE RESPECT THAT IBRAHIM MAGU AS AT TODAY IS ACTING ILLEGALLY AS THE ACTING CHAIRMAN OF EFCC SINCE HIS APPOINTMENT FAILED THE LITMUS TEST OF ACCEPTANCE BY THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA.
Monday Onyekachi Ubani Esq,
LEGAL PRACTITIONER, PRINCIPAL PARTNER
UBANI & CO, (CURRENTLY THE 2ND VICE PRESIDENT
OF NIGERIAN BAR ASSOCIATION.)