President Muhammadu Buhari has opted to seek legal
opinions in deciding what to make of Mr. Ibrahim
Magu, following the
latest refusal of the Senate to confirm him as substantive chairman of
the Economic and Financial Crimes Commission (EFCC).
The legal consultations will form an integral part of the planned
peace talks between government’s mediation team headed by Vice President
Yemi Osinbajo and National Assembly leaders.
The Federal Executive Council constituted the team recently to
interface with the NASS leadership with a view to resolving the
differences between the two arms.
The Nation gathered yesterday that the Osinbajo-led team was yet to contact the National Assembly leaders.
Authoritative sources said yesterday that Buhari had called for
advice on the import of Section 171 of 1999 Constitution which is the
bone of contention on the fate of Magu.
The Section says: (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 rest 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 Civil Service of the
Federation shall not be made except from among the 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 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.”
Section 11 of the Interpretation Act says: (1) “Where an
enactment confers a power to appoint a person either to an office or to
exercise any functions, whether for a specified period or not, the power
includes-
(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) power to remove or suspend him;
(c) power, exercisable in the manner and subject to the limitations
and conditions (if any) applicable to the power to appoint,-
(i) to reappoint or reinstate him,
(ii) to appoint a person to act in his place, either generally or
in regard to specified functions, during such time as is considered
expedient by the authority in whom the power of appointment in question
is vested.
(2) ” A reference in an enactment to the holder of an office shall
be construed as including a reference to a person for the time being
appointed to act in his place, either as respects the functions of the
office generally or the functions in regard to which he is appointed, as
the case may be.”
Prof. Itse Sagay’s Presidential Advisory Committee Against Corruption
(PACAC) believes that by virtue of Section 171, Magu can continue to
act as Acting EFCC chairman.
The Department of State Security Service, some government officials and the Senate think otherwise.
The Senate on Wednesday stopped the consideration of the 27 Resident
Electoral Commissioners who were nominated by Buhari to protest Buhari’s
refusal to sack Magu after it rejected him for a second time.
A top level source said although the President has stuck with Magu
for now, those opposed to the EFCC acting chairman are drawing
attention to Section 11 of the Interpretation Act in the constitution.
The source said: “The President is being painstaking in taking a decision on Magu.
“He has sought legal advice on the contentious Section 171 of the 1999 Constitution and Section 11 of the Interpretation Act.
“The legal advice might either strengthen his position on Magu or
determine what action to take. It will also assist him to engage the
National Assembly leadership on Magu’s fate.
“Buhari is aware of argument for and against the retention of Magu
but he does not go by the spur of the moment because of posterity. He is
aware of Magu’s impeccable contributions to anti-graft war. And on a
personal note, he is with Magu.
“He runs a peculiar presidency based on adherence to the rule of law and not Executive fiat as the case was in the past.”
Another source said: “the President’s ultimate decision on Magu will
have to take cognizance of the EFCC Establishment (2004) Act and the
rejection of the officer by the Senate for the second time.
“Apart from the law, some government officials prefer a political
solution to the controversy on Magu. We are hopeful that Osinbajo’s
mediation team will be able to resolve this issue amicably.
“There is a dilemma before the President. He favours Magu for the job
and he does not pretend about it. But he has to manage the anger of the
Senate too.
“The battle over Magu is now in the realm of legal technicality,
especially his continued stay in office in Acting capacity. This is why
the President needs sound legal advice, not jaundiced type.”
The questions to be resolved are:
* Can the President re-nominate Magu for the third time?
* What becomes of Magu’s status in the light of his rejection for the EFCC job for the second time by the Senate?
* Should Magu remain in office in Acting capacity as EFCC chairman
until Buhari takes a decision or as long as it takes Buhari to decide
his fate?
*If Buhari does not re-nominate Magu for a third time, can he remain
in Acting EFCC chairman till the end of Buhari’s tenure in 2019 in the
light of the provision of Section 171 of the 1999 Constitution?
A principal officer in the National Assembly said: “We are awaiting
communication from the Vice President before we constitute our team
which will meet with the mediation committee from the Executive.
“Certainly, we are bound to disagree on issues in line with the
principle of separation of powers but we are also expected to reach
consensus for the betterment of the society at large.
“We have issues with the interpretation if Section 171 of the 1999 Constitution.”
Shortly after Magu’s last rejection, the Executive Secretary of
PACAC, Prof. Bolaji Owasanoye, had told our correspondent that Magu can
continue to serve in acting capacity.
He said: “We believe that there is nothing inhibiting him from being
in office as the Acting EFCC chairman. We are of the opinion that he
should remain in office.
“If you look at Section 171 of the 1999 Constitution, the President
is empowered to retain him as long as he wants in acting capacity. As
long as the President remains in office, Magu can continue to act as
EFCC chairman.”
Responding to a question, Owasanoye added: “If there is something
new, we would have modified our position but the Senate acted on old
report without considering the President’s points in the re-nomination
letter.”
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