EFCC Chair: Lawyers differ on Magu’s status

Senate has for the second time in three months rejected Ibrahim Magu’s nomination as the Economic and Financial Crimes Commission’s (EFCC) chairman. Can Magu continue in acting capacity after his rejection? TUNDE OYESINA asks

For weeks, controversies over what becomes the fate of the Economic and Financial Crimes Commission’s (EFCC) Acting Chairman, Ibrahim Magu after his rejection by the Senate had continued unabated. What does the law say about Magu’s rejection and his replacement?

Can President Muhammadu Buhari renominate Magu for the third time having being rejected twice by the Senate?

This had pitted lawyers against each other at the weekend as they could not agree on Magu’s legitimate role as the EFCC’s czar. Magu’s nomination to head the anti-graft agency in substantive capacity was rejected by the Senate, which predicated its decision on a secret investigation conducted on Magu’s integrity by the Department of State Services (DSS).

The DSS in Paragraph 14 of its report indicted Magu, insisting that the anti-graft czar was not fit to head the agency. It said Magu has failed integrity test.

“In the light of the foregoing, Magu has failed the integrity test,” it concluded. Magu took over EFCC leadership from Ibrahim Lamorde on November 9, 2015. His name was however forwarded to the Senate last year November for confirmation as the agency’s substantive chairman by President Muhammadu Buhari.

The Senate in turn specifically on December 15, 2016 rejected Magu’s nomination following the DSS’ report. Following his rejection, Buhari mandated the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN) to investigate the veracity of the claims made by the DSS in its secret investigation.

But thorough findings, the Justice Minister, however, in his report dismissed DSS’ report and gave Magu a clean bill of health. This clean bill of health on Magu by the Justice Minister compelled President Buhari to renominate the embattled EFCC’s chairman for the second time to the Senate for confirmation.

The re-nomination came exactly three months after he was initially rejected. Specifically, the Senate rejected Magu’s nomination for the second time based on another report written by the DSS.

The Senate had said that Magu should cease acting as the chairman of the anti-graft commission and a replacement should be sent by Mr. President for confirmation. Section 2 (3) of the Economic and Financial Crimes Commission (Establishment), Act Cap E17 LF, 2004 provides for how the chairman should be appointed.

The section says: “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 the confirmation of the Senate.” This section has however set lawyers against each other as they could not agree on its intendment on Magu’s case before the Senate.

For instance, Mr. Inibehe Effiong said that the section had obviously narrowed down the appointment of the Chairman of the Commission by the President to the concurrent list and the confirmation of the Senate as the EFCC (Establishment) Act did not expressly provide for the position of an Acting Chairman of the Commission but a substantive Chairman.

He however queried Mr. President’s powers to appoint an acting chairman for the Commission. Can Magu continue to exercise powers in acting capacity despite the rejection of his nomination, having regards to Section 2(3) of the EFCC (Establishment) Act quoted above? Effiong asked. He went on: “In resolving the twin issues formulated supra (above), the provisions of Section 11 of the Interpretation Act Cap. 123, Vol. 8, LFN, 2004 are apposite. For clarity and ease of reference, the said provisions are wholly reproduced infra (below): “11.

Appointment (1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes − (a) To appoint a person by name or to appoint the holder from time to time of a particular office; (b) To remove or suspend him; (c) Power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint− (i) To reappoint or reinstate him; (ii) To appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whose hand the power of appointment in question is vested.

(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respect to the functions of the office generally or the functions in regard to which he is appointed, as the case may be.”

Accordingly, Effiong said the decision of the Senate to reject the nomination of Magu for the position of substantive chairman of the EFCC has no upsetting consequence in law on his earlier appointment as the acting chairman of the EFCC by President Buhari on November 9, 2015, adding that the President had the requisite vires (powers) to appoint an acting chairman of the EFCC. But a Senior Advocate of Nigeria, Chief Mike Ozekhome disagreed.

He said the legal implication going by Section 2(3) of the EFCC Act implied that Magu had ceased to be the Executive Chairman, having left his “acting” position during his proposal to the Senate.

Ozekhome said: “He also loses his “acting” capacity. It is simply a bad case. The Senate is the only repository of confirmatory powers of the EFCC Chairman. And it has spoken. That is the beauty of the doctrine of separation of powers between the three arms of government, the executive, the legislature and the judiciary.

“Magu’s problem is self-inflicted from within the APC ruling party that is also not comfortable with the way he has carried on with his functions. It has nothing to do with efficiency alone, which he apparently possesses. The role of the anti-corruption Czar should also embody the finest and most edifying virtues in terms of observance of citizens’ fundamental rights and the allimportant rule of law of concept.

“The anti-corruption war has been fought in the most crude, bizarre, discriminatory and degrading manner that diminish the humanity of Nigerians and bring us back into the Hobesian state of nature where life was short, nasty and brutish.

“The anti-corruption fight has been fought in the most opaque, selective, bestial and humiliating manner, devoid of any scintilla or modicum of decency and respect for our collective and individual civil liberty and freedom.

“It has all but reduced Nigeria to a one Party state, with everyone decamping to APC because once you do that, you are immediately and automatically protected from the inquisition of EFCC.

It has been acting outside of and above the law, using detestable, unorthodox and extra-legal armtwisting tactics to intimidate and bamboozle hapless opponent, critics of government, opposition and critical voices of reason and dissention.

“Buhari cannot represent Magu’s name again because of the serious moral burden and ethical challenges thus imposed on him with a second definitive rejection this time after full screening.

It will raise more questions than answers as to why the insistence. This is unlike the first instance when Senate merely turned him down without screening.

“That it was done shortly after the celebrated arrival of President Buhari makes it more interesting and significant as it underlines the independence of the legislature, the Senate. It is high time President Muhammadu Buhari looked for another competent Nigerian out of about 180million people in population.”

Another lawyer, Kayode Ajulo in his reaction noted that by the extant provision of our Constitution, the Senate’s rejection of Magu, was the rejection by the entire Nigerians and what’s was expected was for the President to send another name out of 180million Nigerians to the Senate as the continuous sending of the same name was nothing but a mockery of the provisions of the law.

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