This piece is a response to the above-mentioned article published on your platform on April 15, 2007. Prof. Ben Nwabueze is an erudite scholar, a legal colossus whose academic excellence and scholarship can never be in doubt.
As a prelude, I must say that I find the respected learned Professor’s argument on the above subject seriously flawed, wanting in seductiveness, misconceived and self-defeating. The critical constitutional issue he addressed is, whether the provision of section 2(3) of the EFCC Act 2004 subjecting the president’s appointment of members of the Commission to confirmation by the senate is consistent with section 5(1) (a) of the Constitution vesting executive power of the Federation on the President.
He cited the American case of Myer v. U S (1926) 272 U S 52, 93 and submitted that section 2(3) of the EFCC Act, requiring senate confirmation of appointment made by the president, is unconstitutional, null and void.
One of the main anchors of the learned Professor’s arguments is the principle of separation of powers by which legislative encroachment on executive functions is not allowed. He cited the case of Governor, Kaduna State v. The House of Assembly, Kaduna State as affirming the unconstitutionality of legislative encroachment on executive functions. Firstly, I agree with the learned professor on the need for strict adherence to the principles of separation of powers as in the Constitution, having in mind that the overall objective of the Constitution is to guarantee good government and development. In Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) p. 423, the court said:
The principle of separation of powers under the Constitution is meant to guarantee good governance and development and to prevent abuse of powers.
Thus, from the foregoing, the principle is not an end in itself but a means to an end. Montesquieu, the father of the doctrine of separation of powers, said: Political liberty is to be found when there is no abuse of power, but experience shows that everyone invested with powers is liable to abuse it and carry his authority as far as it will go.
In my respectful view, this statement forms the basis for extra precaution when appointing people to sensitive public offices. Any proposition that tend to down play the need for checks and balances in the operation of the principle of separation of powers is not only fallacious but dangerous to the democratic process and renders the process of democratic governance a sham.
On the crux of the matter which borders on the constitutionality of subjecting the president’s appointment to senate confirmation, the learned professor drew much strength from the American case of Myer v. US (supra). I find the reliance on this case, a desperate attempt to expand executive powers to unreasonable limit. The Myer’s case relates to removal from office of a public servant. The case at hand relates to appointment to an office. It is elementary that removal from office would not require much screening from any reasonable government than appointment to an office. In the process of appointment, power which Montesquieu said can corrupt absolutely is about to be invested on an individual, sometimes, with unknown antecedents for which reason, in my respectful view, we must even go beyond senate screening to psychiatrist examination.
Myer’s case does not apply to our local situation judging from the community reading of the relevant laws on the point. The misapplication of the Myer’s case, I believe, is one of the reasons the court said in Adegbenro v. A G Federation (1962) 2 SCNLR 130, that in determining the validity of an Act of parliament, we should not look beyond the provisions of our Constitution. There is danger, sometimes, in using interpretation of another country’s Constitution or law as a basis for interpreting our Constitution. We should not follow bandwagon and forcefully interpret our Constitution to suit popular ideas.
Even when we cannot go outside our Constitution to find answer to a constitutional problem, we are not permitted to interpret the Constitution strictly as we do with an Act of Parliament, see Awolowo v. Shagari (1979) 6 – 9 SC 51; Alamieyeseigha v. FRN (2006) 16 NWLR (pt. 1004) 1; Rabiu v. State (1980) 8 – 11 SC 130; A G Bendel State V. AG Federation (1981) 10 SC 1 at 77; Bronik Motors v. Wema Bank Ltd (1983) 1 SCNLR 296. There is nothing in section 5(1) of the Constitution that requires section 2(3) of the EFCC Act be read into extinction. For a provision of an Act of the National Assembly to be unconstitutional, it must clearly be so because it must be interpreted as it is. See AG Bendel State v. AG Federation & Ors (supra); see also AG Federation v. Atiku Abubakar (2007) 10 NWLR (pt. 1041) p. 1.
Lastly, it is the learned professors contention that in section 2(3) of the EFCC Act, the word appointment was used instead of nomination suggesting that the appointment by the president is already full blown. The simple question here is, why would the parliament who chose to use the word appointment instead of nomination go further to require senate confirmation in the provision? Does that not suggest their intention that the appointment without senate confirmation is not full blown? In AG Federation v. Atiku Abubakar, the court said:
Words are the common signs that mankind make use of to decide their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.
In any case, I am surprised that the learned professor, in submitting that the appointment is not full blown, considers the words “appointment” and “nomination” within the context of section 2 (3) of the EFCC Act, which he said is unconstitutional, as one of his strong points. I must say that it is not very clear what the learned professor wants to achieve. In National Assembly v. President FRN (2002 – 2003) 2 LLRN p. 897; Bendel State v. A G Federation (1981) 3 NCLR 1; Adegbenro v. AG Federation (1962) 2 SCNLR 130, the courts have insisted that a person challenging the constitutionality of an Act of the National Assembly, (by extension, a provision such as S. 2(3) of the EFCC Act), must show that he has lost something or suffered injury or he is about to.
Nigerians, including the learned professor, have much to gain and nothing to lose when public office holders are properly screened before they assume positions of great responsibilities. Screening of certain public office holders is a constitutional ideal in Nigeria that must be encouraged. The Constitution recognises the screening of some public office holders, (which the learned professor also acknowledged). This, in my view, is because of the sensitive nature of those offices and functions. The office of the chairman and members of the EFCC apparently must fall under that category. Thus section 2(3) of the EFCC Act is within the spirit and intendment of the Constitution and cannot therefore be unconstitutional.
In conclusion, it is my respectful view that the Presidency is on the right path sending the appointment of the EFCC chairman to the senate for confirmation. Legal requirement must be complied with when there is no clear constitutional issue against it. It will be a great disservice to this country for any court of law to hold that section 2 (3) of the EFCC Act, which encourages the proper screening of persons to manage the affair of that sensitive government agency, is unconstitutional.
Basil Momodu Esq.
Legal Research and Law Publishing