Setting the Stage for Renewed Executive, Legislature Hostilities

Executive Briefing

The directive by Vice-President Yemi Osinbajo to‎ nominees of the National Pension Commission, the Code of Conduct Bureau and the Independent Corrupt Practices and Other Offences Commission to assume their offices in acting capacities, pending their confirmation by the Senate, has reopened old wounds, writes Tobi Soniyi‎

Although, as Nigel Bowles, an authority in American presidential system puts it, “The Presidency’s single most important political relationship is that with the Congress”, the two arms ironically disagree the most.

Senate’s Power to Confirm Nominees

Despite the fact that the1999 Constitution and Acts of the National Assembly vest in the Senate the powers to confirm certain executive appointments, there has been a contention under this present administration whether these appointments should be referred to the National Assembly for confirmation or not.

For instance, while the Senate has twice rejected the appointment of Mr. Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFFC), based on the report of another executive agency, the Department of State Security (DSS), the Presidency has, however, retained him in acting capacity to the annoyance of the lawmakers.

In April this year, the Presidency drew the ire of the National Assembly when it said that based on the provisions of Section 171 of the 1999 Constitution, it ought not to have sent Magu’s name for confirmation in the first place.

Speaking with newsmen at the Aso Presidential Villa, the Vice President, Prof. Yemi Osinbajo, said: “It is up to the Senate to make their judgment, and it is up to us to say what we want to do. If our candidate is rejected, we can re-present him. No law says we can’t re-present him. And again, there is the other argument, whether or not we need to present him for confirmation.

“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”.

However, responding vide a resolution upon a motion sponsored by its Minority Leader, Hon. Leo Ogor, the House of Representatives described Osinbajo’s assertion as “an imminent threat to, and the erosion of the doctrine of separation of powers in our democratic practice”.

The Senate, on its part, took the view that the EFCC was not an extra-ministerial department, but a creation of an Act of the National Assembly. It also dismissed the powers of the Presidency to retain Magu in acting capacity, noting that once Section 2(3) of the EFCC (Establishment) Act, which requires the confirmation of the chairman and members of EFCC by the Senate was activated by sending Magu’s name for confirmation, his tenure as Acting Chairman automatically terminated upon his rejection by the Senate.

The Senate, therefore, not only requested the Presidency to sack Magu, but also went further to suspend the confirmation of nominees of the executive not expressly listed in the constitution until Osinbajo retracted his statement on Senate’s power to confirm such appointments.

To press home its point, the Senate declined to honour the request by the then Acting President to confirm appointment of Mr. Lanre Gbajabiamila as the Director-General (DG) of the National Lottery Commission (NLC). It accused the Presidency of contradicting itself because like the EFCC, the NLC is not listed in the constitution.

The non-consideration of Gbajabiamila’s nomination was set in motion by Senator Ahmed Sani Yerima (Zamfara Central) who raised a point of order stressing the need for Osinbajo to clarify/retract his comments.

In his contribution, Senator George Sekibo (Rivers East) wondered: “If he (Osinbajo) says we don’t have the power to confirm and he is sending us a nomination, is he reversing himself?”

It was against this backdrop that many were surprised when on Friday, August 18, 2017, Osinbajo directed nominees into the boards of the National Pension Commission (PENCOM), Code of Conduct Bureau (CCB), and the Independent Corrupt Practices and other Offences Commission (ICPC) to resume immediately in acting capacities pending their confirmation by the Senate.

According to a statement issued by the Office of the Acting Secretary to the Government of the Federation (SGF) Dr Habiba Muda and signed by the new Permanent Secretary, Ministry of Labour and Productivity, Mr Bolaji Adebiyi, those affected were Alhaji Ali Usman Ahmed and Mr. Funsho Doherty as the Chairman and Director-General of PENCOM, respectively, as well as the four acting Executive Commissioners Mr. Manasseh T. Denga, Abubakar Z. Magawata, Ben Oviosun and Nyerere Anyim.

Others were Dr. Muhamma Isah as Acting Chairman, CCB, and nine members of the Bureau’s board, namely Murtala Kankia, Emmanuel E. Attah, Danjuma Sado, Ubolo I. Okpanachi, Ken Madaki Alkali, Prof. S. F. Ogundare, Hon. Ganiyu Hamzat, Saad A. Abubakar, and Dr. Vincent Nwali.

Also, Prof. Bolaji Owasanoye was directed to resume as the Acting Chairman of the ICPC while the Chairman, Hon. Ekpo Nta (Rtd), was deployed to the Salaries and Wages Commission.

According to the presidency, this became necessary to avoid leadership vacuum in the institutions.

However, reacting to the development, a principal officer of the National Assembly, who does not want to be named, berated the action as “illegal and the height of executive impunity”.

