The Presidency and this Magu conundrum

LAST week, news reports quoted Vice President Yemi Osinbajo as restating the confidence the Presidency reposed in the acting chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu.

The news report also quoted some lawyers as emphasising Section 171 of the 1999 Constitution in relation to Magu’s rejection by the Senate.

Some lawyers have insisted that going by the provisions of that Section, the president might have made a mistake by sending Magu’s name to Senate for confirmation in the first instance.

But Osinbajo, a legal luminary, failed to go into such controversy when he spoke on Magu.

He said: “We should commend the president for not interfering with what the DSS said. The DSS came up with a report and the man who was accused refuted it.

“He explains and gives a reason. When that happened, the president looked at what Magu said and what the DSS wrote and he said ‘I am satisfied with what Magu said.”

“He then decided to retain Magu as the nominee for EFCC. I don’t see any reason why that should be contested.

“The president has not interfered with what the DSS said. If he wanted to interfere, he would have ordered the DSS to keep quiet. He didn’t do that, but he said ‘I don’t think the DSS report is meritorious enough to withdraw his nomination.’

“The president reserves the right to say, ‘this is who I want’. I’m fully in support of Magu as the EFCC chairman just as the president is.”

Good enough, the Vice President, simply dwelt on the powers of the president to show preferences in his appointees while restating the confidence in Magu.

Lawyers who highlight the essence of Section 171 of the 1999 Constitution would however want the president to simply bypass the Senate and appoint Magu in substantive capacity.

For the avoidance of doubts it is necessary to reproduce the Section below. The Section reads: 171. (1) “ Power 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 vest in the President.

(2) The offices to which this section applies are, namely –

(a) Secretary to the Government of the Federation;

(b) Head of the Civil Service of the Federation;

(c) Ambassador, High Commissioner or other Principal Representative of\ Nigeria abroad;

(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and

(e) any office on the personal staff of the President.

(3) An appointment to the office of the Head of the Civil Service of the Federation shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of the Federation or of a State.

(4) An appointment to the office of Ambassador, High Commissioner or other Principal Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate.

(5) In exercising his powers of appointment under this section, the President shall have regard to the federal character of Nigeria and the need to promote national unity.

(6) Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office;

“Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the President ceases to hold office.”

Notwithstanding the vigour being exerted by lawyers who are proponents of the view that the Senate does not need to confirm Magu, I will counsel that the government treads this part with a cautious eye on the rule of law. A government of change should not be seen as one executing and interpreting the law at the same time.

In fact the whole essence of Section 171(6) tends to defeat the argument that the Senate cannot clear Magu owing to the fact that his appointment is tenured  in accordance with the EFCC Act. His tenure does not expire at the end of a President’s tenure.

If we go by the argument of the lawyers, it would mean that the entire EFCC Act is null and void. Even at that, the executive should still allow the Judiciary do that beat of declaring the Act invalid.

I guess that because of the love for Magu, some lawyers are only looking for short cuts. But why should anyone run away from the Senate. There is no law that stops the President from presenting a nominee for as long as he wants. The Senate as well has the right to confirm or reject the nominee.

I believe that in the instant case, the issues are well spelt out. The Senate has given reasons why Magu was not cleared. They don’t need to do so. But having given a clue of the answer to a student seeking to re-sit an exam, the job has been simplified.

Rather than bypass the Senate, I believe the executive can help strengthen the democratic process by either playing the politics required to get Magu confirmed or seek the nullification of the EFCC

Act and then announce the EFCC Chairman as a personal staff of the President in line with Section 171(6) of the 1999 Constitution.