Categories
Information News

Saga of Magu Confirmation

Inibehe Effiong
Barrister Inibehe Effiong

On Thursday December 15, 2016 the Senate of the Federal Republic of Nigeria held an executive session during which it rejected the nomination of Mr. Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC) by President Muhammadu Buhari based on an adverse ‘’security report’’ authored by the State Security Service (SSS).

Unsurprisingly, the decision of the Senate has triggered controversy on whether Mr. Magu can validly continue in his capacity as the Acting Chairman of the EFCC in the light of the disapproving decision of the Senate. This intervention seeks to offer clarification on the issue based on the enabling and relevant legal authorities.

On the mode of appointing the Chairman of the Commission, the relevant statutory provision is Section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act Cap. E17 LFN , 2004. It 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 the confirmation of the Senate.’’

The above provision subjects the appointment of the Chairman of the Commission by the President to the concurrence and confirmation of the Senate. We submit that the EFCC (Establishment) Act does not expressly provide for the position of an Acting Chairman of the Commission, it only provides for a substantive Chairman.

Flowing from the above, two issues necessarily arise for determination:

Where does the President derive the power to appoint an Acting Chairman of the Commission?; and
Can Magu continue to act as the Acting Chairman of the Commission despite the rejection of his nomination, having regards to Section 2(3) of the EFCC (Establishment) Act quoted above?

In resolving the twin issues formulated supra (above), the provisions of Section 11 of the Interpretation Act Cap. 123, Vol. 8, LFN, 2004 are apposite. For clarity and ease of reference, the said provisions are wholly reproduced infra (below):

11. Appointment

(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) power to appoint a person by name or to appoint the holder from time to time of a particular office;

(b) power to remove or suspend him;

(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.

(2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.

Before proceeding to examine the ramifications and effect of the elaborate provisions above, it should be borne in mind that the Interpretation Act is a special piece of legislation that gives direction on the meaning of words, expressions and interpretation of the provisions of all other laws enacted by the legislature. Where there is an interpretative lacuna or controversy in a statute regarding the meaning and application of certain words, expressions and or provisions, the Interpretation Act is usually resorted to by the courts for succor.

It is our firm contention that the President has the requisite vires (powers) to appoint an Acting Chairman of the EFCC. We reference Section 11(1)(c)(ii) of the Interpretation Act in support. The said provision has clothed the President with the authority to appoint another person to act in the place of a substantive Chairman of the EFCC. Unlike the appointment of a substantive Chairman which requires the confirmation of the Senate, the President does not need the confirmation of the Senate to appoint an Acting Chairman of the Commission.

On the second issue, we submit that the decision of the Senate to reject the nomination of Magu for the position of substantive Chairman of the EFCC has no upsetting consequence in law on his earlier appointment as the Acting Chairman of the EFCC by President Buhari on November 9, 2015.

The Interpretation Act does not specify the term of office or period for which the acting chairmanship is to subsist. Section 11(1)(c)(ii) of the Interpretation Act seems to give the appointing authority the discretion to determine how long the acting or temporary appointee is to serve. This reasoning appears inevitable given the use of the expression ‘’during such time as is considered expedient by the authority in whom the power of appointment in question is vested’’ in the cited provision.

It is an elementary principle of statutory interpretation that where the words and expressions used in a statute are clear and unambiguous, they must be given their natural and ordinary meanings unless to do so would lead to absurdity or inconsistency with the rest of the statute. See the recent decision of the Supreme Court in Okoye v. C.O.P. (2015) 17 NWLR (Pt. 1488) 276 at 320. The expression ‘’during such time as is considered expedient by the authority in whom the power of appointment in question is vested’’ is clear and unambiguous.

In the instant case, the President is the appointing authority under Section 2(3) of the EFCC (Establishment) Act. He is the person vested with power under Section 11 of the Interpretation Act to appoint an Acting Chairman in lieu (in the absence of) of a substantive chairman. Accordingly, Mr. Magu will continue to act as the chairman of the EFCC if his retention is considered expedient by President Buhari. It does not lie in the mouth of the Senate to say what is expedient in the circumstance. The parameters for determining the expediency of Magu’s continued acting leadership of the EFCC belongs to President Buhari.

