EFCC: Will Buhari replace Magu or ignore court ruling?

Against the backdrop of last week’s ruling by the Federal High Court in Abuja, EZREL TABIOWO, in this piece, writes on two actions likely to be taken by President Muhammadu Buhari.

The Magu palaver
The back and forth arguments between the Presidency and National Assembly as to whether the latter has the powers to reject a nomination put forwarded by the President, was last week laid to rest following a Federal High court ruling.
Recall that the Presidency had last year, maintained that the Senate lacks the constitutional powers to reject a nominee whose name was forwarded to it for confirmation by the President, sequel to the rejection of Ibrahim Magu by the upper chamber.
According to the Senate, the rejection of the nominee on two separate occasions by the lawmakers was informed by details contained in a letter written to the upper chamber by the Department of State Security (DSS).
The DSS had in its letter to the Senate maintained that going by its findings, Ibrahim Magu “failed the integrity test”, and thus was declared “unfit” to lead the affairs of the anti-graft agency.

Osinbajo’s stance on senate’s position
But the Vice President, Yemi Osinbajo, who at the time was holding fort for President Muhammadu Buhari, who was away to the United Kingdom for medical treatment, jumped to Magu’s rescue by giving an interpretation to the law on the issue maintaining that the Senate lacked the powers to reject the President’s nominee.
The position of the Vice President, which clearly did not go down well with the lawmakers, compelled the upper chamber to suspend further confirmation of all nominees whose names were forwarded by the President to the upper chamber until the presidency complies with its decision on Magu.

Federal High Court interpretation
But giving a ruling on the issue which was widely debated last year, the Federal High Court in Abuja last week upheld the rejection of Mr. Ibrahim Magu as substantive Chairman of the Economic and Financial Crimes Commission (EFCC) by the Senate.
This was just as the Senate urged President Muhammadu Buhari to, in line with the judgement, forward the name of a credible Nigerian it for confirmation as substantive EFCC boss.
A concerned Nigerian, Oluwatosin Ojaomo, had on the 14th of January 2017 litigated against the Senate at a Federal High Court, Abuja for rejecting Magu’ s confirmation as EFCC Chairman.
The litigant in the suit no FHC/ABJ/CS/59/2017 which had the Senate President and the Attorney General of the Federation as co-defendants, prayed the court to nullify Magu’s rejection by the senate since according to him, the upper legislative chamber has no power to confirm him in the first place let alone, rejecting him.
The plaintiff, who cited section 2 (1) (a) (i) (ii) (iii) and 2 (3) of EFCC (Establishment) Act, 2004 to argue his case in paragraphs 7-18, said the statutory powers of such appointment and confirmation lies with the President in line with the cited extant laws of the commission.
But the Presiding Judge, Justice J.T Tsoho, in his judgement dated 15th January, 2018 ruled that the Senate as constitutionally empowered, has the power to confirm or reject any presidential nominee forwarded to it at anytime.
Magu’s rejection, according to the Judge, was in right since the intendment of the laws as it regards the Senate was not to serve as a rubber stamp of the president.

Reasons for Court verdict
The judgement reads in part: “Plaintiff raised two issues in the written address for determination, to wit: whether or not the 1st defendant can reject a valid statutory appointment made by the President of the Federal Republic of Nigeria to the Office of the Economic and Financial Crimes Commission in accordance with the provisions of the EFCC (Establishment) Act, 2004.
“Whether or not the 1st defendant is bound by the provisions of the EFCC Act, 2004, with respect to the confirmation of any appointment made by the President of the Federal Republic of Nigeria to the Office of the Chairman of the Economic and Financial Crimes Commission.
“Having regard to the questions presented for determination and the reliefs sought in the originating summons by the plaintiff in this instant suit, his locus standi, in my humble opinion, is doubtful. The affidavit depositions, which give background information of the plaintiff, have not disclosed sufficient stake or peculiar interest of the plaintiff above others that entitles him to institute this action.
“Paragraphs 4, 5 & 6 of the affidavit in support of the originating summons have introduced the plaintiff as a certified Legislative Counsel/Professional drafter trained by the Commonwealth Secretariat, London, United Kingdom at the Ghana School of Law, Accra, Ghana. Also, that he is a solicitor and advocate of the Supreme Court of Nigeria and currently a Legal practitioner in a Law firm. This, in my humble view, does not establish any special or unique interest of the plaintiff above those of others that entitles him to institute this action. On this premise, the suit is liable to be struck out for lack of standing to maintain the action.
“Nevertheless, the Court will consider the merits of the issues raised for determination by the plaintiff.
“Issue 1 borders on the power of the Senate in respect of statutory appointment under the EFCC Act referred to it by the President. The relevant provision relating to appointment of the Chairman of the EFCC is Section 2 (1) & (3) of the EFCC (Establishment) Act, 2004. Section 2 (3) provides as follows, “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.
“Firstly, the use of the word ‘shall’ in legislation usually denotes mandatoriness. Therefore, while the plaintiff recognises the use of the word ‘shall’ as conferring mandatory and unqualified powers on the President to appoint the Chairman of the EFCC, sight must not be lost that the same word is used in respect of confirmation by the Senate of such appointment. Therefore, interpretation of the word ‘shall’ should logically have the same effect regarding both situations.
“More importantly, the expression ‘subject to’ used in Section 2 (3) of the EFCC Act is very instructive. The expression ‘subject to’ has been interpreted to mean liable, subordinate, subservient, or inferior to; governed or affected by; provide that or provided; answerable for. ‘It has been categorically stated that the phrase ‘subject to’ introduces a condition, a restriction, a limitation, a proviso.
“On issue 2 for determination, there is no doubt that that 1st defendant is bound by the provisions of the EFCC Act with respect to appointment of Chairman of the EFCC by the president.
“It should be realised that the provision of Section 2(3) of the EFCC Act, empowers the Senate, headed by the 1st defendant to confirm an appointee to the office of the Chairman EFCC by the President. The Senate is thus conferred with authority to ensure the choice of only suitable and credible persons for appointment to that office. The submission of the plaintiff, however, gives the impression that the Senate only exists to rubber stamp the president’s appointment of a Chairman. Such viewpoint runs counter to the proper intendment of Section 2 (3) of the EFCC Act and is misconceived. Issue 2 is also resolved.
“The point must be made that it is trite in law generally, that where a plaintiff’s claim is unchallenged and uncontroverted, the court will accept the available evidence and act on it.
“There is, however, exception to this, where the court finds that the plaintiff’s action is not maintainable, despite being unchallenged. This, I humbly hold to be the position in the instant suit, as I regard as doubtful the plaintiff’s capacity or competence to maintain the action. Consequently, this suit is struck out”.

What senate expects from Buhari
Reacting to the judgement last Thursday, the Senate spokesman, Senator Aliyu Sani Abdullahi ( APC Niger North), said the ruling having vindicated the senate’ s position, President Buhari should look beyond Magu as far as the chairmanship of EFCC is concerned.
“We are pleased with this judgement and salute the judiciary for rising up to the occasion.
“With this, the Senate expect the executive to be guided by the court decision and do the needful by forwarding the name of any credible Nigerian for the EFCC office. There is nothing personal in the whole thing. The court had ruled and all parties concerned, must obey”, he said.
What however remains uncertain is whether President Buhari will immediately comply with the ruling of the Federal High Court by having Magu replaced, or in defiance ignore the ruling of the court by keeping Magu as Acting Chairman of the EFCC. As to what happens next, only events in the following months shall tell.

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