Lawyers of Shame

Some lawyers are urging the President, to disregard the Senate and flout the law in respect of the chairmanship of EFCC, writes Anayo Okolie

The Senate on Thursday rejected the nomination of Mr. Ibrahim Magu as chairman of the Economic and Financial Crimes Commission, citing security reports from the State Security Service, also known as the Department of State Services.

The rejection came nearly five months after Magu’s name was forwarded to the upper chamber for confirmation as substantive chairman of the anti-graft agency. The rejection has, expectedly, generated reactions. But in an unfortunate expression of opinion last week, some lawyers, while voicing their condemnation of the Senate’s decision not to confirm Magu, made allusions that tended to suggest that President Muhammadu Buhari should simply proceed without the upper chamber. This would be a contravention of the 1999 Constitution and the EFCC Act and should not be encouraged.

Section 2(3) of the Economic and Financial Crimes Commission Act, 2004, provides, “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 1999 Constitution also says such appointments must be approved by the Senate.

Magu has been acting as chairman of EFCC since November last year, when he replaced Mr. Ibrahim Lamorde. But in July, Vice President Yemi Osinbajo, acting on behalf of Buhari, who was in the United Kingdom on a 10-day medical vacation, sent Magu’s name to the Senate for confirmation as substantive head of the commission via a letter. In the letter, which was read on July 14 at Senate Plenary by the Senate President, Senator Bukola Saraki, Osinbajo also sought the Senate’s approval of Nasule Moses, Lawan Maman, Garandaji Imam Naji, and Adeleke Abebayo Rafiu as members of the EFCC board.

But after an executive session held behind closed doors on Thursday, the upper chamber’s spokesman, Senator Aliyu Abdullahi, said Magu could not be confirmed. “The Senate wishes to inform the public that based on available security report, the Senate cannot proceed with the confirmation of Ibrahim Magu as chairman of the Economic and Financial Crimes Commission,” Abdullahi said. “The nomination of Ibrahim Magu is hereby rejected and has been returned to the President for further action.”
The Senate certainly acted within its powers.

But, surprisingly, the chairman of the Presidential Advisory Committee on Corruption, Professor Itse Sagay, a Senior Advocate of Nigeria, said Magu’s appointment remained valid whether the Senate confirmed it or not.
Sagay was quoted as saying regarding Magu, “Whether they like it or not, he will be there. His chairmanship will keep on being renewed.
“Since Nuhu Ribadu left, we have not had a man with such sterling qualities as Ibrahim Magu and whether they like it or not, Magu will be there until he completes his term under the law.”

However, what is at issue here, as stated by the Senate, is neither the experiential nor educational qualifications of Magu, but a security report by a competent state organ.
Yet reacting to the Magu rejection issue in a similar manner as Sagay, another lawyer, Nzube Akunne, was reported as saying, “If such situation arises, the president may have to resubmit the name to them for confirmation; by the time the president presents it three times and it’s being rejected, he can go ahead and appoint him.”
Akunne maintained, “It’s the president that appoints, it’s his prerogative power. Confirmation is just a procedural issue. By the law, he still remains the acting chairman till the president makes his next move.”

However, former chairman of the National Human Rights Commission, Chidi Odinkalu, was reported as saying, “There are two options available to President Buhari.
“There are only two options here: persuade the Senate to change its mind and give Mr. Magu a second vote or withdraw the nomination and nominate someone else.

“My suspicion is even preceding either steps, the president needs to win allies for his idea of fighting corruption, articulate a clear strategy and persuade the country along. Democracy abhors supermen,” To Akinolu Kehinde, a SAN, Magu “is still in acting capacity. The matter on ground is to confirm him. If the president feels strongly about his appointment, he will represent his name again for confirmation.

“However, the law does not say that any appointment from the presidency must be approved. There are parameters to be met and the Senate must have a tangible reason for rejecting him.”

The position of the law seems clearly to be that Buhari must replace Magu if he fails to successfully address the Senate’s questions on the propriety of his nomination.
The wheel of the law and justice always grinds slowly, often to the frustration of some groups or vested interests. But rationality, democracy, and orderliness demand that the law is allowed to rule unhindered. The alternative is anarchy, which does not augur well for the collective interest of society.