Constitutional lawyers, including members of the inner bar, have argued that in spite of the rejection of the nomination of Ibrahim Magu as chairman of the Economic and Financial Crimes Commission (EFCC) by the Senate, there was nothing in the laws of the land that prevents him from continuing in his acting capacity.
They spoke against the backdrop of yesterday’s rejection of Magu as the substantive chairman of EFCC by the Senate for a second time, following the Department of State Services’ (DSS) insistence that he was not fit to head the country’s anti-graft agency.
The DSS had in a third report it submitted to the Senate on Tuesday referred the lawmakers in the Red Chamber to an earlier report dated October 3, 2016 it sent to them, in which it stated that Magu failed integrity test and will eventually constitute a liability to the anti-corruption war of the current government.
Consequently, Magu was rejected by a majority of the Senate membership after some members of the upper chamber and the acting EFCC chairman traded hard tackles and insults in the course of his screening yesterday.
But some senior lawyers who spoke to LEADERSHIP yesterday maintained that Magu could be EFCC’s chairman in acting capacity, his rejection by the lawmakers notwithstanding.
While some of them insisted that President Muhammadu Buhari has constitutional power to re-present his nomination a third time to the senate for confirmation as substantive chairman of EFCC or allow him to remain as acting chairman pending his appointment, others however contended that it would amount to constitutional breach on the part of the president.
Lagos lawyer and human rights activist, Chief Femi Falana (SAN) specifically said the rejection of Magu by the senate was the height of official ridicule of the president’s office, just as it was illegal and a contravention of the Rules of the Senate which states that matters that are sub judice should not be discussed by the lawmakers.
Noting that Buhari could still resubmit his name for the third time because there are precedents to multiple representation of nomination by past presidents to the Senate, he recalled that ex-President Olusegun Obasanjo forwarded nomination of former Education Minister, Babalola Aborishade, to the senate several times until he was eventually confirmed.
Falana said, “The rejection of the nomination of Mr. Ibrahim Magu as the chairman of the Economic and Financial Crimes Commission (EFCC) this afternoon by the Senate on the basis of a security report compiled by the State Security Service is the height of official ridicule of the office of the President. It is high time the State Security Service was restrained by President Buhari from sabotaging the fight against corruption by the federal government
“With respect to the Senate, the confirmation hearing hurriedly conducted today is illegal in every material particular. The participation of many senators who are either under investigation or being prosecuted by the EFCC has vitiated the entire proceedings of the Senate on grounds of conflict of interest. It is also a contravention of the Rules of the Senate which stipulates that matters which are sub judice shall not be discussed by the Senate” Falana added.
He, however, noted that notwithstanding the rejection of the nomination of Magu by the Senate there were still options open to President Buhari that are clear and straight forward.
Listing the options, the learned silk said, “Mr. Magu’s nomination may be re-presented to the Senate if and when the Federal Government decides to put its house in order. Alternatively, the President may allow Mr. Magu to remain the Acting Chairman of the EFCC since he was appointed in that capacity pursuant to section 171 of the Constitution.
“But if the President is not satisfied with Mr. Magu’s performance he is at liberty to appoint another person whose nomination will be forwarded to the Senate in accordance with section 2 (3) of the EFCC Act, 2004.
“In the light of the foregoing, President Buhari is enjoined to ensure that the fight against corruption is not derailed by highly placed corrupt elements who have enlisted the support of fifth columnists and reactionary forces in the government”.
In the same vein, chairman of the Presidential Advisory Committee against Corruption, Prof. Itse Sagay (SAN), insisted that as long Magu is the choice of the president to head the commission, the lawmakers have no legal justification to dictate to him who to appoint.
According to him, no law in the country prevents Magu from doing the job in acting capacity, especially when the president has the power to appoint whosoever he feels like in an acting capacity.
The professor of law said, “They have no right under the constitution to tell the president the name of who he should submit. If that is who the President wants, that is the name he would submit.
