By Clifford Ndujihe, Henry Umoru, Dapo Akinrefon, Charles Kumolu, Ikechukwu Nnochiri, Wahab Abdullah & Gbenga Oke
THE Senate’s Wednesday’s rejection of Mr Ibrahim Magu as chairman of the Economic and Financial Crimes Commission, EFCC, is eliciting mixed views in the polity. Opinions are divided on whether or not Magu can be re-nomiated by President Muhammadu Buhari for the post; whether he can still function as acting chairman of the EFCC; and implications of the decision for the anti-graft war.
DSS sabotaging anti-graft war – Falana
Mr Femi Falana said: “The rejection of the nomination of Mr. Ibrahim Magu as the Chairman of the EFCC 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 ground 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.
“However, notwithstanding the rejection of the nomination of Mr. Magu by the Senate the options open to President are clear and straight forward. They are as follows:
” 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.”
Senate cannot direct Magu to hands off, but can reject confirmation—Olanipekun
Prominent lawyer, Chief Wole Olanipekun, SAN, said: “I do not want to be quoted incorrectly, I do not want to go into the politics or otherwise of the appointment. Under the constitution of the Federal Republic of Nigeria, the Senate has the power to either reject or confirm, and once the Senate rejects, that is the end of the matter. But the Senate does not have the power to direct any other person to assume office in acting capacity or in the interim to fill in the gap. That is the function of the executive. All the Senate can do is to say we reject or we confirm. It has concluded its own constitutional duties by rejecting the confirmation.
“What the President can do is for him to appoint somebody in the interim pending when he will send a fresh nominee to the Senate. All what the Senate could do is to say, Mr President, we are expecting your new nomination. That is all.
“To me as a Nigerian and a lawyer, the Presidency should put its house in order because if you look at what is happening, the DSS is under the Presidency, so also the EFCC nominee, so a house divided against itself cannot stand. If the DSS indicted Magu for the second time, there is more to it. The President should this time shop for somebody that will be accepted by the Senate.”
President should nominate another person—Fashanu
Mr Babatunde Fashanu, SAN, said : “The appointment of the EFCC chairman is under Section 2(3) of the EFCC Act not Section 171 (2) of the CFRN 1999, so it is subject to Senate confirmation.It does not come under Section 171 (2) of the 1999 Constitution as amended at all. This is because his office is a creation of statute which provides for his appointment and removal. The EFCC Act just says that the appointment is subject to the confirmation of the Senate but silent on how many times the President can re-appoint or re-present his name before the Senate for confirmation. However, it would be politically naïve for the Presidency to represent him for further confirmation having done that twice. He should pick another person and send his or her name to the Senate for confirmation. I am not ruling out the fact that the President can still appoint him in acting capacity.”
We must not allow the issue derail the fight against corruption – Yusuf Ali
Leading lawyer, Malam Yusuf Ali, SAN, said: “My position is that the Constitution has donated power to the Senate to confirm or reject his appointment. The National Assembly has that power no doubt, the Senate for the second time running has rejected him based on the report of another security arm of government. My view is that Nigeria does not lack credible, hard working and intelligent men. We should not give the impression that it is only one man that can do something. For me, we should move on, Nigeria is larger than all of us. So, we should not treat the issue as if we did not appoint someone, Nigeria will come to an end. We should not allow the issue to derail us from the fight against corruption.”
Magu can be re-nominated—Sagay
Chairman of the Presidential Advisory Committee on Corruption, Professor Itse Sagay, SAN, said despite Magu’s rejection by the Senate, he could still be re-nomiated by the President.
“He can be re-nominated because as the case is, the rejection has no basis. Magu has performed excellently well as acting chairman of the EFCC. This is a man that has helped Nigeria in the reduction of financial crimes in the country to its bearest minimum and I believe we are going to make progress under him. The members of the Senate know that he has performed excellently but that sort of pervasion will not stop Magu from oeprating as acting chairman of the EFCC.”
President should look for another nominee – Afenifere
The Pan-Yoruba socio-political organisation, Afenifere, called on the President to look for another nominee, who would sustain the integrity of the anti-graft crusade.
Afenifere’s National Publicity Secretary, Mr Yinka Odumakin said: “It is baffling that the Presidency could forward Magu again after he was rejected based on a security report. It would have been tenable if the DSS report was withdrawn before he was represented. As it is, the government has to look for another nominee to save the integrity of the anti-gtaft crusade.”
It’ll impact negatively on anti-corruption fight—Adeniran
Executive Chairman of the Centre for Anti-Corruption and Open Leadership, CACOL, Mr. Debo Adeniran, said: “It is rather unfortunate that Magu who has performed marvelously well within the very short period he has been acting as Chairman of EFCC had to be given this ‘Ides of March’ treatment by a pack of people, who are apparently incurably corrupt. It is a tragedy that these elements have been able to use the country’s hallowed chambers to frustrate the appointment of a man who has made more landmark achievements in the anti-corruption drive than his predecessors. They have just practically used the legislative arm and its sanctity in the bid to shield themselves from judicial consequences.