However, we submit that there are two identifiable limitations or exceptions to the power of the appointing authority under Section 11 of the Interpretation Act to determine the duration or tenure of a person appointed in an acting capacity based on what is considered expedient by the appointing authority. These exceptions will be shown using the present case of Ibrahim Magu.

First, we submit that Magu cannot legally serve in an acting capacity BEYOND the term permissible for a substantive chairman of the Commission. Section 3(1) of the EFCC (Establishment) Act states that ‘’the Chairman and members of the Commission other than ex-officio members shall hold office for a period of four years and may be re-appointed for a further term of four years and no more.’’ It would be absurd for anyone to suggest that a person who is appointed in an acting capacity can serve in that capacity beyond the statutorily allowable tenure for the substantive appointee. The President’s power to appoint an Acting Chairman of the EFCC under Section 11 of the Interpretation Act is derivable from and only incidental to his power to appoint a substantive Chairman under Section 2(3) of the EFCC (Establishment) Act. Therefore, Magu cannot continue in his acting capacity beyond the four years term (in the first instance) allowed for a substantive Chairman.

Second, it is our humble view that Magu’s tenure as the Acting Chairman of the Commission MUST BE LESS THAN the four years period stipulated for a substantive Chairman. The gravamen of this contention is that the words ‘act’ and ‘acting’ when used in relation to a position, by their ordinary grammatical and juristic meaning presupposes a state or status of temporariness as opposed to permanency. Few dictionary definitions will suffice. The Interpretation Act does not define ‘act’ or ‘acting’. The Oxford Advanced Learners Dictionary, 6th edition, page 11 defines ‘acting’ as ‘’Doing the work of another person for a short time…’’. Law Guide, (www.thelaw.com) an online legal source, defines ‘acting’ as ‘’Temporary performance. Frequently referring to a temporary position performing and carrying out the duties of an office without actually holding the position.’’ Lastly, the Merriam-Webster Dictionary, online version, variously defines ‘acting’ as ‘’performing a job for a short time’’ and ‘’holding a temporary rank or position’’.

Does the law give recognition and effect to dictionary definition of words in the interpretation of statutes? The answer is in the affirmative. Reference is made to a recent decision of the Court of Appeal in Alechenu v. University of Jos (2015) 1 NWLR (Pt. 1440) 333 at 361, paras. C-D, where the appellate court, per BDLIYA, J.C.A., held inter alia: ‘’Where words used in a Statute are not defined therein, a resort to the dictionary meaning of such words is permissible…’’

The totality of the above exposition is that a person who is appointed into a position in an acting capacity cannot exhaust or complete the full term of that office or position. A person can either be appointed in an acting capacity to complete the remainder term of the substantive appointee whose office has become vacant either by reason of death, resignation, removal or for other cause OR to occupy the position temporarily pending when a substantive appointment is made. Anything other than this is legally indefensible.

The legal implications of the two exceptions espoused above are that Mr. Magu can continue in his position as the Acting Chairman of the EFCC at the pleasure of President Buhari. However, the President in deciding the expediency for the continued retention of Mr. Magu in an acting capacity must ensure that Magu’s acting tenure does not exceed, but is actually less than the four years period stipulated in Section 3(1) of the EFCC (Establishment) Act.

As a postscript, the President is at liberty to re-submit Magu’s name to the Senate for re-consideration and possible confirmation. The Senate’s decision whether to accept or reject the nomination is absolute, provided same is done in conformity with the constitutional requirement for quorum and the Standing Orders of the Senate.

The fight against corruption in Nigeria is being trivialized. President Buhari should bear in mind that if he fails in his anti-corruption campaign, he has failed in everything. It is indeed a tragic irony that the very infamous Senator Bukola Saraki-led Senate, with all its scandals and embarrassing pedigree, is lecturing President Buhari on corruption.

