How long can Magu act as EFCC chairman?

Controversy has continued to trail the Senate’s refusal to screen the Acting Chairman of the EFCC, Mr Ibrahim Magu. But WAHAB SHITTU in this piece, argues that the upper chamber is yet to screen Magu, saying that there is the need for the Senate to do the needful in the public and not in secret.

The jurisprudence of statutory appointments is expanding particularly in the light of the controversy generated by the Senate’s resolution to defer Mr. Ibrahim Magu’s confirmation pending the time issues raised in the security report are resolved.

This development may have raised vital constitutional questions to wit: whether the president is entitled to appoint anyone into an acting position when the statute provides for a substantive appointment in a given situation? Whether there is a specific duration to function for anyone appointed to an acting position? Whether the senate by its action has already rejected the nomination of Magu? Whether the president is entitled to re-nominate Magu in the circumstances? Whether the content of the security report is enough to disqualify Magu? Whether the explanations offered by Magu in the circumstance are sufficient to confront the allegations in the security report? These and more posers are the subject of this intervention.

The first point to address is the legal position because it is tempting in this kind of discourse for commentators to be guided by sentimental and other considerations. The latter approach is unlikely to assist our jurisprudence. I therefore ask, what is the legal position?

Section 2(3) of the Economic and Financial Crimes (Establishment) Act 2004 providing for the appointment of the Chairman and other members of the Commission states as follows: “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.”

Clearly from the above provision, the President is the appointing authority and his capacity to act in respect of same is fortified by the word ‘shall’ which has greater effect in statutory interpretation than the word ‘may’. Therefore, no other authority can appoint the EFCC Chair rather than the President of the Federal Republic of Nigeria.

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Again the obligation to confirm the said appointment is also stringently vested in the Senate because the statute states that such appointment shall be subject to the confirmation of the Senate, the word shall conferring authority on the senate to stamp such appointment with the seal of finality. Consequently, that no one can take away from the Senate the authority to legally put a stamp of approval to a nominee of the president for EFCC Chair. This submission is authoritative regarding an appointment into the substantive position of the EFCC Chair.

However, what is the law regarding appointment into an acting position? Again in this area, our jurisprudence is not silent.

Section 11 of the Interpretation Act cap 123 of the Laws of the Federation of Nigeria vol. 7 updated up to December 31, 2010 and prepared under the authority of the revised edition (laws of the Federation of Nigeria) Act 2004 specifically on appointments is relevant in this regard.

What is clear from the above statutory provision is that the president being the appointing authority has a corresponding power to remove or suspend the holder of the office. The president also has the power to reappoint or reinstate the holder of the office.

Based on the above legal advisory, Magu is entitled to act as acting EFCC Chair as long as President Muhammadu Buhari pleases. This is the position of the law; this is the position of the Interpretation Act.

By the same provisions of the Interpretation Act, the President is entitled to re-nominate Magu even where his first nomination was not considered by the Senate.

In the same vein, where the substantive occupier of an office is removed by the appointing authority, in this case the President, the law vests the president with the power to re-instate such a removed occupant of the substantive position. Again, that is the position of the law.

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The other legal issue to be resolved is whether the Senate has by its action rejected the nomination of Ibrahim Magu?

It is my submission that the Senate at its executive session merely deferred the confirmation of Magu pending the time issues raised in the security report are resolved. This is because the screening of Magu was not carried out by the Senate at a plenary that would allow all senators take a vote on the question whether or not to confirm or reject the nomination.

Confirmation of such an appointment ought not to be shrouded in secrecy because the whole world is interested. Why was Magu’s proceedings conducted in secrecy?

Closely related to this is the process leading to the nomination of a candidate by the appointing authority. I dare say that the nomination of Magu forwarded to the Senate by the President could not have been effected without security clearance of the candidate.

The president whose integrity I know, will not forward the name of any candidate for such sensitive appointment without first seeking and obtaining security clearance.

Vice-President Yemi Osinbajo whose integrity I know, as impregnable will not append his signature to a letter written to the senate on behalf of his boss on Magu without seeking and obtaining security clearance.

The other issue is the appropriate channel for forwarding a security report on a nominee by Mr. President for a substantive office.

I take the strong view that the appropriate person to first receive and be notified of such report is the president being in this case the appointing authority.

I remain convinced that if such a report were forwarded to the president, the president would take steps to investigate the veracity of same and would not hesitate to withdraw the candidacy of the nominee even before the senate has time to consider the issue.

Closely related to this is the timing of the security report coming months after the nomination of the candidate was forwarded to the Senate.

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The other issue that cannot be glossed over is the seeming delay by the senate in considering a nomination for such sensitive position forwarded to it by the President.

In spite of my reservations however as expressed above, the vital question remains: What is the content and substance of the security report? Are the allegations contained therein provable? If provable, are they sufficient to disqualify Magu?

If Magu was indicted for keeping EFCC files, why was he promoted twice after the development? Is it usual to reward an erring Police Officer with promotion?

The other issue that is critical is the score card and performance of Magu. Can anybody fault Magu on the performance index? What are the available records, impressive or otherwise?

Above all, since sovereignty lies with the Nigerian people, what do the people want?

I dare say majority of Nigerians seem to be saying that they want Magu to continue as EFCC Chair. Has the senate as the representative of the people taken time to sample public opinion on this sensitive issue?

My final take is to say that the allegations in the security report should be thoroughly investigated and if Magu is found innocent, he should be made to resume the substantive position of EFCC chair because that will be the justice of the case.

However, if he is found guilty of any infractions after hearing his own side of the story, the law should of course take its course because even the Magu that I know believes that no one is above the law.

In conclusion, whether Magu or anyone else is appointed to the EFCC Chair, nothing should be done to derail the present war against corruption because ultimately our survival as a nation may very well depend on the successful prosecution of this war.

Shittu is a lawyer and a lecturer at the University of Lagos

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