Ibrahim Magu
Acting
President Osinbajo might be approaching the Supreme Court to seek
clarification on the clash between the legislature and the executive arm
of government.
The Presidency will soon approach the Supreme Court to make a
pronouncement on the lingering crisis between the executive and the
National Assembly over the powers of the President to appoint some heads
of government agencies without recourse to the Senate based on the
provisions of Section 171 of the Constitution.
A Presidency source, who disclosed this to journalists in Abuja, on
Sunday, said the development was based on legal advice made available
to the government on the different interpretations of the law on the
matter.
The Acting President, Yemi Osinbajo, had, in an interview in April,
ruled out the possibility of President Muhammadu Buhari replacing the
acting Chairman of the Economic and Financial Crimes Commission, Ibrahim
Magu, whose nomination was rejected by the Senate twice.
He had said he aligned himself with the argument of a Senior
Advocate of Nigeria, Mr. Femi Falana, that Senate confirmation was not
needed for the EFCC chairman based on the provisions of Section 171 of
the Constitution.
Osinbajo’s statement drew the anger of Senators, who, penultimate
Tuesday, resolved to step down all requests for confirmation into
executive positions from the Presidency.
A source in the government said on Sunday that the legal advice,
prepared as a working document in the Presidency regarding the
differences in the constitutional interpretations on matters of certain
federal appointments, recommended that a judicial pronouncement,
preferably by the Supreme Court, would settle the matter.
He said although the Presidency believed that Section 171 was clear
that certain appointments did not require Senate’s consent, it (the
Presidency) was not behaving as if its interpretation of the law had
become a policy.
The source stated that the Presidency was persuaded that its
interpretation was the correct one, but it was conscious and aware of
the fact that only a proper judicial ruling on the matter would make it a
settled policy on point of law.
He added that the advice unearthed a ruling of the Supreme Court on
the matter, where the current Chief Justice of Nigeria, Justice Walter
Onnoghen, before his elevation as the CJN, had ruled in line with the
view of the Presidency on the matter.
Onnoghen was quoted to have ruled that wherever and whenever the
Constitution speaks, any provision of an Act/Statute on the same subject
matter, must remain silent.
“The divergent positions being held by the executive and the
legislature on the subject of confirmation is one that requires timely
and ultimate resolution. Such resolution could only be reached through
judicial process.
“Such interpretation would lay to rest the lingering crisis
between the two arms,” the source stated, quoting the recommendation
made in the legal advice.
Specifically on Magu, he said the advice concluded that “the
rumblings in the discourse on the confirmation of the EFCC chairman have
more to do with politics that with the law.”
The advice, which affirms the powers of the President to appoint,
in acting capacity, into positions such as the EFCC chairmanship,
according to the source, also noted that “in the recent past, the
ministerial nomination of the late Prof. Abraham Babalola Borishade
(Ekiti State) by (former) President Olusegun Obasanjo was rejected
repeatedly by the Senate.”
It added, “In fact, it will be recalled that this particular
nomination was presented four times in 18 months before it was
eventually confirmed by the Senate.
“This position is because of the long established and
entrenched principle of law that any legislation, that is inconsistent
with the provision of the Constitution, is null and void and of no
effect whatsoever to the extent of such inconsistency. (See the Supreme
Court cases of DR. OLUBUKOLA ABUBAKAR SARAKI v. FEDERAL REPUBLIC OF
NIGERIA (2016) LPELR-40013 (SC) and CHIEF ISAAC EGBUCHU v. CONTINENTAL
MERCHANT BANK PLC & ORS (2016) LPELR-40053 (SC).
“In the case of CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT
BANK PLC & ORS (Supra), Walter Samuel Nkanu Onnoghen, who today is
the Chief Justice of the Federation, held, at page 19, paragraph C, ‘The
time-honoured principle of law is that wherever and whenever the
Constitution speaks any provision of an Act/Statute, on the same subject
matter, must remain silent’.”
Despite its position on the matter, the government official said it
was not accurate to say the Presidency had started to act unilaterally
on its own interpretation of Section 171.
“Since the time the Acting President spoke and when Senate
recently expressed its disagreement, we have been sending nominations on
several occasions, including into the INEC and other boards and
commissions.
“So, we are clearly not acting unilaterally based on our own
interpretation of the law, even though we believe firmly we are right,” he added.
Activists, Falana, others ask Presidency to approach apex court
Meanwhile, human rights lawyer, Femi Falana (SAN), and some other
prominent activists on Sunday, called on the Presidency to approach the
Supreme Court for the interpretation of the 1999 Constitution regarding
the confirmation of non-ambassadorial and non-ministerial nominees.
The advice was contained in statement jointly signed by Falana and
some activists including Prof. Jibrin Ibrahim, Lanre Suraj, Anwal
Rafsanjani and Ezenwa Nwagwu.
The activists said since the Presidency and the Senate could not
agree on the confirmation of Magu, it had become necessary for the
Presidency to approach the Supreme Court.
They, however, maintained that the upper chamber of the National
Assembly had no right to sack Magu since it had no power to hire him.
The statement read in part, “While the dispute over the budget
had yet to be resolved, the Senate passed two controversial resolutions.
The first resolution directed the Acting President to remove the acting
Chairman of the EFCC, Mr. Ibrahim Magu, from office.
“In a bid to ensure that the resolution was implemented, the
Senate decided to put on hold any appointment which requires the
confirmation of the Senate. Without mincing words, the Presidency has
rejected the call for the removal of Magu.
“The executive is advised to seek judicial resolution of the
stalemate over the confirmation of Magu’s appointment as the substantive
chairman.
“Meanwhile, we assert that the Senate cannot annul his (Magu)
acting appointment since his appointment was without the consultation
with or confirmation of the Senate.”
The human rights crusaders also criticised the House of
Representatives for the summons to the Minister of Power, Works and
Housing, Mr. Babatunde Fashola (SAN), who questioned the powers of the
legislature to insert personal projects into and alter the budget.
The statement added, “This self-serving action of the National Assembly is capable of distorting the development agenda of the government.
‘‘It is hoped that the minister will take advantage of the
invitation to convince the legislators on the urgent need to restore the
development projects deleted from the budget.”
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