The fact that the alleged indicting security report which formed the fulcrum upon which the Senate acted in rejecting Magu’s nomination was authored by the SSS, an agency under the presidency, loudly evinces the apparent lack of coordination and effective leadership in the country. It is either President Buhari is not in charge of his government or he is trying to use corruption to fight corruption.

The troubling message from this unsettling scenario is that Nigeria is far from being salvaged. We can only hope that the evil forces in the corridors of power will not completely pollute and destroy our nation.

Thank you.

Inibehe Effiong is a Lagos based Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD) and can be reached at: inibehe.effiong@gmail.com

 

Categories
Information News

A Time for Every Purpose

Away from Body and/or Mind
Now if in the last several months you have been away from Nigeria, temporarily vacated your sense of surroundings, or both, would it not be pardonable to wonder what the hullabaloo in the press and the country has been about? Much ado about Salami, you may think.
But is it just Salami? Or could there be much untold behind the torpid appearance of the beast before us? Perhaps a short exercise in time travel may be instructive, first to discover the provenance of the caricature before we try to analyse and/or understand it. Follow me; starting from the first to the last:

Justice (rtd.) Isa Ayo Salami

  1. The Chief Justice of Nigeria (CJN) attempts to promote the President of the Court of Appeal (PCA) to the Supreme Court.
  2. The latter cries foul, protests publicly, and goes to court with a sworn affidavit, alleging high-level gross misconduct.
  3. Panels are constituted by the Nigerian Bar Association (NBA) and the National Judicial Council (NJC).
  4. The former and the latter reach opposing and irreconcilable conclusions.
  5. The NBA indicts the CJN for misconduct and overreaching the limits of his office
  6. The NJC indicts the PCA for perjury and recommends his immediate suspension, and subsequent dismissal.
  7. The President of Nigeria concurs with the NJC, authorising the suspension.
  8. Nigeria is agog!

But why? The matters at hand are not beyond the comprehension of even laypersons in our society, the issues can be analysed by any reasonably educated and logical mind. Let us examine the tealeaves, beginning with the one on top.

… continuation

 

Judiciary on the Precipice.

1). CJN attempts to promote PCA
Now why would such an altruistic move by the CJN be rebuffed by the PCA, after all it could be said that the Supreme Court is the pinnacle of aspiration and career for any professional in the Nigerian judiciary. The CJN is not obliged to offer such prized elevations to any judge. In recognising Salami’s contribution to the judiciary, the CJN had demonstrated leadership and patriotism, and an unfailing commitment to the Nigeria project; even in the last hours of his tenure.
But was this a Greek gift, did the silk robe conceal an unsheathed sword? From the grapevine we discover that Salami was by-passed for promotion to the Supreme Court because of federal character. After taking advice from senior judges that he respected, Salami apparently made the decision to work the path towards PCA rather than queue up behind his juniors in the Supreme Court. The offer of a seat in the Supreme Court, from his perspective, would therefore amount to a demotion rather than a promotion. The CJN should have known, and empathised with this fact.
Secondly, in the Court of Appeal, Salami had the liberty to shape and nurture a select core of next generation lawyers within his fiefdom in the disciplines that made names for the likes of Kayode Eso, Chukwudifu Oputa, Andrews Obaseki and others – simplicity, honesty, diligence, courage and personal conviction. But then that is just one side of the coin, others would say that Salami was more Fagin to their artful dodger, and that he was actually grooming his proteges in the finer arts of duplicity and sophistry.

