Utum Eteng|9 July 2017
The decision by the 8th Senate of Federal Republic of Nigeria not to honour confirmation requests from the Presidency except Acting President, Prof. Osinbajo immediately implement Senate past resolutions including the one concerning removal of the Economic and Financial Crimes Commission (EFCC) Acting Chairman, Ibrahim Magu, make a mockery of the institution of the Red Chambers.
The Senate as a lawmaking institution appears to desire extra-tutorials and explanations as to the legal import or effect of a resolution of the Legislature in law. For the avoidance of doubt, assuming a resolution has the force of law, a breach would result to legal sanctions. This, the Senate would want the ordinary Nigerian to believe. Therefore, a refusal by the Presidency to implement such a resolution should be met with legal sanctions. Assuming this is so, then the Senate has no locus to resort to self-help or threaten the Executive of not confirming the nominees made to it. The determination of a breach of the law is the prerogative of the law court. One therefore expects the Senate to use the law court to compel compliance by the Executive. It does not call for the current unprofitable grandstanding or threat resort to self-help against the Executive. The Senate should not compel the Executive to act on its resolutions through self-help.
The Senate President as a one-time Executive Governor of a State should know very well that the legislature lacks the capacity to dictate to the Executive who should be appointed to any office. The Senate President must tell Nigerians why he and some Senators are particularly against the appointment of Magu as EFCC boss. The Senate as led by Saraki should put an end to taking Nigerians for a ride. The express provisions of Section 171(1) of the 1999 Constitution as amended is clear. The Section provides that the “Powers to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall rest on the President.” The President does not share this prerogative power with anybody not even with Dr. Saraki, but owes its authority to the Constitution.
What would have been unclear in Section 171(1) is made cleared by Section 171(2) that “The offices to which this Section 171(1) applies are namely: “(a)(b)(d)” “Permanent Secretary of any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation ¬howsoever designated”
The question Saraki and his group of Senators should ask themselves bothers on about the status of the EFCC; whether the EFCC is an Extra-Ministerial Department of Government within the meaning of Section 171(1).
The Attorney General of Federation, Abubakar Malami (SAN) unequivocally reiterated his understanding of Section 171, and only the AGF posited that “he aligns himself with the argument of a Senior Advocate of Nigeria, FEMI FALANA, that Senate confirmation was not needed for the EFCC chairman based on the provisions of Section 171 of the Constitution.”
If Saraki and Co. mean well for our democracy they should not be heard to embark on undemocratic strike to resort to cease to confirm the appointments of innocent Nigerians duly nominated to serve their fatherland.
If Saraki and Co are honest, serious, must be excused from being infested the virus of bad faith in the conduct of their duty, it is incumbent on the Senate to approach the court for an interpretation of Section 171 of the Constitution holistically along-side Section 2(3) of the EFCC Act, if they prove the Executive must be proved wrong.
Whilst the Senate is relying on Section 2(3) of the EFCC Act that “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 Executive is saying Section 171 provides otherwise. This is a quagmire that can only be resolved by the court.
The Senate as a law making body is faced with 2 evils, Section 171 (relied upon by the Executive) and Section 2(3) of the EFCC Act (the Senate) is relying on. The question Saraki and Co must answer for Nigerians is about the validity and supremacy of Section 1(3) of the Constitution over Section 2(3) of the EFCC Act.
It is pertinent to stress that the recent position by the AGF that, “the party, government and the National Assembly will sit at a round table and the matter will be discussed and resolved” is not a good approach. The better approach is to approach the court for a permanent solution.
If the Senate is fed-up with our democracy it should officially pronounce so to Nigerians instead of embarking on these unprofitable threats to disdainfully ask the Nigerian Acting President to withdraw a statement credited to him as a Vice President (then) that the Senate lacked the powers to confirm nominees. This is legislative lawlessness which must be condemned in totality. Nigerians do not need to be reminded that EFCC as presently constituted and headed by the unstoppable Magu is investigating some Senators for their alleged acts of corruption hence, their posture. This appears to be the pains of some of the Senators.
The Senators must prove that the prefix “Distinguished” they answer is not provided in error because their actions and inactions are gradually proving otherwise.
It is sad that the Senate under Saraki and Co has become an institution perpetually in conflict with the Executive arm of government.
For the Senate to dare INEC on the performance of its constitutional role on the recall of Senator Melaye is a further demonstration of its lack of understanding of the Constitution. Saraki and Co must be reminded that INEC has the constitutional duty to supervise the recall of any elected public officer including Senator Melaye by his constituency. The Senate has no powers to grandstand on that matter in that manner? It is only a court of law that can stop INEC from performing its statutory responsibilities in Section 69 of the 1999 Constitution.
Chief Utum Eteng
A Lawyer writes in from Calabar
