Confirmation: Go to Court, Senate Dares Presidency

Tobi Soniyi and Damilola Oyedele
The Senate has said it supports the executive’s decision  to go to court for interpretation of Section 171 of the Constitution.

In order to bypass the Senate in some appointments, the presidency has been relying on section 171 of the constitution to make the appointment.
This has resulted in a series of clashes between the Senate and the executive with the former threatening to stop screening other nominees of the executive.

But reacting to the decision of the executive to seek a judicial interpretation of the constitutional provisions, the Chairman Senate Committee on Media and Publicity, Aliyu Sabi-Abdullahi, who spoke on Channels Television programme, Sunrise, said the Senate was happy with the decision of the executive to go to court for an interpretation.

He said: “Section 171 is very clear. We must be sincere to the citizens. I mean both the executive and the Senate owe the citizens a duty to be sincere.  The issue of confirmation has been on many years. We are okay if the executive is ready  to go to court. That will resolve the crisis once and for all.”

 The presidency had last Sunday said it believed that only a judicial interpretation of Section 171 would resolve the dispute between it and the National Assembly on whether the appointment of the Acting Chairman of the Economic and Financial Crimes Commission, Ibrahim  Magu and other appointments could be done without Senate’s approval.
Citing an advisory from ‘legal and judicial experts’, the presidency  said although it believed that its position was the correct one, it nevertheless agreed that only the courts could finally lay the dispute to rest.

 The presidency further said that although it was the view of the the federal government that certain federal appointments should not require the confirmation of the Senate based on Section 171 of the constitution, the government would, nevertheless, continue to send some of such appointments to the Senate pending judicial interpretation of the matter.

It said: “Our position is based on a legal advisory prepared by judicial and legal experts as a working document in the presidency regarding the differences in the constitutional interpretations on matters of certain federal appointments.
“In fact, the advisory unearthed a ruling of the Supreme Court on the matter where the current Chief Justice of Nigeria, before his elevation as CJN had ruled in line with the view of the presidency on the matter.”
The presidency rejected the claim that all appointments by it were based on section 171.

“This is because, even after the acting president, (who spoke when he was vice president in support of the view of some leading lawyers) the presidency has continued to send nominations to the Senate while the President himself was around and while away by the acting president,” it added.

The presidency said  that section 171 was very clear that certain appointments did not require Senate consent, but added that the “presidency is not already behaving as if its interpretation of the law has become a policy. The presidency is persuaded that its interpretation is the correct one, but we are conscious and aware of the fact that only a proper judicial ruling on the matter would make it a settled policy that sits right with the rule of law. That is why we have not stopped sending all manners of nominations to the Senate, most of which the Senate has actually confirmed, even well after the acting president spoke.”

He said: “According to that legal advisory the divergent positions being held by the executive and then legislature on the subject of confirmation …is one that requires timely and ultimate resolution. Such resolution could only be reached through judicial process…Such interpretation would lay to rest the lingering crises between the two arms.”
The federal government also said the advisory affirmed the powers of the president to appoint in acting capacity into positions such as the EFCC chairmanship.

The advisory in question reads in part: “In the recent past, the ministerial nomination of the late Prof. Abraham Babalola Borishade (Ekiti State) by President Olusegun Obasanjo was rejected repeatedly by the Senate.” In fact it would be recalled that this particular nomination was presented four times in 18 months before it was eventually confirmed by the Senate.

“This position is because of the long established and entrenched principle of law that any legislation that is inconsistent with the provision of the constitution is null and void and of no effect whatsoever to the extent of such inconsistency.”