2). PCA raises an alarm
One should not be surprised that the PCA resisted the elevation; leaving corruption aside, there is greater prestige in being the PCA than in assuming facelessness in the Supreme Court. More so, as the image of the judiciary in Nigeria today is at an all time low. Supreme Court judges are held in the same low esteem as most of the rest of the judiciary. In fact, when recently (in the media), Nigerians have talked of the judiciary being the last bastion of the nation, they often referred to the actions of the Appeal Court, and not the Supreme Court. Since the 12 2/3 case, it would appear, to most Nigerians, that the Supreme Court, in composition and general standing, has been on a downward spiral.
So, whether for prestige, or to avoid the stigma of the Supreme Court, the CJN’s offer would be a poison chalice to the PCA. But then again, it is just possible that, unknown to Nigerians, the PCA had cornered the market on large settlements for favourable judgement in the Appeal Court, and the CJN, having the best interests of Nigeria at heart decided to break up the party for Salami and his merry men. Yea or Nay, I guess one would need to examine the antecedents of Salami, his lifestyle, colleague/peer opinions and his present economic circumstance in order to gain an inkling on what the truth is.

3). NBA and NJC constitute panels
You would have expected that these august bodies would come together and form one panel, or at least consult each other and then save face with a press release explaining the need for two “linked” panels. But perhaps the composition and aspirations of these groups are so different that their horses cannot be watered from the same trough. The NBA and NJC, in theory, should include some of the best minds and the most esteemed lawyers should be counted in their gatherings, one therefore wonders why such intelligent, distinguished and mature persons, could not even agree to cooperate in an investigation that impinges on all! The question that comes to mind is this: is not the same law that they practise?

4). The panels disagree on cause and fault!
But what were these panels constituted for? What was their remit? Was it to adjudicate/rule or provide opinion on the matter? What was the mandate given to each, and was there any overlap, or perhaps the matter involved such legal technicalities that only the cognoscenti could begin to comprehend it. To the common man, there appeared to be no disagreement in the scope that would justify the contradiction in the panels’ pronouncement. So, what could be so complex and subjective about the events that transpired, and the interpretation of same in the light of the laws of Nigeria. Given the experience of those appointed to the panels, could the details be so complex and subjective that they not only disagree, but that the outcomes from both panels are irreconciliable. Further, the root cause analysis differs, and the interpretation of conduct disagrees; but the laws from which these conclusions were synthesised are the same!

 

life_and_death_2
 

The Emporor’s Clothes.

5). NBA indicts the CJN
In what would turn out to be a half-hearted attempt to deal with a major issue that threatens the nation, the NBA arrives at a verdict that identifies a culprit, and immediately lets him off with a reprimand and a disagreeable letter. The NBA indicted the CJN for misconduct and overreaching the limits of his office, they also identified two collaborators.
But they should have gone further and recommended sanctions against the CJN for abuse of office, and taken action against the two lawyers accused alongside the CJN for aiding and abetting him. If this man was guilty, he had brought the judiciary into disrepute and the sword should not have been sheathed; his ox should have been gored, mauled, or whatever befit the occasion. Also, his accomplices should have been sanctioned, so far as the constitution allows the NBA to, and the NBA should have supported this with the sternest language – it was an opportunity lost! But then, maybe those who live in glass houses have learnt not to throw stones. On reflection and retrospection, the NBA may have recognised that far worse offences had gone by without so much as a blink of the eye. Better not to make a scene, and attract the community to one’s moral nakedness.

6). NJC indicts the PCA
The NJC responded with a judgement of its own. Now, one would have expected a CJN who is indicted by everyday lawyers to have stepped down voluntarily, especially as his term was almost up, and to retain some shreds of dignity, in what appears, on the surface to be some indiscretion on his part. Nevertheless, pride/dignity seemed a distant concern in the battle at hand, and so the NJC responded with its own broadside, indicting the PCA for perjury.
The stakes were suddenly much higher! The NJC also recommended that the PCA be suspended and dismissed from the judiciary for not apologising to the CJN when told to do so.
But they should have gone further. If the PCA perjured himself, it is a criminal offence and must not be swept under the carpet. He should be charged to court and the full weight of the law brought to bear on him with due punishment to serve as deterrent to others. All the other judges that sat on the compromised tribunals should likewise be dismissed and the lawyers that colluded with said judges should be disbarred. In the fight for a New Nigeria, these crimes tear at the very foundations of our society and they must not be allowed to lie, rather they must, as a matter of priority be rooted out. So it was a shock and a sick joke for the NJC to have asked the PCA to apologise and so to end the matter. Fortunately for Nigeria, he did not, and now, maybe we will have an opportunity to hear the truth in a competent court. Yet how could the courts act? The NJC sat and deliberated in contempt of court, so it would be something of an abormality to return to the court to put the seal on a fait accompli! Then again, pigs have been known to fly in Nigeria.

