…..says Senate has powers to confirm his nomination by Buhari
By Ikechukwu Nnochiri
The Abuja Division of the Federal High Court, on Wednesday, declined to declare the continued stay of Mr. Ibrahim Magu as the Acting Chairman of the Economic and Financial Crimes Commission, EFCC, as illegal and unconstitutional.
However, the court, in a judgement delivered by Justice Ijeoma Ojukwu, said it was a mandatory requirement of the law that President Muhammadu Buhari’s nomination of Magu as substantive head of the anti-graft agency must be subject to confirmation and validation by the Senate.
It held that EFCC is not an extra-Ministerial department of the Federal Government and as such, the law provided that anyone nominated as its Chairman by the President must pass through necessary “checks and balances” by the Senate.
According to the court, whereas section 171 of the 1999 Constitution, as amended, granted the President powers to appoint heads of extra-Ministerial departments at his pleasure, section 2(3) of the EFCC Act, 2004, made it compulsory that any nomination to EFCC Chairmanship position must be screened by the Senate to satisfy the interest of the public.
“Public interest is very paramount in the appointment of any person to head to the EFCC”, Justice Ojukwu held, noting that there was a lacuna in the law since section 2(3) of the EFCC Act did not put a limitation to President Buhari’s powers to retain Magu in acting capacity.
“The lacuna has given the President the proverbial knife and the yam to do as he pleases”, Justice Ojukwu noted, saying there was need for a renewed consciousness that laws must be implemented in accordance with public interest and not exploited to install Magu in substantive capacity.
The court delivered judgments on five separate suits that bordered on the legality or otherwise of Magu’s continued stay in office as Acting Chairman of the EFCC, despite twice rejection of his nomination by the Senate under the 8th National Assembly.
While two of the suits which were in Magu’s favour, contended that President Buhari ought not have transmitted his nomination to the Senate for confirmation, three other plaintiffs prayed the court to declare that his tenure as acting head of the anti-graft agency expired the moment the Senate rejected his nomination for the second time.
The pro-Magu litigants, Mr. Chijioke Kanu and Mr. Jubril Okutekpa, SAN, argued that transmission of Magu’s nomination to the Senate for screening was in breach of section 171 of the Constitution, insisting that EFCC is an extra-ministerial department of the federal government.
However, the anti-Magu litigants who are equally lawyers and human right activists- Mr. Jideobi Johnmary, Ahmed Tijani and Wale Balogun- maintained that he was not a fit and proper person to head the agency since he was twice rejected by the Senate based on an adverse security report from the Department of State Service, DSS.
They separately urged the court to among other things, declare that by combined provisions of section 2(3) of the EFCC Act, 2004 and section 11 of the Interpretation Act, Magu could not continue to parade or hold out himself as Acting Chairman of the EFCC, his nomination having been twice rejected by the Senate.
Besides, they sought for an order to restrain President Buhari from re-nominating him, as well as an order stopping Senate from accepting or acting on such re-nomination when made.
They argued that the moment his nomination was rejected for the second time by the Senate, he could no longer be re-appointed in any capacity at the agency.
One of the plaintiffs, Tijani, told the court that the Senate had on the day it expressly rejected Magu’s nomination for the second time, relied on a security report by the DSS that he “failed integrity test and will be a liability to the anti-corruption fight”.
The second plaintiff, Johnmary, argued that the period the constitution allowed Magu to stay in office in Acting capacity had elapsed, noting that he was appointed since 2015 and acted for almost a year before his name was transmitted to the Senate for confirmation.
Meanwhile, both Magu and the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, who were cited as Defendants in all the suits, filed objections to challenge the locus standi of the plaintiffs to file the actions.
The AGF argued that the suits were incompetent as the plaintiffs failed to show how Magu’s stay in office as Acting head of the EFCC personally affected their civil rights and obligations.
Malami maintained that the Senate ought to have been the aggrieved party to approach the court, adding that due process and laid down condition precedents were not followed before the anti-Magu plaintiffs filed their suits.
More so, Malami, while contending that the plaintiffs should have approached the court by way of a judicial review, said President Buhari enjoys enormous powers to appoint any person to head any federal government agency in acting capacity.
He told the court that Magu has been performing his duties diligently, saying there was no standing rule that he could not be retained in office in acting capacity as the President deemed expedient, despite the rejection of his nomination by the Senate.
In her judgement, Justice Ojukwu dismissed all the preliminary objections Magu and Malami raised against the suits, stressing that the court was satisfied that the plaintiffs had sufficient rights to institute the actions.
Justice Ojukwu held that the fact that over 13 different suits were lodged before the court over the EFCC chairmanship position was enough pointer to the fact that the issue was of great public importance.
The court, aside declaring that the plaintiffs had the requisite locus standi to file the actions, held that argument by the defendants that EFCC enjoy similar status as an extra-Ministerial department of FG under section 171 of the Constitution, was short-circuited.
“There is no question regarding the mandatory provision of the statute that the President needs to obtain confirmation of the Senate before the appointment of the 1st defendant can be validated”, the court held.
It said there was no conflict between section 2(3) of the EFCC Act, section 171 of the Constitution and section 3(6) of the ICPC Act.
According to the court, while EFCC and ICPC Chairmen have established tenures of 4 years and could be re-appointed, persons appointed under section 171 of the Constitution are appointed at the pleasure of the President and could be fired at will without the intervention of the Senate.
In the final analysis, the court dismissed all the suits on the premise that nothing in the law circumscribed President Buhari’s powers to retain Magu in office, or provided a timeframe within which he could serve as acting Chairman of the EFCC.
“All I am labouring to say is that this court cannot accede to entreaties of the plaintiff. This suit has failed and is accordingly dismissed”, Justice Ojukwu held in Tajani’s suit marked FHC/ABJ/CS/227/2017, which was the first judgement she delivered.