Following the rejection, for the second time, of the nomination of Ibrahim Magu as the substantive chairman of the EFCC, there have been arguments whether, in the first place, the President required the Senate’s confirmation of the appointment.

The majority of opinions argue that the President does not require the Senate’s Commission. This view was supported by the Vice President, Prof Osinbajo, himself a senior lawyer. The Vice President was quoted as saying that “I’m fully in support of Magu as the EFCC chairman, just as the president is. It is up to the Senate to make their judgment. If our candidate is rejected… we can represent our candidate”. In a note of finality he enthused that “I fully agree with Falana that there was no need in the first place to have presented Mr Magu for confirmation”.

EFCC Act

Prof Ben Nwabueze; credit: Premium Times

Prof Nwabueze offered the most forceful opinion on the constitutionality of section 2(3) of the EFCC Act which requires the Senate confirmation of any person nominated for appointment as EFCC Chairman. He observed that “neither the Presidency nor the Senate appears to have addressed or even adverted to the critical constitutional issue whether the provision of section 2(3) subjecting the President’s appointment of members of the Commission to confirmation by the Senate is or is not in accord with the Constitution, the supreme law of the land, section 1(3) of which makes any inconsistent law null and void, and generally with the doctrine of the separation of powers underlying the Constitution”.

 

Posing the question, “what is executive power”, the learned professor took us through the content and nature of executive power in a federal system of government. On the basis of cases drawn from the United States jurisdiction (which has no force of precedent in Nigeria) he emphatically concluded that the requirement of Senate confirmation by the EFCC Act, though the said Act fell outside the “various executive functionaries… specified by the Constitution, is “on the authority of the decision of the U.S. Supreme Court in Myers v United States, supra, unconstitutional, null and void, subject to a qualification or restriction put on the meaning of “executive power” in the case of Humphrey v United States”. See the article at here

In relation to the United States jurisdiction, and, if placed in proper context, the position of the learned professor is unassailable. However, in the light of the matter at hand, that is the constitutionality of section 2(3) EFCC Act, it is difficult to agree with the conclusion he reached based “on the authority of the decision of the U.S. Supreme Court”. Thus with great respect, the views of the learned professor and other senior lawyers and academics who opposed the Senate confirmation, no matter how forceful, does not represent the true state of the law. Accordingly, the purpose of this rejoinder is to show, in the light of constitutional provisions, that indeed the confirmation of the Senate is constitutional and a condition for occupying the office of the Chairman of the Commission. Consequently, this rejoinder is divided into three parts. Part I briefly examined powers of the Federal Republic under the Constitution, Part II examined specifically constitutional provisions which permit Senate confirmation, and Part III concluded the paper. Any reference to the Constitution in this paper is reference to the Constitution of the Federal Republic of Nigeria, CAP C23, Laws of the Federation of Nigeria, 2004 (as amended).

1.1 Constitutional Powers of the Federation. The powers of the Federal Republic of Nigeria are couched in line with entrenched principles of separation of powers. On this, see Kadiya v. Lar & Ors (1983) LPELR-1643 (SC), where the Supreme Court held that the doctrine of separation of powers is the bulwark or anchor on which the survival of this nation as a nation must depend; and the English case of Duport Steels Ltd v Sirs (1980) 1 WLR 142, where Lord Diplock stated that the British constitution is firmly based upon the principles of separation of powers. Accordingly, there are legislative powers, executive powers and judicial powers. Section 4 of the Constitution allocated federal legislative powers to the National Assembly (NASS), involving power to make laws for the peace, order and good government of the Federation or any part thereof…”. Similarly, the Supreme Court had held that the NASS can exercise the powers which it does possess for the purpose of assisting in carrying out a policy which may affect matters which are directly within its legislative competence. It can also exercise powers, which it does possess for assisting in carrying out a policy, which may affect matters not directly within its legislative powers, per Ogwuegbu, JSC in AG, Ondo State v AG, Federation & Ors (2002) 6 SC [Pt.I] 1. In other words, there are qualifications to the exercise of legislative power by the NASS.

