Mr. Ibrahim Magu was appointed as Acting Chairman of the Economic and Financial Crimes Commission in November 2015 by President Muhammadu Buhari. The appointment was made by the President sequel to section 171 (1) of the Constitution. After Mr. Magu had acted in that capacity for over a year the Senate refused to confirm his appointment as the substantive Chairman of the EFCC. However, as President Buhari was satisfied with the performance of Mr. Magu he decided to retain him as the Acting Chairman of the EFCC.

A couple of days ago, the Senate revisited the matter. In a rather bizarre move, the Senate decided to combine legislative powers with executive functions by passing a resolution which purportedly directed the Acting President, Professor Yemi Osinbajo, SAN, to remove Mr. Magu from the post of the Acting Chairman of the EFCC forthwith. The resolution of the Senate was alleged to have been anchored on section 2(3) of the EFCC Act which provides as follows:

“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.”

Before passing its resolution the Senate ought to have known from the clear and unambiguous provision of section 2 (3) of the EFCC Act that the it has not been vested with the power to confirm or approve any person appointed by the President to hold office in an acting capacity. To that extent, the resolution of the Senate constitutes an affront to section 171 (1) of the Constitution which stipulates that:

“Power to appoint persons to hold or act in the offices to which this section applies to remove persons so appointed from any such office shall vest in the President.”

The offices involved are those Head of Service, Secretary to the Government of the Federation, Permanent Secretaries and Heads of extra ministerial departments of the Government. It is further submitted that Section 2 (3) of the EFCC Act relied upon Senate to justify the confirmation of the Chairman of the EFCC is inconsistent with section 171 (2) of the Constitution. Indeed, of all the positions listed in subsection 2 of the Constitution it is only in the appointments of ambassadors and high commissioners made by the President which require the confirmation of the Senate. See section 171(4) thereof. Since the EFCC is an extra ministerial department of the Federal Government the appointment of its Chairman does not require the confirmation of the Senate. In other words, section 2 (3) of the EFCC Act is inconsistent with section 171 (2) of the Constitution. To that extent, the resolution of the Senate based on the EFCC Act is an exercise in futility.

Although neither the Presidency nor the Senate has deemed to seek interpretation of the relevant provisions of the Constitution from the Supreme Court the power of the President of the Republic to make certain appointments without the confirmation of the Senate had been challenged. In Festus Keyamo v The President & 4 Ors. (See the plaintiff challenged the appointment of service chiefs without the confirmation of the Senate. The trial court set aside the appointments as the power of the President to appoint service chiefs under section 218(2) of the Constitution is on the ground that the appointments were qualified by section 218(4)(b) thereof which provides that the National Assembly shall have power to make laws for the regulation of “the appointment, promotion and disciplinary control of the members of the armed forces of the Federation.”

As the Constitution has made the appointments of service chiefs subject to laws enacted by the National Assembly the court was on a terra firma when it ruled that the appointments so made required confirmation in line with the section 18 of the Armed Forces Act. But in the case of Ebun Adegboruwa v Attorney-general of the Federation (Unreported) Suit No:FHC/L/CS/1405/2012 the plaintiff had challenged the appointment of Colonel Hameed Ali (retd) as the Comptroller-General of Customs on the ground it was not made by President Buhari in consonance with a Federal Government Gazette of 1985. The Gazette in question had provided that a new Comptroller-General of Customs must be appointed from the pool of Deputy Comptrollers-General of Customs.

In dismissing the action the Federal High Court (per Hassan J.) held that by the combined effect of sections 5 and 171 of the Constitution the provisions of the Gazette could not restrict or limit the powers of the President to appoint the Comptroller-General of Customs from outside the public service. In the same vein, it is crystal clear that section 2 (3) of the EFCC Act cannot subject the appointment of the chairman of the EFCC to Senate confirmation contrary to the provisions of section 171 of the Constitution.

In view of the foregoing, the implementation of the resolution of the Senate on the removal of Mr. Ibrahim Magu as the Acting Chairman of the EFCC should be ignored by the Presidency on account of its apparent illegality. However, the distinguished Senators who are desperate to institutionalize official corruption and impunity in the country by removing Mr. Magu from office may have to wait for the planned installation of the Senate President, Dr. Bukola Saraki as the Acting President of the Federal Republic of Nigeria!

Femi Falana (SAN) is a human rights lawyer and activist.