“The greater consequence of all this is that the impact of the Senate’s illogical decision will impact negatively on the anti-corruption drive. And again, whoever is now nominated after Magu will also be confronted with this situation which will certainly discourage incorrigible men of honour, integrity and capacity from accepting to play the patriotic role of serving as EFCC Chairman. With the attitude of the Senate, it may take only a man who is ready to ‘play the ball’ a little to get confirmed as the Chairman of EFCC.”
I don’t think Magu should continue – Babatope
Former Minister of Transport, Chief Ebenezer Babatope, opined that in view of the circumstances surrounding the rejection of Magu, he should not continue as the acting chairman of the agency. “I think the best thing for Magu is stop continuing as acting chairman. At this present moment, we cannot quarrel with the Senate that has refused to confirm his appointment. However, I don’t think he should continue in the acting capacity at EFCC.”
The President should present another personality – Maeba
Senator Lee Maeba, said: “The Senate acts on intelligence and they said Magu is not worthy of the position especially with the DSS report on him. Since Magu even took over, he has been prosecuting only PDP members and to him, no APC member is corrupt. Even the President cannot armtwist the Senate on this. So, the President will have no option than to send another name to the Senate. So the Presidency should stop re-presenting Magu”.
The EFCC is being weakened gradually by the cabals – Mohammed
Second Republic Lawmaker, Dr Junaid Mohammed, said:“My concern over the rejection of Magu is that EFCC, as an institution is being weakened by the corrupt people hiding under the name of the President. Nations are made by institutions and such institutions should be strong enough to withstand any assault and attempt to undermine it. I do not know much about Magu, but I think he will be a better Chairman at EFCC. There are people in the Presidency who are working day and night to ensure that EFCC is hijacked and some are working tirelessly to ensure that EFCC is under their control.
“I believe Magu has not been fairly treated. If he was denied fair hearing on the basis of the DSS report, then EFCC and other institutions fighting corruption have lost their relevance.”
Why Buhari can’t re-nominate Magu again – SANs
Some senior legal practitioners in the country, have given reasons President Buhari cannot re-nominate Mr. Ibrahim Magu for confirmation as substantive chairman of the EFCC after being rejected twice by the Senate.
In his reaction titled: ‘The legal and moral issues of the second and final rejection of confirmation of Magu as EFCC Chairman’, Chief Mike Ozekhome, SAN, said: “Going by sections 2(1) and 2(3) of the EFCC Act, he (Magu) ceases to be the Executive Chairman of the commission.
“Having left his ‘acting’ position during his proposal to the Senate, he also loses his ‘acting’ capacity.
“It is simply a bad case.The Senate is the only repository of confirmatory powers of the EFCC Chairman. And it has spoken. That is the beauty of the doctrine of separation of powers between the three Arms of government, the Executive, the legislature and the judiciary, as ably propounded by Baron De Montesque in 1748.”
“Magu’s problem is self-inflicted from within the APC ruling party itself, that is also not comfortable with the way he has carried on with his functions.The worm that kills the maize is right inside the maize. His tenure should have nothing to do with efficiency and effectiveness alone, which he apparently possesses.The role of the number one anti-Corruption Czar should be more. It should also embody the finest and most edifying virtues of nobility in terms of observance of citizens’ fundamental rights and the all important rule of law concept.”
Mr. Sebastian Hon, SAN, said: “I have always maintained that Senate confirmation hearings are not jamborees but are weighty constitutional exercises requiring deep public interest considerations on the part of the Upper Chamber.
“The framers of our Constitution did not insert this sine qua non for the appointment of certain categories of public officers just for the fun of it; rather the legislative mischief is to ensure checks and balances so that Nigeria will not at any given time have a despotic President who will be riding rough shod on the national psyche and consequently be toying with our commonwealth.
“I don’t subscribe to the insinuation that 109 eminent Nigerians sitting in the Upper Legislative Chambers, coming from different political and cultural persuasions, will act twice in unison for no justifiable reason.
“In this case, damning reports have twice been written by the DSS against the person of Mr. Magu, which reports constituted the fons et origo (source) of Senate’s twin rejection of Mr. Magu.
“While I personally believe Mr. Magu has done exceptionally well, deserving of confirmation by the Senate, I lack the moral justification to insist that the DSS which has far more investigative reach than me is only playing games or is being economical with the truth by twice moving against his confirmation. Let me boldly say that if the DSS and the Senate are acting in some insidious conspiracy, Nigeria is finished! I will, indeed, warn the two regulatory bodies that there is nothing hidden that will one day not be exposed, supposing they playing such games!
“Having sounded that note of warning, however, I will strongly counsel Mr. President not to present Mr. Magu again for confirmation.”
On his part, Mr. Kayode Ajulo said: “By the extant provision of our Constitution, the senate rejection of Magu, is the rejection by entire Nigerians and what is expected is for the President to send another name out of 160 million Nigerians to the Senate because the continuous sending of the same name is mockery of the provisions of our law.”