The statement credited to Vice President Yemi Osinbajo that the executive branch may discard senate confirmation of nominees for heads of federal agencies not expressly prescribed for in the constitution is interesting. Osinbajo, a professor of law and a Senior Advocate of Nigeria (SAN) spoke in support of the opinion of Femi Falana, also a SAN, who had said earlier that the constitution does not provide for senate confirmation of nominees for certain positions, by extrapolation including that of the EFCC chair.
Both senior lawyers are relying on some express provisions in section 171 of the 1999 constitution as amended, which confers on the president the right to appoint or dismiss officers in the Public Service, without overtly stating the confirmation requirement.The summary of Falana’s submission is that though the EFCC act requires that the senate confirms the chairman’s appointment, yet being an inferior law to the constitution this provision of the act cannot stand. The vice president said at a meeting with reporters just before the Easter break that, “And again, there is the other argument, whether or not we need to present him for confirmation and that’s a compelling argument from Femi Falana.
“His argument is that under the constitution, section 171, and if you look at that section, it talks about the appointments that the president can make. They include appointments of ministers, ambassadors and heads of agencies such as the EFCC. In that same section 171, the constitution rightly said that certain appointments must go to the senate such as ministerial and ambassadorial appointments. Those of heads of agencies like the EFCC do not have to go to the senate. That’s what the constitution says. But the EFCC act, which of course as you know is inferior, says that EFCC chairman should go to the senate for confirmation.
“I am sure that even a pocket book lawyer knows that when a legislation conflicts with constitution, it’s the constitution that prevails. I agree with Mr. Falana that there was no need in the first place to have sent Magu’s name to the senate, but we did so and it was rejected by the senate, but I believe that it can be represented. I don’t think there is anything wrong about the fact that senate has rejected him. Senate has acted in its own wisdom to say ‘No, we don’t want him’, and we can say, ‘this is our candidate… we like the gentleman and we want him to continue.”
In one breath Osinbajo agrees with Falana’s submission, yet he says the federal government may represent to the senate for confirmation. Was he flying a kite that the senate may be sidelined in future appointments of heads of departments and agencies? This would be interesting because for all of 16 years no one raised up the question of that section of the constitution, not even during the imperial presidency of Olusegun Obasanjo, but the current administration is showing that indeed in line with its Change slogan, it can find creative solutions to the gremlins that come against its great ‘Anti-Corruption War’, in this case the senate.
This new business of reinterpreting the constitution is about the whole matter of Mr. Magu, the acting chairman of the EFCC. Twice Mr. Magu was presented for confirmation as chairman of the Economic and Financial Crimes Commission (EFCC); twice the senate, based on negative reports from the State Security Services, rejected him. That rejection set the stage for the current debate because Magu has sort of warmed his way into the hearts of some of the key ‘anti-corruption’ actors of the Buhari presidency and – with a fervor that satiates the public’s craving for action in the ‘war on corruption’, including drama and sensational headlines – no one can think of a better man and never should the impression be conveyed that the ‘anti-corruption war’is being degraded, by sacking the one man who has come to personalize the ‘war’. So Magu stays on the card!
On this score one can understand the presidency’s desire to keep Magu in his job, however it is done, although another federal agency has serially indicted him! I have advisedly parenthesised the ‘anti-corruption war’ not because it is somenew coinage or that what we see is actually not a ‘war on corruption’ but skirmishes; it is simply because as simple as that expression is there is no universal agreement today on what constitutes the ‘war on corruption’. There is also the argument that for a hydra-headed problem like corruption is, it looks like only one or two heads are being cudgeled; the impression is that several of the heads of this hydra-headed monster are not only left to blossom, they are sufficiently relaxed and fear no harm; some are even cheering the ‘anti-corruption war’ and are being oiled and groomed in appreciation. Yet, however small, the battle or skirmish must go on! How to get that task done without seeming to be a wimp is the dilemma that the presidency is creatively tackling with the new interpretation of section 171(4). Yet in doing this it fits into a narrative that the senate and by extension the legislature is meddlesome and a pampered irritant. When you add the mushroom campaigns by various groups and persons to get the senate scrapped (how they hope to achieve this is difficult to see) one gets the impression that the new thinking is a distraction.
Professor Osinbajo did not foreclose the senate confirmation process but by speaking from both sides of his mouth what he is doing is foment a debate that keeps Magu in acting position for as long as the executive wants, while keeping hope alive that the process is still in play. Like most issues in Nigeria, there is no single dominant position on whether a nominee that has been rejected can continue in office in an acting capacity. Lawyers and commentators aligned to the government and the ruling party claim that a senate rejection does not nullify the appointment, while those opposed say it does. It is an indication of how partisan even knowledge has become in Nigeria today and why we cannot find objective definitions or interpretations of what the ‘war on corruption’ is and cannot agree on time-tested processes. On the matter of Magu the senate has said that it will not consider its nomination a third time. For the Buhari presidency, the position is that, ‘well, sorry, we are going to keep him acting for as long as we like.’ And to this Osinbajo has found his linchpin in section 171(4) of the constitution. I doubt very much if he is right and that perhaps explains his tentative adoption of Falana’s position.
If Osinbajo and Falana get away with their position, then several of the agencies, which now go for senate confirmation such as the behemoth NNPC, NCC and similarly large department and agencies, many much bigger than state governments and ministries, would no longer need the stricture, however small (because the senate has been a rubberstamp for the most part and there is no indication that if the SSS had not written the report on Magu he would not have been confirmed posthaste), which would be dangerous in a clime where the executive branch does not really display a moral quotient higher than the legislature’s. It is even more dangerous when we know that the more insidious form of corruption, which is nepotism, is a fact of life in these parts and virtually anyone can be railroaded into any office. Even in its ‘nuisance value’ the senate saved us from having an ambassador over 80 years old, a man who without the safeguard of checks and balances would have been sent abroad to represent the country. Of course, there is nothing absolutely wrong with having anyone of that age in that office (after all Baba Obasanjo is famed for his stamina at 80) but in a country where the life expectancy is just about 50, it is anyone’s guess if an 80-year old man can withstand the rigour of that office.
I am convinced that the makers of the constitution could not have envisaged a presidency that can operate like a sole-administratorship without the input of the representatives of the people. The senate must get beyond its beggarly and platitudinous groveling before the executive to define its purpose and defend its position. It should approach the Supreme Court for an interpretation on the limits of its power on the appointments of heads of departments and agencies. This is a beauty of the separation of powers. In the end both senior advocates would help strengthen our democratic institutions even if the courts rule against their position because I would find it strange that a law that provides for senate confirmation would look the other way when that confirmation is denied and the status quo remains. That would be strange indeed.