The issue is quite clear. Until the president says otherwise, it is reasonably deducible that the president’s already appointed acting chairman (Magu) will continue in that capacity.
The controversy surrounding the senate’s rejection of Ibrahim Magu as substantive chairman of the Economic and Financial Crimes Commission (EFCC), is still raging like a wild fire in harmattan. Obviously, there are issues of particular interest in the ongoing saga which need to be properly addressed. Issues such as the legal implications of the decision of the Senate and how all parties should move forward in the circumstances, are begging for attention.
The uncertainty of Magu’s present status and the actual effect of the Senate decision, as well as how the presidency must move forward, represent the biggest questions in this confirmation conundrum. The earlier some clarity can be reached, the sooner we can turn the page on this episode.
Perhaps, the most pressing of these issues is the immediate clarification of Magu’s status, following the Senate’s decision not to confirm him as substantive EFCC chairman. Although lawyers seem to always be in disagreement over legal issues, it appears that, in this particular instance, the debate is occasioned by a lacuna in the law concerning the position of the acting chairman of the EFCC. Some leading lawyers like J.B Daudu (SAN), are of the opinion that Magu’s power to act as chairman of the EFCC under any capacity, was terminated once the Senate rejected his confirmation as substantive chairman. In Daudu’s view, any continued engagement by Magu as acting chairman is an illegality and a new acting chairman ought to have emerged immediately following his rejection.
Another eminent legal mind, Prof. Itse Sagay, who heads President Buhari’s advisory committee on the war against corruption, has given a completely different interpretation. He stated that Magu can serve on as chairman at the president’s pleasure. Some others have said that the president can ignore the Senate altogether and keep Magu as substantive chairman, regardless of their decision.
The EFCC Establishment Act 2004 expressly provides that the chairman of the EFCC has to be confirmed by the Senate. Section 2 (3) of the Act provides that 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”. There is no mistaking the fact that the Act makes the Senate confirmation a condition precedent to the legal appointment of a chairman of the EFCC. What the Act does not state, however, is the procedure for appointing an acting chairman, or how long a person may continue as an acting chairman before a substantive one is appointed or confirmed.
…if the president wishes to keep Magu on in his acting capacity until there is a resolution or a new appointee, he would be doing so within the law. Section 11 (1) (c) (ii) of the Interpretation Act states that the power of an appointing authority also includes power to appoint a person to act in place of a substantive appointee…
Unlike the provision of Section 231 (5) of the 1999 Constitution (as amended) for example, regarding acting Chief Justices of Nigeria and the three-month maximum period a person shall act in that role, there is no such provision in the EFCC Act or anywhere else concerning acting chairmen of the EFCC. As such, appointments or discontinuance of the functions of acting chairmen of the EFCC, is exclusively at the president’s discretion as the appointing authority. In this case, the Senate has rejected Magu as substantive chairman, which leaves the Commission in need of someone to continue to act until a time when a decision can be made about a substantive chairman.
As such, if the president wishes to keep Magu on in his acting capacity until there is a resolution or a new appointee, he would be doing so within the law. Section 11 (1) (c) (ii) of the Interpretation Act states that the power of an appointing authority also includes power to appoint a person to act in place of a substantive appointee “…during such time as is considered expedient by the (appointing) authority…” The issue is quite clear. Until the president says otherwise, it is reasonably deducible that the president’s already appointed acting chairman (Magu) will continue in that capacity.
The Senate cannot willy-nilly decline to confirm an appointee. It has to give reasons for the decision. We need to examine the reasonability and weight of the reason for the rejection. The Senate based its decision on a report by the Department of State Service (DSS), adjudging Magu as lacking in integrity for the role he was picked for. Truly, the DSS ought to provide security clearance for nominees and appointees for public office by way of reports revealing anything of interest that the Senate ought to know about a nominee or appointee. What the DSS ought not to do is to reach any conclusion or pass any “verdict” as it appears to have done in this case. It may very well make recommendations, but the conclusions and decisions ought to be left to the Senate. In this case, the Senate’s decision cannot be sustained by the substance, if any, of the report it relied on.
As if the report of the DSS declaring Magu unfit for the office of EFCC Chairman was not fishy enough, it also turned out that there exists an almost identical report by the same DSS addressed to the Special Assistant to the President on National Assembly Matters. The only difference is that the DSS recommendation in that report favoured the confirmation of Magu as EFCC Chairman regardless of its findings due to his excellent performance.
The Senate was in receipt of the two contradictory DSS reports. How then can the Senate justify its decision one way or the other, in the face of contradictory reports? It does not appear that the Senate ever pressed the DSS for explanations for the contradictory reports as should have been the case. Instead, the senators capitalised and made the decision which may have been most favourable to them and their ways. It has been reported that the Senate’s decision not to confirm Magu was, in fact, because of the contradiction, not despite it. In any case, there is room to make amend.
Certainly, both the DSS and the Senate must have bungled this confirmation episode. Nothing stops the resubmission of Magu’s name after the present “issues” have been addressed. The people are no longer sitting aloof with the wool over their eyes. We are all watching and keen to see that things are done right…
Furthermore, one can say Magu has been cleared of the allegations raised in the report, such as the issue of withholding sensitive Commission documents back in 2008. He has since received promotions and been reassigned to the Commission, demonstrating an acceptance of his explanations at the time. The very act of digging up this old, settled bone, casts doubts on the motive of the DSS and the Senate that based their rejection on the resultant report(s). The allegation in the report of accepting payments for his accommodation from one Commodore Umar Mohammed, who is being investigated, has also been debunked by documentary evidence that shows that the Federal Capital Territory Administration (FCTA) was responsible for the payments.
It is also noteworthy that the same Umar Mohammed was closely associated with the president himself and appointed to some of the president’s committees. Surely, the president too must have integrity issues for having ever associated with the man. This is exactly the reasoning of the DSS in citing Magu’s flying in Umar’s private plane as evidence of an integrity challenge, even as investigations of Umar Mohammed are only a recent development.
All in all, the entire episode smacks of a shoddily put together operation to discredit Magu and get him out of the way. It is left now for the Senate and presidency to step back and approach the issue properly. The starting point should be a formal communication by the Senate to the presidency stating its decision and the reason for it clearly. The existence of the contradictory reports alone gives the presidency a ground to write back, questioning the decision. The Senate and/or the presidency, also needs to task the DSS to explain the contradictory reports, directing that a proper final assessment and report be forwarded, putting in mind the recent developments and evidence concerning the allegations in the initial report(s).
Certainly, both the DSS and the Senate must have bungled this confirmation episode. Nothing stops the resubmission of Magu’s name after the present “issues” have been addressed. The people are no longer sitting aloof with the wool over their eyes. We are all watching and keen to see that things are done right and an end is put to the politics of vested interests and personal vendettas.
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