The 15th of March, 2017 was a Wednesday that promised hope for the teeming citizens of Nigeria who are assiduously working and hoping for a Nigeria free of corruption that would be bequeathed to subsequent generations. The significance of that day to those Nigerians was the optimistic expectation that the Nigerian Senate would confirm Mr. Ibrahim Magu as the Executive Chairman of the Economic and Financial Crimes Commission (EFCC) after his invitation by the Senate to appear for his ‘confirmation screening’ on that date. The ‘confirmation screening’ was ‘conducted’ by the Senate, and, as the saying goes, ‘the rest is history.’
Although in this historic unfolding of intrigues, history is still in the making and will eventually judge all the characters involved. The ominous conduct and outcome of that exercise has postponed the actualization of the desire of generality of Nigerians to have a person with an unparalleled record in the anti-corruption war confirmed as the Executive Chairman of the EFCC. The Senate exercise also raised pertinent constitutional and administrative issues which this piece seeks to raise and draw the attention of Nigerians to, especially the President and the Honorable Attorney General of the Federation.
Does Magu have to be ‘screened by the Senate’ before his appointment as Executive Chairman of the EFCC becomes legitimate and valid?
The answer is ‘NO’ for the following legal reasons. It is not arguable that Ibrahim Magu is a public servant. Chapter VI, Part I of the 1999 Constitution of the Federal Republic of Nigeria (the Constitution) makes provisions for the “Federal Executive” and Column D therein titled “The Public Service of the Federation” contains the instructive and unambiguous Section 171(1) which provides thus: ‘”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 vest in the President.” Subsection (2) states that “the offices to which this section applies are, namely-
Secretary to the Government of the Federation;
Head of the Civil service of the Federation;
Ambassador, High Commissioner or other Principal Representative of Nigeria abroad;
Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and
Any office on the personal staff of the President.
It is clear that section 171(1)(2)(d) applies to Ibrahim Magu who heads an Extra-Ministerial Department of the Government of the Federation in the EFCC. Flowing from the above constitutional provision, it is safe to posit that once the President appoints a person as Chairman of the EFCC, such person does not require the confirmation of the Senate notwithstanding the provisions of section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 (EFCC Act). Some may argue that the intendment of the legislature in section 2(3) of the EFCC Act is to confer power on the Senate to confirm the President’s nominee but it is trite law that where a constitutional provision has adequately covered a particular legal field no subsequent statutory legislation can cover such field. In the Supreme Court decision of I.N.E.C. v. Musa (2003) 3 NWLR (Pt. 806) 72 at 158, paras C-E Ayoola JSC (as he then was) decided the position of the law thus:
“Howsoever it is described, where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The Constitution would not have ‘covered the field’ where it had expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself.”
On page 199 of the same judgment, the apex court also held that:
“The supremacy of the National assembly is subject to the overall supremacy of the Constitution. Accordingly, the National Assembly which the Constitution vests powers cannot go outside or beyond the Constitution…”
The origin of this position of the law on covering the field in our jurisprudence is traceable to the classic decision in Lakanmi v. A-G. Western Region (1971) 1 UILR 201 decided by the Supreme Court. The above exposition of our constitutional law leaves no one in doubt that Mr. President does not require the confirmation of the Senate to appoint Ibrahim Magu notwithstanding the provisions of section 2(3) of the EFCC Act which simply covers the field already covered by section 171(1) and (2)(d) of the Constitution and therefore null and void in line with the reasoning of the Supreme Court in I.N.E.C. v. Musa, supra.
Now, to the argument of those who canvassed the position that Ibrahim Magu cannot act indefinitely as Acting Chairman of the EFCC or that he ceases to act immediately after his ‘confirmation refusal’ by the Senate, I posit that nothing is further from the truth than this erroneous argument. To start with, section 171(1) of the Constitution which empowers the President to “appoint persons to hold or act in the offices which this section applies and to remove persons so appointed from any such office’’ did not provide any time limit within which such appointees will cease to act (as in the case of Magu) other than to say such appointee can be removed by the President at his discretion and nothing more. It does not also state that such appointee shall cease to act if the Senate rejects his ‘confirmation’ if any such confirmation is envisaged therein at all.
This position of the Constitution is further underpinned by the provisions of section 11(1) of the Interpretation Act, Cap. 123, LFN, Vol. 8, 2004, which states thus:
“Where an enactment confer 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-
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;
Power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint-
to reappoint or reinstate him;
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.”
It is also worthy of note to point out that section 153 of the Constitution does not list the EFCC as to make the appointment of its Chairman subject to the provisions of section 154 of the Constitution which requires confirmation by the Senate. These sections of the Constitution are therefore totally inapplicable to the EFCC and the appointment of its Chairman because the position of the law is that the express mention of a thing means the exclusion of that which is not mentioned.
It is apt at this juncture to quote from the treatise of Abraham Lincoln, constitutional lawyer and 16th president of the United States of America, on ‘Constitution, Freedom and Liberty,’ who declared: “don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”
Ibrahim Magu’s continued occupation of the office of the Executive Chairman of the EFCC in an acting capacity after the Senate ‘confirmation rejection’ vis a vis the above constitutional, statutory and judicial position of the law is absolutely legal and therefore gives the lie to the misleading propaganda of the opponents of the anti corruption struggle in our polity. It is also indisputably clear from the foregoing provisions of the law that the President can choose to allow Ibrahim Magu to continue piloting the anti corruption drive of the EFCC in an acting capacity at his own discretion.