“Their role is confirmation and not nomination or presentation. There is no law stopping Magu from acting in the position because the president has the power to appoint whosoever he wants in an acting capacity and there is no limitation of his powers in that regard.
“The worst the Senate can do is what they have done, they can not dictate that the President should submit another name. In my opinion, that rejection is perverse because you can’t reject someone who has an outstanding records of integrity, honesty and achievements.
“So, that rejection is transparently contrary to the interest of Nigeria and Nigerians. They know that he is an honest man and he has done excellently well in the fight against corruption, so the decision is perverse”, Sagay further maintained.
Another constitutional lawyer, Chief Mike Ozekhome (SAN) argued, however, that President Buhari can no longer represent Magu’s name because of the serious moral burden, ethical challenges and legal impediments imposed on him with this second definitive rejection.
Ozekhome, who cited sections 2(1) and 2(3) of the EFCC Act, insisted that Magu ceases to be the executive chairman of the commission, because having left his ‘acting’ position during his proposal to the Senate, he had also lost his ‘acting’ capacity.
He said, “Representing his name will raise more questions than answers as to why the insistence on one man. This is unlike the first instance when Senate merely turned him down without any screening.
“That it was done shortly after the celebrated arrival of President Buhari from his medical vacation makes it more interesting and more significant as it underlines the independence of the Legislature”.
On his part, another learned silk, Seyi Sowemimo (SAN), argued that Magu can not continue to function in the position of an acting chairman in the face of his rejection by the Senate because that position ought to be a temporary one.
“I think since he has been rejected the second time, the presidency will be in a fix. This is because the Senate is an institution on its own and its confirmation is required. Now, that they are rejecting the man for the second time, I think that is where the matter should end. If his rejection is based on the DSS security report, it means it is not something the president can override”, he stated.
Magu, Senators Trade Tackles Over Confirmation
Meanwhile, acting chairman of the EFCC, Ibrahim Magu and some Senators, yesterday engaged themselves in a verbal war over the confirmation of the former as substantive chairman of the anti-graft agency.
The confirmation hearing exercise was initially started in a friendly atmosphere, with Senator Shehu Sani jocularly telling Magu that “today is the Ides of March”, an indication that there were booby trap along his way.
It appeared as if Magu would scale the screening hurdle, after answering a wide range of questions at his confirmation hearing.
But all that changed the moment an APC Senator representing Kogi West, Dino Melaye, raised the issue of the SSS report dated March 14.
Dino specifically read paragraph 14 of the SSS report which states: “In the light of the foregoing, Magu has failed the integrity test and will eventually constitute a liability to the anti-corruption stand of the current government”.
In this regard, Magu questioned the credibility of the SSS, which he said dispatched two reports on him with varying contents the same day. “What do you say about credibility of that agency?” He queried.
He also recalled that himself and Dino were engaged in the war against corruption until Dino got to the senate and abandoned the course. “Dino and I were fighting corruption together until he got here and turned against us”.
The DSS had earlier submitted two contradictory reports to the Senate, one approving Mr. Magu’s confirmation and the other asking he be rejected. The Red Chamber then rejected Magu’s confirmation based on the one of the reports dated October 3, 2016.
President Muhammadu Buhari had in January resubmitted Mr. Magu’s name to the Senate for confirmation as EFCC chairman.
To this effect, Magu told the Senators that he was never invited by the DSS to defend the allegations against him. “There was no fair hearing”, he said.
As if the Senate was staging a drama already well-rehearsed, the lawmakers moved away from seemingly soft questions and turned questions relating to the DSS report.
Barnabas Gemade and Abiodun Olujimi, among others, asked Magu to defend his suitability and explain why he should be confirmed after “all these allegations”.
The fresh report was basically a reaffirmation of the earlier one, containing same allegations bordering on the nominee’s residence, relationship with Air Commodore Mohammed Umar (rtd) and past record as head of the EFCC’s economic governance unit.
Before the fresh DSS report was raised, Magu had absolved himself of culpability in respect to allegations in the earlier report.
