By Soni Daniel, Northern Region Editor
ABUJA—The Presidency, yesterday, clarified its position on why it has continued to send names of officials for appointment into key Federal Government agencies, boards and parastatals to the Senate for confirmation, despite arguing that certain categories of officers do not need the upper chamber’s endorsement.
A top official of the Presidency, who spoke in confidence with Vanguard, said the Federal Government was still reliant on the position given by the Chief Judge of the Federation when he ruled in a previous case that “wherever and whenever the constitution speaks, any provision of an Act/Statute, on the same subject matter, must remain silent.”
The senior administration official disclosed that the action of the Presidency was predicated on a legal advisory prepared by judicial and legal experts as a working document in the Presidency regarding the differences in the constitutional interpretations on matters of certain federal appointments.
The source said the advisory unearthed a ruling of the Supreme Court on the matter where the current Chief Justice of the Federation, before his elevation as CJN, had ruled in line with the view of the Presidency on the matter.
He pointed out that it was not accurate to say the the Presidency has started to act unilaterally on its own interpretation of Section 171.
He said: “This is because, even after the Acting President (who spoke when he was Vice President in support of the view of some leading lawyers) the Presidency has continued to send nominations to the Senate both while the President himself was around and while away by the Acting President.”
“Since the time the Acting President spoke and when Senate recently expressed its disagreement “we have been sending nominations severally including into the INEC and other boards and commissions. So we are clearly not acting unilaterally based on our own interpretation of the law, even though we believe firmly we are right.
“The Presidency believes that Section 171 is clear that certain appointments do not require Senate consent, but the presidency is not already behaving as if it’s interpretation of the law has become a policy.
“The Presidency is persuaded that its interpretation is the correct one, but we are conscious and aware of the fact that only a proper judicial ruling on the matter would make it a settled policy that sits right with the rule of law.
‘’That is why we have not stopped sending all manner of nominations to the Senate, most of which the Senate has actually confirmed, even well after the Acting President spoke.
“In fact, the conclusion of the legal advisory on the matter is very clear that a judicial pronouncement preferably by the Supreme Court is what will settle the matter.’’
According to that legal advisory, “the divergent positions being held by the executive and the legislature on the subject of confirmation …is one that requires timely and ultimate resolution. Such resolution could only be reached through judicial process…Such interpretation would lay to rest the lingering crises between the two arms.”
Concerning the issue of the Acting EFCC Chairman, the legal advisory also concluded that “the rumblings in the discourse on the confirmation of the EFCC chairman have more to do with politics that with the law.”
The advisory, which affirms the powers of the President to appoint in an acting capacity into positions such as the EFCC chairmanship, also notes that “in the recent past, the ministerial nomination of Late Prof. Abraham Babalola Borishade (Ekiti State) by President Olusegun Obasanjo was rejected repeatedly by the Senate.
‘’In fact it would be recalled that this particular nomination was presented four times in 18 months before it was eventually confirmed by the Senate.’’
The advisory continued: “This position is because of the long established and entrenched principle of law that any legislation that is inconsistent with the provision of the Constitution is null and void and of no effect whatsoever to the extent of such inconsistency. (See the Supreme Court cases of DR. OLUBUKOLA ABUBAKAR SARAKI v. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40013 (SC) and CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR-40053 (SC).
In the case CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (Supra), Walter Samuel Nkanu Onnoghen, who today is the Chief Justice of the Federation, held, at page 19, paragraph C that –
“The time honoured principle of law is that wherever and whenever the Constitution speaks any provision of an Act/Statute, on the same subject matter, must remain silent.”