There is an ongoing debate as to the legality or otherwise of the continuous stay of Ibrahim Mustapha Magu as Acting Executive Chairman of the Economic and Financial Crimes Commission (EFCC) after the refusal of the Senate of the Federal Republic of Nigeria to confirm his appointment as requested by President Muhammadu Buhari.
While some are of the view that Magu can continue to act, others (inlucding yours sincerely) views his occupation of the office of the Chairman of EFCC in acting capacity as an aberration to the provision of the Act establishing the EFCC. In other words, this writer is of the opinion that by the provision of the EFCC Act, Mr. Magu’s appointment as Acting Chairman of EFCC is illegal, a nullity and of no any legal basis.
What I am saying is, to the best of my understanding of the EFCC Act, I am unable to find any legal basis upon which Mr. Magu’s appointment as acting Chairman of EFCC can be supported.
The provision of section 2 (3) of the EFFC Act vest sin the President of the Federal Republic of Nigeria, the power to appoint the Chairman and other members of the EFCC. However, the power of the President to make such appointment is subject to confirmation of the Senate of the Federal Republic of Nigeria. The sub section provides thus; “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.”
Therefore, the provision presupposes that any person (other than ex-officio) whom the President desire to appoint into the Board of EFCC, the President MUST seek the confirmation of Senate and it is only when the Senate approves the appointment that the power of the President to appoint will become operative.
I have seen the argument being canvassed by those who argue in favour of the legality of Acting Chairmanship of Magu, and with all respect, the argument cannot stand the test of law. The law upon which they base their argument is section 11 (1), particularly item ‘ii’ of subparagraph ‘c’ of the Interpretation Act. For clarity purpose, let me quote the provision here: “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, b, 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 whom the power of appointment in question is vested.’ There is no doubt that where an enactment confers power on any person to make appointment, such power also includes the power to appoint another person to act in place of the person so appointed. In other words, in relation to the topic of discussion, any person who has power to appoint Chairman of EFCC, also possesses the power to appoint acting chairman of EFCC.
However, it is important to note that power conferred by the above provision of the Interpretation Act, is only in cases where there is no contrary provision in the statute conferring the power to make the appointment. This means that where a statute confers the power to appoint a person in acting capacity in another person, this provision will not apply. Or where the law prohibits appointment in acting capacity, the provision will also not apply.
The question now is, in whom the power to appoint Chairman of EFCC resides? The answer is obvious. The power resides in the President of the Federal Republic of Nigeria and the person occupying that office today is President Muhammadu Buhari.
But one thing the proponents of the legality of the acting chairmanship of EFCC fail to take into consideration in advancing their argument is subparagraph (c) of the above provision. The paragraph clearly states that the power to appoint is to be exercised in the manner and subject to the limitation and conditions provided by the enabling statute. This therefore means that, in the exercise of the power to appoint Chairman of EFCC pursuant to Section 2 (3) of the EFCC Act, the President is expected to make the appointment in the manner so prescribed and subject to the limitation and condition (if any) provided there in.
One may ask whether the provision of the EFCC Act empowering the President prescribed the manner he is to make the appointment of EFCC Chairman. Does it prescribe condition to be fulfilled or has it set any limit to the exercise of the power.
There is no doubt the power of the President to appoint EFCC chairman is not absolute one. That power will remain inoperative until when the Senate has given its nod before the power can become active. In other words, the power of the President to appoint chairman of EFCC can only come into force when the Senate confirms the appointment. By this it means, the President has no power to appoint any person to act as chairman of EFCC pending confirmation of his appointment by the Senate. This is because the ‘appointment’ and ‘confirmation’, though two different activities but are for all intent and purpose of the legislation inseparable. Without the confirmation, a person cannot perform the function or enjoy the privilege of the office. In other words, the President exercise of his power to appoint Mr. Magu, is just the beginning of a journey into the office of the Chairman of EFCC: a journey that may, or may not, eventually, fructify, depending on whether or not the confirmation of the said appointment, as required by the Senate, is achieved.
This position finds judicial backing in the decision of the Court of Appeal in the case of Oyeyemi & Ors. Vs Owoeye & Anor. (2012) LPERLR-19695. In this case the court examined the extent of the powers of the Governor of Osun State to appoint Chairman and Members of the State Electoral Commission as provided under Section 189 of 1999 Constitution as (amended).
The trial Court nullified the appointment of the Chairman and Members of the OSIEC and directed them to vacate their position. This decision was arrived at despite the fact that the OSIEC members were not party to the case before the Court. On Appeal, the disbanded members of the OSIEC argued that they were not given fair hearing because they were not party to the case. The Court of Appeal held that as far as the Constitution is concerned, since their appointment was not confirmed by the State House of assembly. In the eyes of the law, they were not in existence hence issue of fair hearing is inapplicable in their case.
The court went further to say thus: “The section provides that: Except in the case of ex-officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to the confirmation by a resolution of the House of Assembly of the State. The implication of section 198 is that, although the Governor has the power to appoint suitable persons for the positions of Chairman, Secretary and Members, respectively, of the executive body in question; such appointments would remain inoperative until they are confirmed by a resolution of the House. In other words, the said appointments would remain inchoate until they receive the imprimatur of the House. The phrase “subject to” is always employed when the draftsman intends that certain provisions shall be conditional upon compliance with certain requirements in the provision referred to. In the context of section 198, the phrase “and the appointment shall be subject to the confirmation by a resolution of the House of Assembly of the State” is intended to subordinate the Governor’s power of appointment to the confirmation of the House. In other words, the endorsement of the House, by way of confirmation by a resolution, is a pre-condition to effectuating the Governor’s appointment. The above phrase has received so much judicial elucidation that its meaning can no longer be twisted by any form of verbal gymnastics. In effect, the requirement of the confirmation of the House is a hurdle, deliberately, erected by the Constitution to ensure checks and balances. In this instance, it is intended to afford the House the opportunity of scrutinizing the Governor’s nominees with a view to ensuring that persons so appointed are eligible to occupy the designated positions.” [italics for emphasis].
It is therefore my humble opinion that in the light of the above position of the Court of Appeal, as far as section 2 (3) of the EFFC Act is concerned, the power of the President to appoint Chairman of EFCC is ineffective unless it is approved by the Senate. That being the case, item (ii) of subparagraph (c) of the Interpretation Act is inapplicable in the appointment of the Chairman of EFCC.
My position will be understood more if cognizance is taken of Section 147 (2) of the 1999 Constitution (as amended) which empowers the President to appoint Ministers subject to confirmation of the Senate. Since that provision has clearly stated when the appointment powers of the President will become effective, that is why the President has never appointed any acting minister.
The rule of interpretation of law is that nobody should read into any law, what was not expressly stated in the any enactment. And I have checked the EFCC Act, but have not seen where any provision is made as to ‘Acting Chairman’ of the Commission. In fact, section 4 of the EFCC Act, clearly states how vacancy into the office of Chairman and other members of the Board is to be filled. That further put to rest advancing any argument with section 11 of interpretation Act to justify the continuous stay of Mr. Magu. This is because Section 1 of the Interpretation Act clearly states that its provision will only apply where there is no contrary provision in an enactment. Therefore, since the EFCC Act has clearly stated how vacant position is to be filled, Section 11 of the Interpretation Act is inapplicable.
And aside provision of the law, does it stand any logic for a person rejected by the confirming authority to sit and chair a Board with members whose appointment is confirmed? I doubt much.
Mr. Musa is an Abuja based lawyer