“I would answer but I don’t want to say something that will cause bad relationship between sister agencies”, Magu said, explaining that he had responded to the allegations in writing.
Also on the allegation that he resides in a house rented for him by Mohammed Umar, a retired air commodore accused of corrupt practices, Mr. Magu said, “That’s not true”.
He said his official residence at Maitama was rented for him by the FCT authorities for ease of his work, following intervention of an undisclosed senior official in the presidency.
“I was not part of the process and I don’t know how much was paid. I don’t even know when the rent started or will expire”, he said.
Magu also told the lawmakers he could not specifically give the actual amount the EFCC had recovered to date.
After the questioning, the Senate President, Bukola Saraki, put Magu’s confirmation to a voice vote. Majority of the lawmakers responded ‘nay’ to his confirmation and the Senate rejected it accordingly.
DSS Report Won’t Stand Test Of Time – Magu
Meanwhile, acting chairman of the EFCC, Ibrahim Magu, declared yesterday that whether he is confirmed or not by the upper chamber of the National Assembly, the varying reports by the DSS on him will not stand the test of time.
Specifically, he noted that the conflicting security reports cannot stop his determination to fight corruption.
The anti-graft agency boss who also stated that the fight against corruption in the country was “a fight to the finish” pledged to work against graft until his last day in office.
Magu stated this while addressing some Civil Society Organizations who were gathered at the main entrance of the National Assembly to receive him immediately after his session with the Senators.
Asked whether he was threatened by the allegations against him by the DSS, Magu said, “Those allegations can not stand the test of time because these allegations can not be proven. You know you can’t just raise mere allegations without giving the person opportunity to answer you.
“There is the issue of fundamental human rights and right to fair hearing. Up till this time, the DSS has not called me and I am even surprised that the same report is coming back and this time around, it is even signed by somebody, which I doubt the genuineness of that report but I think we need to identify those who have the interest of this country at heart.
“What we are doing is to recover what has got lost before and protect the future of our children. So, if we don’t work today against corruption, the future of our children is not guaranteed. We must all wake up, wherever you find yourself fight corruption and anytime you discover that I am corrupt please expose me”.
On the way forward after his session with the senators, he said, “My piority is to fight corruption. My confirmation or not has not changed anything. I will work until the last day, whether confirmation or no confirmation.
“The greatest violation against human rights is crime against the society and humanity but everybody has a duty and responsibility to fight corruption and I also have a responsibility. I assure you that we will fight to finish”.
Speaking on behalf of the CSOs who gathered to recieve Magu, co-convener of Citizen Action To Take Back Nigeria (CATBAN), Comrade Ibrahim Garba Wala, said Nigerians and President Muhamnadu Buhari believe in the nomination of Magu as the chairman of EFCC and as such, the Senate has no choice.
Wala said their gathering to recieve Magu was part of activities to create awareness among Nigerians so as to enable them know the true position of what was happening.
“We are here in solidarity with the man we feel is the right man for the job and he should be confirmed. That is why we are here”, he said.
Reps Set To Establish EFCC Courts
Meanwhile, the House of Representatives yesterday passed for second reading, a Bill for an Act to amend the Economic and Financial Crimes Commission (EFCC) Act 2004 so as to provide for quick recovery procedure for stolen assets.
The amendment particularly seeks to create a special court for the EFCC, to handle all cases emanating from investigations carried out by the the commission.
According to the Bill sponsored by the member representing Aboh Mbaise/Ngor OkpalaHouse federal constituency of Imo state, Hon. Uchenna Eke, and three others, including, the Chairman, House committee on Financial Crimes, Hon. Kayode Oladele, the amendment will ensure independence and enhance effectiveness of the commission.
The court when established shall dispense within 180 days all cases properly filed before it and all appeals emanating from such cases shall also be dispensed within 90 days at the Courts of Appeal.
The court shall have divisions in the six geo-politcal zones in the federation and in the Federal Capital Territory (FCT).