Let me start by according respect and due deference to the legal giant Prof. Itse Sagay, a colossus in the law of Contract to the extent that he was awarded silk; Chief Femi Falana SAN, erudite in human rights enforcement and; Chief J.S. Okutepa SAN who has been prosecuting errant lawyers for the maintenance of sanity in the Bar.
This trio however made propositions to the effect that despite the provisions of Section 2 (3) of the Economic and Financial Crimes Commission Act, the President could proceed to appoint Ibrahim Magu as the substantive chairman of the EFCC pursuant to Section 171 of the Constitution without any recourse to the Senate.
Their contention is that the EFCC is an extra ministerial department of the Ministry of Justice because Section 43 of the EFCC Act empowers the Honourable Attorney General of the Federation (HAGF) to make regulation for the Commission and because of this, the appointment of a substantive Chairman could be done by compliance to Section 171 of the Constitution only.
I, however, hold a different view and I feel the need to reproduce them for the records in view of the wide circulation that the proposition seems to be making.
First, EFCC is a creation of statute. 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 office of HAGF like you have the office of the Director of Public Prosecution or Director Civil Litigation, etc. Otherwise we will contend the same for every agency empowered to investigate and prosecute varied crimes. Thus, powers to make a regulation for an agency of government derived from a statute distinct from the ordinary powers vested in the office of the HAGF with regards to the running of the Ministry of Justice. And it does not render the agency a department in the Ministry of Justice. Nowhere in the Act will one find any reference to the EFCC as a department of the Ministry of Justice. Our view is further strengthened by the provision spelling out the composition of the EFCC. One will find that the Ministry of Justice, alongside the Ministries of 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 which the president is to exercise his powers under Section 171 of the Constitution. This is because a Constitution is not meant to encompass every provision of the law and it is inconceivable for a person to contend that a procedural provision for the exercise of every appointment under Section 171 of the Constitution must be contained therein otherwise it is unenforceable or even is unconstitutional.
Further, by Section 171 of the Constitution, the power to appoint heads of extra ministerial departments in either acting and substantive positions are distinct so that whilst there might not be need to comply with subsidiary legislation in respect to the appointment of a person in acting capacity, owing to the fact that the appointment could arise owing to death, incapacitation of a substantive appointee, expiration of tenure or other unforeseen circumstances that could render compliance with the procedure for appointment of substantive occupant impracticable. It could not be said that this practical need to avoid a vacuum in appointment in acting capacity could render the requirement for compliance with specialised procedure in respect of appointment of persons who are to occupy the substantive post an affront to the powers of the President under section 171 of the Constitution as to render the specialised provision in the establishment Act.
There are some Commissions that the appointment of their heads are regulated by statutes establishing them, and 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. This could be because the Companies and Allied Matters Act were enacted when there was no legislative arm of government or because it was considered legislatively inexpedient to insert the requirement of senatorial confirmation for the Director General of the Corporate Affairs Commission. But there are other such extra ministerial agencies that require not only the Senate’s confirmation but also require that the appointees to possess specialised qualifications beyond the federal character requirement in Section 171 of the Constitution. The Pension Reform Act is one such example. Could we, by logical reasoning contend that the additional qualifications of the occupants of these offices, not incorporated in the constitution becomes unconstitutional and void? I respectfully think not.
If the proposition of this trio is the position of law, 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 to the current HAGF as it portrays him in bad light. It suggests that the current HAGF is incompetent or is not at home with his duties in respect of advising the President on the manner to exercise his powers under section 171 of the Constitution owing to the “misadvise” given to the President to send the name of Magu to the Senate for confirmation as substantive Chairman of EFCC. Before him, mighty Kanu Agabi SAN did advise President Obasanjo to nominate Nuhu Ribadu as pioneer Chairman of the Commission in compliance with Section 2 (3) of the EFCC Act, 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 is right. This is all the moreso that precedents have been set in respect of the manner in which a substantive chairman of the EFCC is to be appointed.
The President cannot be advised to stop following this precedent now unless he obtains an order of court setting aside Section 2 (3) of the EFCC Act. The advice that the step already taken 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 President himself has conceded that his powers in Section 171 of the Constitution be so rendered.
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 in Acts of the National Assembly signed by the President requiring the President to obtain Senate’s confirmation are unconstitutional.
Whilst we support the President in his quest to fight corruption, we should ensure the fight is done in strict compliance with the law.
The motto is not get it by all means but get it by abiding by the due process of the law.
I so respectfully submit.
Barrister Rafindadi is Abuja-based lawyer