This brings us to the role of the DSS in this intrigue. Is the Director General of the Directorate of State Security (DSS) answerable to the President? This question begs answer in the light of the ‘drama’ that played out towards the end of the ‘confirmation screening’ of Ibrahim Magu in the Senate Chamber on the 15th of March, 2017 when one ‘Distinguished Senator’, while questioning the nominee, waved in his hand what he termed ‘DSS letter received yesterday stating that the nominee failed integrity test’, whatever that means. That ‘letter’ which purports to have emanated from the DSS a day before the ‘confirmation screening’ according to the Senator has left majority of Nigerians wondering who the DSS, as an institution and its Director-General, are answerable to in the Constitutional setting of the Federal Republic of Nigeria.
As bad, dangerous and bewildering as the precedent set by that ‘letter’, it is not difficult to locate the supervisory power over the DSS in our laws. Section 3(1) and (2) of the National Security Agencies, Act, Cap.74, Vol.11, LFN, 2004 provides that:
“There shall be appointed for each of the agencies, a principal officer, who shall be known by such designation as the President may determine.”
Sub-section (2) further states that:
“the principal officers of the agencies shall in the discharge of their functions under this Act- (a) in the case of the State Security Service and the National Intelligence Agency, be responsible directly to the President.”
The lingering and disturbing question is; how can an appointee of the President who heads an agency (the DSS) answerable to the President contradicts the President so brazenly? This is the height of official rascality unheard of in our short democratic experience! This is because it is a matter of public knowledge that the President forwarded a letter to the Senate, after the first DSS report(s), informing the Senate that Ibrahim Magu has been queried and the allegations against him investigated and found to be baseless thereby clearing the way for his re-nomination and representation to the Senate for ‘confirmation screening’. Then, the DSS sent a ‘letter’ flying in the face of the President’s earlier letter and contradicting the President’s position that Ibrahim Magu has been cleared of all allegations.
Let us even assume that the DSS can conduct what they called ‘integrity test’ on any nominee presented to it for confirmation screening. The question that would logically follow in the case of Ibrahim Magu is whether the DSS afforded him fair hearing before their so called ‘indictment’ that made him to fail their ‘integrity test’. Right to fair hearing is a spiritual, universal and constitutional right with a sacred place in the history of mankind and constitutionalism. I say it is spiritual right because the notable scriptures informed us that even God did not condemn Adam to life on earth away from the Garden of Eden until after he queried him as to why he ate the forbidden fruit. Such is the place of fair hearing even in the presence of the almighty! But the ‘almighty’ DSS simply forwarded a ‘report’ according to the Senate, that Ibrahim Magu has ‘failed’ their integrity test, the basis of which is only known to them, not us and not even the accused! What a travesty of justice in a constitutional democracy that reserved a special place in section 36 of the Constitution for this sacred right with origin from God!
The constitutional foundation of this universal right in our Constitution is section 36 which is imbued with the spirit of the Latin phrase ‘audi alteram partem rule’ which literally translate to ‘listen to the other side’ or ‘let the other side be heard as well’. Did the DSS listen to Ibrahim Magu ‘to hear his own side’ before they concluded that he ‘failed their integrity test’? The answer is NO. Did the Senate verify the defense of Ibrahim Magu to the old DSS report after listening to him during the ‘confirmation screening’? The answer is NO. Nevertheless, the Senate ‘rejected’ the nomination of Ibrahim Magu few minutes after he had orally defended himself against the allegations in the DSS report(s) without taking time to verify those allegations despite the constitutional power of the Senate to conduct investigations under section 88 of the Constitution! What a sad scene in a supposedly democratic Chamber!
The centrality of the place of the right to fair hearing in our constitutional order cannot be over emphasized by making reference to some of the pronouncements of the apex court, if only to remind the Senate. The Supreme Court in Lazarus Atano & Another v. Attorney General of Bendel State (1988) 4 SC 102 held that “the principles of natural justice are easy to proclaim but their precise extent is far less easy to define.” Similarly, in P.C. Mike Eze v. Spring Bank Plc (2011) 12 SC (Pt.1) 173, the Supreme Court also held that:
“The principle of natural justice as enshrined in the rules of natural justice, the common law and the Constitution of this country is certainly not confined to the proceedings of courts or tribunals under section 6(5) of the Constitution but to every situation wherever a person or authority is concerned in the determination of rights of another in such a manner that the version of the person against whom the determination is to be made, is an essential requirement of the process of determination.”
Despite these constitutional provisions, the Senate did not bother to verify the defense of Ibrahim Magu but acted only on the DSS report to reject his nomination! It is my view, anchored on the foregoing constitutional provisions, that the President can and should allow Ibrahim Magu to continue running the EFCC in acting capacity indefinitely since he will not be violating the Constitution by so doing.
It is also a matter of public knowledge that Ibrahim Magu had investigated many of the Senators leading to the ongoing prosecution of some and their cronies. It is therefore inconceivable to expect that the Senate, particularly those Senators under investigation and prosecution including their President, would give Magu any fair hearing. The recent pronouncement of the Supreme Court on the principle of fair hearing in the case of Alhaji Auwalu Darma v. Ecobank Nigeria Limited (Appeal no. SC. 20/2005) delivered in February, 2017 at ratios 2 and 3 is instructive on this point.
I will conclude this piece by quoting Abraham Lincoln again in his treatise on ‘Constitution, Democracy, Freedom and Liberty,’ whence he said, “we the people are the rightful masters of both the Congress and the Courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” I and majority of Nigerians hope that our Senators will reflect on this before it is too late.
Kabir G. Ibrahim is a legal practitioner and ant-corruption activist. He can be reach at email@example.com.