7). President concurs with NJC
In a press release issued by the Office of the president, the executive acceded to the request of the NJC, and that, within a few days of said request being received!
Given the sensitivity of the matter at hand, the precariousness of the security situation in the country, and the pressing problems of political and social disconnect caused by the last elections, one would have expected the presidency to give very deep thought to the matters at hand. The national interest must be of the highest priority in making a decision, even if not for posterity, then for the present peace and stability for the many millions that inhabit the country today. It was vital that the president be seen to be impartial, in the face of personal interest; after all, the man at the centre of the controversy had been involved in a number of judgements given against the president’s party.
Justice they say, must not only be done, it must be seen to be done. President Jonathan should have taken time out to think and consider such a weighty issue, perhaps even to pray. It appears he didn’t. To avoid a perception of conflict of personal interest and for the sakes of national security, the president should have commissioned his most trusted aides to research the issue, and for the sake of Nigeria today and tomorrow, find out the facts. Mr president should also have consulted broadly, involving the legislature, whose support he would need, if the PCA were to be dismissed; and he should have sounded out some of respected elders in the legal community. Finally, having decided on a course of action, the president should have ensured that from A to Z, the constitution was observed, to the letter. In essence act decisively but holistically, not for a palliative but rather towards a panacea. Mr president did not prevaricate, but was the decision holistic and was it a good first step towards a lasting solution?

8). Nigerians react
The Nobel laureate, Wole Soyinka, in his 1972 book “The Man Died…” issued a famous quotable, to wit, “The man dies in all who keep silent in the face of tyranny.” For all the alleged timidity of Nigerians, our fear is not so deep that people refrain from complaining, when the government of the day is perceived to be acting against the national interest as seen by the masses. In some cases, the complaining may be reduced to murmuring, as sometimes happens under military regimes when speaking has become hazardous to health. We thank God that is not the case today in Nigeria. And so the people spoke, and very few were in support of the president’s decision. Notable lawyers, the NBA, the Nigeria Labour Council (NLC), the main opposition parties, people from all walks of life, both home and abroad; all spoke against what was generally perceived as a travesty. The Office of the president was undeterred.
Meanwhile, the NJC, yet fulminating, continued to breathe threats against the PCA. This “inbred” body, with the majority appointed by the CJN, a party to the dispute, was not bothered that its initial action and ongoing pronouncements were in contempt of an existing case before a competent court. The third arm of government had arrived at the zero game, and they did not even know it. Following the disastrous outing of the UK and the USA in Iraq, Tony Blair opined that history would be the judge of what they did in that country; whether good or bad. The president may like to take the same line; perhaps history will indeed say differently, but Mr president must hope that history is not a few months away as in the case of Mr Blair, and that the folly of his actions does not become apparent in the very immediate future.
Philosophers are grounded in a truth that the executive would benefit from learning: that it is hard to know better than the man, what is good for the man, and it is not often the case that leaders know better than the people on matters that impinge on their daily lives in fundamental ways. But then what is our duty as the people, citizens of Nigeria; at a time like this? We cannot afford to keep quiet, while the axe is swung relentlessly at the foundation of our home, our silence will not stop the attacks on the pillars that hold us up. We therefore need to complain loudly and publicly, we should not let this be swept under the carpet nor forgotten out of hand; we must press the case, and see that proper justice is done either way. To keep quiet now would be to regret at leisure and with pain.

God bless Nigeria.
Giwanruwa@NewNigeria.com

Remember; if you are not part of the solution, then you must be part of the problem.

Time is now to step forward and be counted.
>>Register Your Opinion!<<

 

new_nigeria_banner