The constitutional qualifications to the exercise of legislative powers are four-fold. One, the laws which the NASS makes for the peace, order and good government of Nigeria must strictly comply with the provisions of the Constitution; two, the exercise of legislative powers must not be tainted with ouster clauses and thus must be subject to the jurisdiction of courts of law and judicial tribunals; three, no law made to have retroactive effect can be said to be for the peace, order and government of the country; and four, relative to the Constitution, any inconsistent provision in any law made by the NASS shall be void pro tanto. See sections 1(3) and 4(8), (9) of the Constitution. Of course the NASS is not only a law-making body, e.g., where it is efficient, the NASS is the constitutional whistleblower of the people.

Section 5 of the Constitution makes general provision as to the exercise of executive powers of the federation. The learned professor who began his enquiry “with section 5(1)(a) of the Constitution which says that “subject to the provisions of this Constitution the executive power of the Federation shall be vested in the President”, and observed that “the critical constitutional issue raised by s.2(3) of the EFCC Act is whether the subjection of the President’s appointment of members of the Commission to Senate confirmation is consistent with or is a derogation from section 5(1)(a) of the Constitution vesting the executive power of the Federation in the President”. In answer to the question, the learned professor concluded that, indeed section 2(3) of the EFCC Act derogates from the Constitution and, that being the case, is inconsistent to that extent. However, the learned professor apparently did not advert his mind to the entire or whole reading of the section 5(1)(a) of the Constitution. What did the section, considered in its entirety stipulate? Earlier we identified the qualification to the exercise of legislative powers of the federation by the NASS. In the same vein, the Constitution vests not only the executive powers in the President, but it spells out the basis for exercise of such powers. A careful reading showed that the President can validly exercise the executive powers of the federation subject to two qualifications.

In the first place, the President must exercise the powers subject to the provisions of the Constitution. On this, section 5(1) states “subject to the provisions of this Constitution…” and, for the avoidance of any doubt, reiterates in paragraph (a) of subsection (1) of section 5 that “the executive powers of the Federation shall be vested in the President and may, subject as aforesaid be…” The phrase “as aforesaid”, it is submitted, refers to the initial proviso in subsection (1), that is to say “subject to the provisions of this Constitution…” In the second place, the President, vested with executive powers of the Federation, can validly exercise such powers subject “to the provisions of any law made by the National Assembly”. This is pursuant to the second limb of the qualification to the exercise of executive powers in section 5(1)(a) of the Constitution. The learned professor failed to bring out this crucial element. Put in another way, the irreducible minimum conditions for the valid exercise of executive powers are that the President must exercise such powers in line with the Constitution and any law made by the National Assembly. Consequently, each time the President purports to wield executive powers of the Federation, he must do so in strict conformance with the Constitution or pursuant to the provisions of any law made by the NASS or both. Is the EFCC Act a law validly made by the NASS? And what does the provision of the Constitution tell us about the role of legislature in a democratic government?

Without doubt, the EFCC Act is a law validly made by the NASS. The courts have had to make pronouncements on the status of the EFCC, the validity of the provisions of the EFCC Act and consequently applied the provisions of the EFCC Act in the disposal of cases brought before it under the Act. For example, see the Supreme Court case in A.G., Abia v. A.G., Federation (2007) 6 NWLR (Pt.1029) 200 that confirmed the EFCC as an agency of the Federal Government established by an Act of the NASS; the Court of Appeal case in Adeyinka Ajiboye v. Federal Republic of Nigeria (2012) LPELR-15338 (CA) that upheld the constitutionality of section 40 of the EFCC Act; and Kalu v. F.R.N. & Ors (2016) LPELR-40108 (SC). By subjecting executive power to the provisions of any law made by the NASS, the Constitution, without constituting the NASS into a sovereign parliament, inviolably reinforces the role of the legislature in a democratic government; see Unongo v. Aku & Ors (1983) LPELR-3422 (SC). We dispose this point by clarifying that no one contests the submission of the learned professor that the inevitable incidence of the executive power donated to the President is the “power to appoint, direct and control government functionaries”. But the exercise of the executive power, whether direct or incidental, must be subject to the provisions of the Constitution and, where applicable, the provisions of any law made by the NASS. Consequently, it is submitted that there is nothing unusual or unconstitutional with section 2(3) of the EFCC Act, which prescribes the procedure for appointing the Chairman of the Commission. The executive does not have the liberty to blow hot and cold as to the provisions of the EFCC Act, by accepting the ‘benefits’, and disowning the ‘burdens’ of the Act.

