Preamble: Case No.1
President Mohammadu Buhari appointed Ibrahim Magu the acting Chairman of the commission, and sent his name to the Senate for confirmation way back in December 2016. But the Senate refused to confirm Magu on the ground that the Department of State Security Services, DSS, had urged it, via a letter, not to confirm him. Mr President represented Magu to the Senate on Wednesday, 15th March, 2017; yet again, the Senate refused to confirm Magu’s appointment. The Senate’s official statement in the first instance was: “that based on available security report, the Senate cannot proceed with the confirmation of Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission. The nomination of Ibrahim Magu is hereby rejected and has been returned to the President for further action.”
This statement suggests that the Senate erroneously believes that the President nominates the Chairman while the Senate appoints.
The Economic and Financial Crimes (establishment) Act established the Economic and Financial Crimes Commission to be constituted by (a) a Chairman who shall – (i) be the chief executive and accounting officer of the Commission; (ii) be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or equivalent; and (iii) possess not less than 15 years cognate experience; (b) the Governor of the Central Bank of Nigeria or his representative; and (c) a representative each of the following Federal Ministries — (i) Foreign Affairs; (ii) Finance; (iii) Justice; (d) the Chairman, National Drug Law Enforcement Agency or his representative; (e) the Director-General of — (i) the National Intelligence Agency or his representative; (ii) the Department of State Security Services, DSS, or his representative; (f) the Registrar-General of the Corporate Affairs Commission or his representative; (g) the Director-General, Securities and Exchange Commission or his representative; (h) the Managing Director, Nigeria Deposit Insurance Corporation or his representative; (i) the Commissioner for Insurance or his representative; (j) the Postmaster-General of the Nigeria Postal Service or his representative; (k) the Chairman, Nigeria Communications Commission or his representative; (l) the Comptroller-General, Nigeria Customs Service or his representative; (m) the Comptroller-General, Nigeria Immigration Service or his representative; (n) the Inspector-General of Police or his representative; (o) four eminent Nigerians with cognate experience in any of the following, that is, finance, banking, law or accounting; and (p) the Secretary to the Commission who shall be the head of administration.
The members of the Commission, other than the Chairman and the Secretary, shall be part-time members. The Act further provides that the Chairman and members of the Commission, other than ex-officio members, shall be appointed by the President, which shall be subject to confirmation of the Senate.
The Nigeria Customs Service (NCS) was on the verge of implementing new vehicle import duty rules that many consider obnoxious, insensitive, wicked, infernal and unlawful. In response to public outcry, the Senate asked the Comptroller-General of the Nigeria Customs Service (NCS), Col. Hameed Ali, to stay the implementation of the policy, and appear before it to defend the policy. The first resolution directed Col. Ali to shelve the plan until he appeared before its committee on customs, but later turned around to ask him to appear before the Senate in plenary — in uniform. The Senate further asked Ali to shelve the proposed policy entirely.
These two cases have called to question the operations of the principles of separation of powers — upon which the structure of the Government of the Federal Republic of Nigeria rests — and the rule of law in the country’s constitutional democracy.
Nigeria’s Constitution allocates the powers of the Federation to three bodies. The legislative powers, the power to make laws, is vested in the National Assembly which comprises the Senate and the House of Representatives. The executive powers, extending to the maintenance of the constitution and the laws made by the National Assembly, are vested in the President to be exercised by him directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service. The judicial powers are vested in the courts. The doctrine of separation of powers means that neither the legislature, the executive, nor the judiciary should exercise the whole or part of another’s power, and in the distribution of powers amongst the organs of government the courts were vested with the exclusive right to determine justifiable controversies between citizens and between citizens and the State.
The idea of the rule of law is that everybody and every organ, agency or department of Government is under the law and must act with legal authority. Beyond this Diceyan conceptualization of the rule of law, a common thread that runs through all legal decisions and scholarly opinions on the subject is that to be lawful and authoritative, the action or inaction of an arm or agency of Government must be traceable to a law that is in itself lawful.
In refusing to confirm Magu, the Senate seems to have acted under the belief that it is the appointor whiles the President only nominates. The Act specifically asserts that the President appoints (not nominates) and that the Senate confirms (not approves). Appointment is defined by the Black’s Law Dictionary (8th ed) as the designation of a person, such as a non-elected public official, for a job, esp., the naming of someone to a non-elected public office. Confirmation in the context in which it is used in the Act is defined by the same Black’s law dictionary as the act of giving formal approval. Therefore, confirmation, as contemplated under the Act, is nothing more than the Senate crosschecking that the President has indeed appointed. Any other interpretation will make nonsense of the president’s power to appoint. By also relying on the case of a third party, the DSS — just one out of many members of the board of the commission, in making the decision to refuse to confirm Magu, the Senate embarked on a legislative judgment and thereby encroached on the powers of the judiciary. By its action, the Senate adjudged Magu guilty of the allegations made against him by the DSS — an action that is disrespectful of Magu’s rights. The Senate should also remember that the constitution is made to, among other things, create a buffer between such whimsical abuses and the rights of individuals like Magu.
The face-off between Col. Hameed and the Senate also exposes the Senate’s limited understanding of the limits of its legislative powers. Like every Nigerian, the Senate has the right to protest against the implementation of the policy of the Nigeria Customs Service, but it has no right to halt it. It does not have the power to determine whether or not the Service is acting lawfully or within its powers. It is for affected individuals to challenge the policy in court and for the court to decide its lawfulness or otherwise. It is also preposterous for the Senate to ask Col Ali to appear before it in uniform. Section 88(2) of the Constitution is explicit on how, when and why the Senate can invite an individual to appear before it. That power, as Femi Falana, SAN, rightly observed, is not at large but limited by that provision.
The Senate should know that the more it tries to grab space from the executive the more it loses face in the eye of the public that considers its posture self-serving and undemocratic.
It is also necessary for the public to bear in mind that the surrender of a public authority to threat or pressure undermines the rule of law. A public officer is therefore under duty to stand his grounds against those seeking to frustrate the exercise of statutory powers. I therefore commend Col. Hameed Ali’s stance on the matter.
It may also be worth noting that at the heart of the exercise of constitutional powers conferred on it by the constitution is the duty of the Senate to respect the rule of law. It has been observed and I agree that the rule of law is nothing if it fails to constrain overweening power. As I have noted, if Col. Hameed Ali’s proposed policy is viewed as unlawful or beyond the ambit of his powers and authority, the lawful thing to do is to subject his action and proposed policy to judicial review. It is the primary duty of the courts and not the Senate to patrol the boundary between the territory of the executive and the kingdom of the citizenry. That is why, as disciples in the temple of justice, lawyers are enjoined to support the judiciary in the maintenance of the integrity of the fences that divide legal constraints from the sphere of freedom of action. I therefore urge the Senate to concentrate on its law making duties and allow Nigerians to espouse their rights or grievances in the courts. The idea of holding court over petitions from the citizenry should be reviewed.