By Professor Ben Nwabueze
The appointment of Ibrahim Magu as Chairman of the EFCC has been before the Senate for confirmation two times now, and has been twice rejected. Amazingly, 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) of the EFCC Act 2004 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. The issue as to what constitutes violation of the doctrine is thus also raised.
The exact terms of section 2(3) of the EFCC Act are significant and worthy of note. It says: “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 confirmation of the Senate.” The word appointment is underlined to emphasise that it is the appointment, not the nomination, that is subject to Senate confirmation, from which it follows that Senate confirmation is not a condition precedent to the validity of the appointment.
Our inquiry must begin 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.” This provision is reinforced by section 130(2), which designates the President, “the Chief Executive of the Federation.” 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.
This raises the issue: what is executive power, or rather what is its nature or extent? Or more explicitly, what functions are embraced in it? The term “executive power” may be defined, first and foremost, by reference to functions that partake indisputably of execution. Such, for example, is the doing or execution of physical acts, e.g. construction works, provision of infrastructural facilities or welfare services, other activities involving physical action, like the conduct of military operations, the minting of coins, the printing of currency notes and stamps, and the award of contracts for such works. Interference with such functions by the Legislative Assembly is unconstitutional and void. The decision of the Kaduna State High Court in a case in 1981 (Governor, Kaduna State v. The House of Assembly, Kaduna State) affirms the unconstitutionality of legislative encroachment on a function in this category – the award of contracts for works to be done or services to be provided.
Also embraced indisputably within the domain of executive power is pure administration, i.e., purely administrative work within the executive departments not involving physical action in the sense mentioned above. This, too, cannot be controlled by the legislature, subject to what is said below about purely administrative or ministerial functions of a quasi-legislauve or quasi-judicial nature entrusted to an agency created by statute.
Executive power embraces not only activities involving physical action or pure administration, but also the making of instruments as a means of carrying the provisions of a law into execution. Legislative power is meant for use in prescribing rules of general and uniform application to persons and things, whereas the application of those rules to individual cases, whether by means of executive instruments or judicial decrees, is inappropriate to its true nature. Furthermore, by the explicit stipulation of the Constitution, legislative power is exercisable only by means of bills (section 58(1)).
Accordingly, in the case mentioned above, the Kaduna State High Court also held unconstitutional and void, a law by which the State House of Assembly transferred to itself powers of the governor exercisable by executive instruments or orders under the State’s Local Government Law, viz: power to create individual, named local governments with designated capitals, to constitute an emirate or traditional council for an emirate or traditional area and to prescribe for it the device of its seal, the composition of its governing council, its area of authority with detailed demarcation of boundaries; power to order an inquiry into the affairs of a local government council, and following upon such inquiry, to dissolve the council and either appoint a committee of management or order an election.
One more illustrative example of a function distinctly executive in nature may be mentioned. The organising and planning of celebrations to mark the anniversary of an event of great national importance pertains peculiarly to executive power; there is nothing legislative or judicial about it. It belongs therefore exclusively in the domain of the executive. Comity needed for fostering a harmonious relationship between the two political organs may well demand that the executive consult and involve the legislature in planning and organising such celebrations, but the demands of comity must not be confused with or be elevated to a constitutional requirement.
But the issue as to what functions are embraced in executive power has arisen in a most acute form with respect to the power to appoint and remove government functionaries. The argument in favour of the President’s position is predicated upon an unassaillable and conclusive rationale, namely, that the power to execute the government of a country, including the execution of the law of its constitution and other laws, carries with it, as a necessary and inevitable incident, power to appoint, direct and control government functionaries of various grades.
For, it is not to be supposed that the President is to execute the government alone, unaided by subordinates appointed by him and who are subject to his control and direction. The power to remove such subordinates is equally an essential incident of the executive power as the power to appoint them in the first instance, removal being an instrument of control of last resort, since otherwise the president might be saddled, to the prejudice of his administration, with subordinates whom he could not remove, notwithstanding that they are disloyal, incompetent or otherwise unfit.
The power to appoint, direct, control and remove subordinate executive assistants is thus cardinal to executive power, and pertains exclusively to it, subject, however, to any restrictions contained in the constitution, as noted below. “To turn a man out of office,” said Oliver Ellsworth, later Chief Justice of the United States, “is an exercise neither of legislative nor of judicial power.” It partakes peculiarly of the nature of executive power. Similarly, “designating the man to fill an office,” James Madison, fourth President of the U. S., has said, “is of an executive nature.” The statements of both Oliver Ellsworth and James Madison were quoted with approval by the Court in Myers v. United States (1926) 272 US 52, 93.
The attempt by the Congress of the United States to control the exercise by the President of power to remove subordinate executive personnel appointed by him, as part of the executive power vested in him by the Constitution (Article 2 Section 1), became a major constitutional issue before the country’s Supreme Court in the celebrated case of Myers v. United States (1926), supra. By an Act of Congress of 1876, the consent of Senate was made requisite for the removal by the President of postmasters of the first, second and third grades.
Myers, a first-class postmaster, was removed from his office by the president without the consent of the Senate, and he sued for arrears of salary on the ground that, the consent of the Senate not having been obtained as required by the Act, his removal was wrongful. Whilst the Constitution makes the power of appointment expressly subject to confirmation of the president’s nomination by Congress, the removal power is not. The requirement of Senate consent for removal was accordingly declared null and void as an unconstitutional interference with the president’s executive power.
As regards the appointment power too, the U.S. Supreme Court stated emphatically that the qualification in favour of the legislature, i.e., the requirement of Senate approval, should not be extended outside the cases in respect of which the approval of the Senate is explicitly required by the constitution, as by requiring Senate approval in respect of other appointments or by super-adding the approval of the House of Representatives.
The appointments or nominations for appointment for which the approval of the Senate is required by the Constitution of Nigeria (1999) are those of ministers (section 147(2)), auditor-general (section 86(1)), the chairmen and members of certain named bodies established by the Constitution other than ex officio members (sections 153(1) and 154(2), ambassadors, high commissioners or other principal representatives of Nigeria abroad (section 171(4)).
There are certain enactments in the country, e.g. the EFCC Act, that require Senate approval for the appointment of various executive functionaries outside those specified by the Constitution; such enactments are, 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, infra. The sanction of nullity also applies to enactments at the State level which require the confirmation of the House of Assembly for the appointment of certain executive functionaries, not within the qualification or restriction noted above.