Moreover, the judicial powers of the Federation are vested in the courts (section 6 of the Constitution). Subject to the non-justiciability of Chapter II of the Constitution dealing with the Fundamental Objectives and Directive Principles of State Policy, the content of judicial powers extends, despite anything to the contrary in the Constitution, to all inherent powers and sanctions of a court of law. The stability, and indeed continued existence, of the Federation lies in the proper exercise of judicial powers. In this regard, Fordham (2008:71) explains that the rule of law is a first principle of public law which, together the separation of powers, explains the constitutional imperative of judicial supervision of pubic authorities, through the Courts’ discharge of their… constitutional function”. According to Nwabueze (1993:17) this should be the case in a democratic society because “the limitations which the law of the constitution imposes upon legislative action cannot have much meaning or efficacy unless there is a separate procedure comprising a separate and independent agency and personnel for an authoritative interpretation and enforcement of them”. In other words, where the NASS, in furtherance of its legislative powers purports to make a law, the executive arm does not have the liberty to pick and choose the provisions of that law or, altogether, to refuse to execute the demands of that law. The only option open to the executive arm is to approach the independent agency, the court, for an interpretation of the powers of the legislature pursuant to the law in contention, in the context of this paper section 2(3) of the EFCC Act.

1.2 Offices requiring Senate Confirmation under the Constitution. The offices where the Constitution expressly provided for confirmation of the Senate includes sections 86(1) for Auditor General; 147(2) for Ministers; 153(1) and 154(2) for the Chairmen and members (save ex-officio members) of the bodies created by the Constitution; and 171(4) for Ambassadors. Accordingly, the learned professor and others (including Prof Osinbajo) appear to be insisting that since the EFCC is not a body created by or under the Constitution, the President should not be required to abide by section 2(3) of the EFCC Act. The only question falling to be considered is this: does section 2(3) of the EFCC Act constitute an encroachment into executive powers of the President? Or relative to the qualifications to the exercise of legislative powers of the federation, is section 2(3) of the EFCC Act inconsistent with the Constitution? The learned professor believed the section is an encroachment. With due respect, this position is legally tenuous. Without need to embark on the interpretive niceties of constitution, we tackle the question on two grounds, albeit there are many grounds to support the view that Senate confirmation is legal and constitutional.

One, the learned professor made copious reference to the US jurisdiction and relied on the decisions of the US courts to insist that the Senate consent is not required because the relevant section of the EFCC Act is inconsistent. Since the US jurisdiction formed the basis of the conclusions of the learned professor, it is important to ask whether all the offices for which the consent of the US Senate is required are expressly provided for in the US Constitution. That is, did the US Senate derive direct constitutional power to give consent to appointments to various offices involving certain independent agencies not created by the US Constitution? Examples include the Federal Deposit Insurance Corporation created by Federal Deposit Insurance Act which at section 2 thereof requires the consent of the US Senate as to the offices of Chairperson and Vice Chairperson; the National Institute of Building Sciences with 21 board members, six of whom are appointable by the President with the advice and consent of the Senate; and the five Commissioners of the Nuclear Regulatory Commission which pursuant to its establishment law, the Energy Reoorganisation Act empowers the President to make the appointment subject to confirmation by the Senate. The statutes creating these bodies, being enactments validly made by the US Congress are not different from the EFCC Act, a law validly made by the Nigerian legislature. Why should a different standard be applied in construing the provisions of the EFCC Act? Again, can there be an office of the Chairman of the EFCC without an EFCC (Establishment) Act? If the Senate had favourably disposed the nomination of the President, would the executive be contesting the constitutionality of section 2(3) of the Act? Any law, like the EFCC Act, validly made by the NASS receives the force of the Constitution. Thus any breach of that law by any person, natural or juristic, can be treated as a breach of the Constitution.