“I think this will be the final battle to save the National Assembly and our democracy. We will resist it”, he stressed.

Also, the Chairman of the Senate Committee on Media and Public Affairs, Senator Aliyu Sabi Abdullahi, warned the affected nominees to steer clear of the agencies and wait for their confirmations by the Senate.

He said: “The leadership of the Senate has been inundated by enquiries from individuals across the country, who want to know whether the statement from the Office of the Secretary to the Government of the Federation to the effect that the nominees into the headship of PenCom, the CCB and ICPC should resume work immediately, pending their confirmation by the Senate, was as a result of an understanding between the executive and the legislature.

“We will like to advise the Acting President, who was quoted to have given the directive for the resumption of the nominees, that the directive was illegal and not right. The Senate will not support any action that is not in line with the law.

“We advise the nominees to hold on until they are cleared by the Senate as required by the law before resuming in their respective offices. We do not want anything that will cause any problem between the executive and the legislature”, he added.

The PENCOM Conundrum

The removal in April this year of the entire PENCOM Management led by Mrs. Chinelo Anohu-Amazu contrary to the provisions of the Pension Reform Act (PRA) 2014 has been another bone of contention, not only between the Senate and the Presidency, but also between the presidency on one hand and industry stakeholders and South East interest groups on the other hand. There are also about five lawsuits instituted by stakeholders challenging FG’s action, which they believe did follow due process of law.

Also, whereas Section 21 (2) of PRA 2014 provides that “In the event of a vacancy, the President shall appoint a replacement from the geo-political zone of the immediate past member that vacated office to complete the remaining tenure”, President Muhammadu Buhari appointed Alhaji Aliyu Dikko from Kaduna, North-west, to replace Mrs. Anohu-Amazu, who hails from the South-east.

Instructively, when Buhari travelled to London in May, the Acting President moved Alhaji Aliyu Dikko to the Bank of Industry (BOI) as board Chairman and nominated Mr. Funsho Doherty, former Managing Director (MD) of ARM Group where the Vice President was a Director, as PENCOM DG.

However, an executive-legislature face-off was avoided when the Senior Special Assistant to the President on the National Assembly (Senate), Senator Ita Enang, denied media reports that the Presidency had directed the newly nominated PENCOM management to resume work without Senate’s confirmation as provided by Section 19 of the PRA 2014.

Enang maintained: “I have confirmed that no letter has been issued to any of the persons named by Mr President for any position in the National Pension Commission.

“The nominations will follow the correct procedures of confirmation by the Senate before they assume office.”

However, the directive by Osinbajo asking the nominees to resume contrary to the Presidency’s earlier position has sent tongues wagging.

A source at the National Assembly said the Senate would investigate issues of concern involving ARM Group, where Doherty was a pioneer Chief Executive Officer of ARM Pension Ltd.

He explained: “As you know, the Vice President was a Non Executive Director at ARM where Funsho Doherty was also a Managing Director.

“Among other issues, we will like to establish whether it is indeed true that the ARM Pension has been severally sanctioned by PENCOM for financing some ARM Group’s activities from the PFA’s account contrary to the provisions of PRA 2014.”

Query over ICPC Appointment

On ICPC, informed sources within the National Assembly said lawmakers were unhappy with the executive, not only over the directive to Owasanoye to resume at the ICPC without Senate’s confirmation, but what it considers the illegality of Ekpo Nta’s redeployment to another commission.

According to the source: “Section 3 (7) of the ICPC Act clearly provides that ‘The Chairman and members of the Commission, who shall be person of proven integrity shall be appointed by the President, upon confirmation by the Senate and shall not begin to discharge the duties of their offices until they have declared their assets and liabilities as prescribed in the Constitution of the Federal Republic of Nigeria’.

“Therefore, Nta was nominated by President and confirmed by the Senate for a specific job. There is nothing in the ICPC Act that permits the presidency to redeploy the ICPC Chairman to another Commission. The most it can do is to sack him vide a written address supported by two-thirds of the Senate.

“There is also nothing in the Act that suggests that any person, who has not been confirmed by the Senate and declared his assets and reliability can be an Acting Chairman or member of ICPC.

“Under the ICPC Act, you cannot even bring someone from the outside to act as Chairman. If Chairmanship vacancy occurs, the presidency has to appoint from among the existing members of the Commission a person to act until a substantive Chairman is nominated, confirmed by the Senate, and appointed. Recall that Ekpo Nta, a member of the Commission, acted in this capacity from November 2011 until October 2012 when he nominated as Chairman and confirmed by the Senate”.

Quote

However, the directive by Osinbajo asking the nominees to resume contrary to the Presidency’s earlier position has sent tongues wagging.