Convener Public Interest League And Managing Partner Mahmud Law Firm, Abdul Mahmud esq Creates a frequently asked question post to enlighten non-lawyers about the EFCC chairman confirmation debacle.
FaQ: Was yesterday’s rejection of Magu the end of the road for Mr President and for Magu?
Ans: NO. There is no limit to the powers of the President to Re-present Magu to the Senate for confirmation.
FaQ: What are the options left to Mr President?
Ans: Three options really. 1) PMB has to compel the SSS to write the Senate to withdraw its October 2016 Security Report on Magu; 2) The SSS must re-issue a new Security Report on Magu; 3) PMB has to lobby the Senate to confirm his appointee. Note here, that parliamentary confirmations are usually driven by politics.
Whatever options (as above) the President takes in the circumstances, the integrity of his office will be diminished.
FaQ: Is a third confirmation hearing unprecedentd?
Ans: No, it won’t be unprecedented. There is a parallel in our recent constitutional history. Recall that in 2004, Ministerial nominee for Education, Professor Babalola Aborishade, was rejected twice by the Senate. Following a third representation of his nomination he was confirmed by the Senate.
FaQ: Can the President allow Magu to function as his personal staff?
Ans: No. Recourse must be made to Section 2 (1) and (3) EFCC Act and not S.171 of the CFRN 1999 that Falana erroneously relied on when he asked the President to allow Magu to function in acting capacity.
For clarity, the Great Oracle sets out the provisions of both laws as follows:
Section 171 (1) and (2) of the CFRN 1999:
(1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President
(2) The offices to which this section applies are, namely-
(a) Secretary to the Government of the Federation
(b) Head of the Civil Service of the Federation
(c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad
(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and
(e) any office on the personal staff of the President
Query: Is the Chairman EFCC a personal staff of the President? No. See S.2(1)(a)(i) of the EFCC Act
Section 2 of the EFCC Act:
(1) The Commission shall consist of the following members-
(a) a Chairman who shall-
(i) be the chief executive and accounting officer of the Commission
(ii) be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Policeor equivalent; and
(iii) possesses not less than 15 years cognate experience.
From the foregoing, it is crystal clear that the Chairman is not on the personal staff of the President. To suggest he is, is to inflict incalculable violence on the Constitution and to appropriate the EFCC as an extension of the Office of the President thereby eroding the independence of the EFCC.
Femi Falana is wrong!
Section 2(3) EFCC Act
The Chairman and members of the Commission (including the DG SSS- see S.2(1)(e) of the EFCC Act- who is a member of the Commission) shall be appointed by the President and the appointment shall be subject to the confirmation of the Senate
FaQ: Can Magu remain in office having failed to secure confirmation?
Ans: Yes. Until the President exercises his power to remove under Section 3(2) of the EFCC Act, Magu can continue to his exercise his powers in an acting capacity. The Senate rejection of Magu does not render his appointment as Acting Chairman of the EFCC nurgatory.
But, the President must decide if it is in the interest of the Commission or in the interest of the public to keep Magu in an acting capacity as stipulated by Section 3(2) of the EFCC Act.
This is the Great Oracle’s last word on the Magu debacle.