Two, in a nation with weak institutional systems, where the rule of law is dictated by the conscience of ‘Oga at the top’, where the functioning of the institutions is dependent on state manipulation or individual influence or both and where safeguard against arbitrariness and effective inhibition of class domination is lacking (Veitch, Christodoulidis & Farmer, 2007:231), it is not hard to discover the philosophy behind the requirement of Senate confirmation. As pointed out in my forthcoming book, Law and Creditor Protection in Nigeria, there are usually certain provisions of law which perform prophylactic roles. This is based on the premise that actuated by greed, passion and interest, man is prone to engage in self-destructive acts of Error. To check this, the law adopts the wisdom of fixing men to their duties to their principals, to their creditors, to their masters, and to the society. What the law does is to remove the temptation to Error that greed, passion and interest can set off in man. It tries to achieve this by crafting a legal rule imposing a duty that guards against the supervening of this mischief (Birks, 1989:332; Conaglen, 2010:62). With the gale of discoveries and recoveries of cash, which can best be described as bona vacantia (since ownership is doubtful), it is not hard to see the effects of such Error. Thus, aware that the spirit of our institutions may be willing but the body is pervasively weak, section 2(3) of the EFCC Act, performs the prophylactic role of fixing the President to reasonable exercise of his power to appoint the Chairman, and thereby prevent costly Error. Put differently, the NASS appears to be saying that the great wisdom which requires Senate confirmation is a noble one, and in the case of this specialised Agency, the EFCC, and if we desire to achieve the objects and purposes for which it is established and thus further peace, order and good government for our nation, the one vested with the power to appoint, if not superintended, may exercise the power capriciously to the detriment of the nation. To prevent against this, we have to take the trail, already blazed by the Constitution, by putting in place a sifting process to ensure that the one with the power to appoint does not do what he/she likes merely because he/she is minded to do so by appointing, for instance, just anybody agreeable to him/her, see Roberts v Hopwood (1925) AC 578.

1.3 Conclusion. Any federation, like Nigeria, created by bringing together distinct polities hopes for the development of a sense of national identify in order to strengthen the new union (Saunders, 2011:224). The best mechanism for pursuing the wisdom behind the formation of such a federation is the democratic system of government, ordered by separation of powers and driven by the rule of law. The principle of separation of powers emphasises interdependent relationship founded on mutual respect among the three arms of government. Problems arise if one arm constitutes itself into a bully and conducts itself in a way tending to suggest attempts by it “to usurp or impinge on the exclusive domain of the other as spelt out in the Constitution”, per Irikefe JSC in Kadiya v Lar & Ors. Rather than building the synergy needed for democracy to thrive, the actions and inactions of the key actors have been characterised by mutual distrust, influenced by base sentiments, and facilitated by pharisaic tendencies. By insisting that it acted in error ab initio and would no longer seek Senate confirmation of its nominee for the office of the Chairman of the EFCC, the executive commits two unpardonable sins in a representative government. Firstly, it acts in breach of extant laws of the land (the EFCC Act), and its views against the law are immaterial. Secondly, its act constitutes unbridled usurpation of the judicial powers of the Federation. In a nutshell, until the court exercises its constitutional power of judicial review and thereby makes a definitive pronouncement on the constitutionality or otherwise of section 2(3) of the EFCC Act, whoever occupies the office without the confirmation of the Senate can only do so validly in acting capacity. But how long can that be?

Friday O. ONAMSON, PhD, The Purehearts Law Consulting, Kaduna,

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