‘No provision for acting chairman in EFCC act’

• Senior Lawyers Urge President To Nominate Replacement
• Senate: We ‘Ve Been Vindicated

Senior lawyers have warned that the continued stay in office by the chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, after two unsuccessful screening attempts at the Senate breaches the enabling law of the anti-graft agency.

The lawyers disclosed that there is no provision for acting chairman under the EFCC (Establishment) Act, 2004, adding that since Section 3 of the EFCC act provides for Senate confirmation, the powers of the President in such appointment is not absolute.

Lagos lawyer, Sylva Ogwemoh (SAN) said: “The power of the President of the Federal Republic of Nigeria under the Economic and Financial Crimes Commission (Establishment) Act, to appoint a Chairman for the EFCC is not absolute. The President’s appointment is subject to confirmation by the Senate of the Federal Republic of Nigeria.

“What this means in effect is that the President cannot under any circumstance act alone in the appointment of a Chairman for the EFCC, without the confirmation of the Senate, and where the Senate has refused confirmation as in the case of Magu, that matter ends there.

“This is because there is no provision in the EFCC Act for the office of an acting Chairman as the head of the Commission. The office created by the Act is that of a Chairman who shall be the Chief Executive and Accounting Officer of the Commission.”

Ogwemoh contended that “proceeding to retain Magu in the face of the non-confirmation by the Senate may be viewed by many as a way of circumventing the law” noting, “although the gentleman is doing well in the performance of his duties; the law is the law and must be obeyed by all Nigerians.”

Former Abia State Attorney General and commissioner for Justice, Awa Kalu (SAN) said the best thing to avoid a violation of the enabling act is for the president to nominate another person.

He said: “Since the Senate has rejected his nomination, the best thing is for the President to nominate another person. That is also the international best practice. If the law says your position requires Senate confirmation, the most reasonable thing is that you cannot be acting indefinitely, without confirmation; otherwise the confirmation requirement in the law will become redundant.

Kalu noted that justification for the rejection is immaterial if the law must be applied, stressing, “whatever the issues are, not minding his capacity to do the job, he failed confirmation twice, so he can return to his job as a policeman.”

But a renowned professor of Law and senior advocate, who does not want his name mentioned, said there is no room for indefinite acting capacity for the agency, adding: “If there is no room, then it means that he was just trying to fill a void.”

“Even acting is supposed to be for a given period. There is no way somebody will continue to act indefinitely. Magu has gone for Senate screening unsuccessfully twice. I have not read the Act setting up the EFCC, but the information available to me, which I considered authentic, is that there is not even a provision for acting in the agency.

“In other words, you either be a substantial chairman or not. Therefore, there must have been a fundamental flaw in leaving him to work in acting capacity all these while. Having said so, given that the person has to be subjected to parliamentary scrutiny and confirmation and having done so unsuccessfully twice, I think that the best thing is for another person to step in,” he emphasised.

The law teacher said if the tradition and convention in civilised climes are to be followed, the idea of representing someone should not even arise, unless there is obvious evidence that obviates what has been previously done.

But, Albert Akpomudje (SAN) said the rejection twice shows that there’s a crack between the executive and the Senate, remarking that before presenting the name for a second time, the ruling party, APC, with its majority in the Senate, ought to have done its homework well.

His words: “I read that the rejection was on account of what the DSS wrote to the Senate. If those things are truth, then I don’t see the reason the President must insists on the man heading the EFCC. The constitution did not make any provision as to how it should be resolved, if the confirming authority refuses the nomination of an appointer. That is the same thing with the Senate refusing to confirm the nomination of Mr. President, otherwise, it has to be a political resolution.”

Citing the instance when the National Judicial Council (NJC) nominated a candidate for the office of Chief Judge of Rivers State and the governor who was supposed to be the appointing officer rejected the nomination, Akpomudje declared: “It is the kind of scenario that played out in Rivers State when Chibuike Amaechi was the governor.

“There’s no legal provision in the case of these government agencies as to how long one can be in acting capacity. So the onus is on the President to find another person for the job.”

Meanwhile, spokesman of the Senate, Dr. Aliyu Sabi Abdullahi has stated that the leaked report of the Directorate of State Security (DSS) sent to the Attorney General and Minister of Justice, Mr. Abubakar Malami, SAN, on the integrity of Mr. Ibrahim Magu has vindicated the decision of the legislative chamber to reject his nomination as chairman of the Economic and Financial Crimes Commission (EFCC).

In a statement yesterday, in Abuja, Abdullahi said: “Following several calls made to me today by journalists seeking my comments on the leaked report on Mr. Ibrahim Magu, which was more damning than the one submitted to us, I can only say that myself and my colleagues have been vindicated.

“From that report, which is now public, it is obvious the Director General, State Security Service even tried to give Magu soft landing in the report that was sent to the Senate. The recent report is messier and shows that our decision not to confirm his nomination was right.

“We therefore call on all Nigerians to continue to have full confidence and trust on the Nigerian Senate as it discharges its responsibilities according to the letter and spirit of the Nigerian constitution.”