EFCC: On The Need For Senate Approval To The Appointment Of A Substantive Chairman

By Mohammad Rafindadi

I, with utmost respect and due difference to the giant Prof. Itse Sagay, who is a colosus in the law of Contract to the extent that he was awarded silk.

Chief Femi Falana SAN, who is a maverick in human rights enforcement and Chief J.S. Okutepa SAN who have been prosecuting errant lawyers for the maintenance of sanity in the Bar.

My understanding is that these trio have made a proposition that despite the provisions of section 2(3) of the EFCC Act, the President could proceed to appoint Ibrahim Magu as the substantive chairman of the EFCC pursuant to section 171 of the Constitution.

Their contention is that the EFCC is an extra ministerial department because section 43 of the EFCC Act empowers the Hononourable Attorney General of the Federation (HAGF) to make regulation for the Commission.

I hold a different view and for several reasons. First, EFCC is a creation of statute and is not a department in the Ministry of Justice. Its operation is regulated by the statute creating it. EFCC only answers to the HAGF in respect to prosecution. This is because the HAGF enjoys pre-eminence in respect to the exercise of his prosecutorial powers under section 174 of the Constitution. This cannot render the EFCC an extra ministerial department under the HAGF. Otherwise we will contend the same for every agencies empowered to inveatigate amd prosecute varied crimes. Thus, powers to make a regulation does not make it a department in the Ministry of Justice.  Even from its composition, one will find the Ministries of Justice, Finance and Foreign Affairs are given equal right of membership to the Board of the Commission.

Second, whilst it is true that the President could appoint an acting chairman of EFCC under section 171 of the Constitution, owing to its general provision and the absence of provisions regulating the appointment of an acting chairman under the EFCC Act, the appointment of a substantive chairman is different because it is regulated by section 2(3) of the EFCC Act, the president is required to abide by the provisions of sections 2(3) of the EFCC Act. This is because in the rule of interpretation of statute, section 2(3) of the EFCC Act is not in contravention of section 171 of the Constitution and as such it could be used as aid in the interpretation of the manner in qhich the president is to exercise his powers under section 171 of the Constitution. This is because a Constitution is not mwant to encompass everyprovision of the law and it is inconceivable for a person to contend that a procesural provision for thw exercise of section 171 of the Constitution is unconstitutional.

Further, by 171 of the Constitution, the power to appoint in acting and substantive positions are distinct in the provision so that whilst there might not be restrictions in the appointment of a person in acting capacity, there could be in respect of appointment of persons to occupy substantive post.

There are some Commissions that the appointment of their heads are regulated by statutes establishing them which does not require the confirmation of the Senate. An example is the provision of section 2(a) of the Companies and Allied Matters Act regulating the appointment of Head of the Corporate Affairs Commission. But there are others that require not only senatorial confirmation but also specialised qualification by such appointees. The Pension Reform Act is one such example.

If the proposition of these trio is true, then it would be okay for the President to appoint the governor of the Central Bank of Nigeria without complying with the provisions of section  8(1) of the Central Bank Act.

The proposition is also unfair as it also suggests that the current HAGF is incompetent or is not at home with his duties owing to the “misadvise” to the President for the mistake of sending Magu’s name to the Senate for confirmation, when before him, mighty Kanu Agabi SAN did advise President Obasanjo to nominate Nuhu Ribadu as pioneer chairman to the Senate for confirmation, Yar’adua was advised by Michael Aondoakaa to appoint Farida Waziri and Bello Adoke advised Jonathan to appoint Ibrahim Lamurde.

All these fine gentlemen of the Bar cannot be wrong whilst the trio are right. This is all the moreso that precedents have been set on the manner in which a substantive chairman of the EFCC is to be appointed.

The President cant be advised stop following this precedent now unless he obtains an order of court setting aside section 2(3) of the EFCC Act. The advise that the atep can be reversed by a simple letter is with due respect untenable.

I also doubt if a challenge of section 2(3) of the EFCC Act on ground that it is unconstitutional will succeed.

The provision requiring  Senate’s confirmation for the appointment of substantive heads of some extra ministerial department is one entrenched in the principle of checks and balances in a presidential system.

This is aimed at putting a leash to the exercise of powers of the executive.

The Senate may not confirm all appointments sent by the President. They are not established to be rubberstamps of the Executive. It may withhold consent in good faith or bad faith, but that should not be a reason to contend that the provisions requiring the President to obtain Senate’s confirmation unconstitutional.

Whilst we support the President in his quest to fight corruption, we should ensure the fight is done in compliance with the law all through.

The motto is not get it by all means but get it by abiding the due process of the law.

Rafindadi, a legal practioner wrote in from Abuja