Friday, April 7, 2017

Re: USA Africa Dialogue Series - Re: Senate Lacks Constitutional Power to Reject Magu, says Falana

Dear Prof.,

You and Femi Falana are wrong in law.

The fact that the EFCC was created after the approval of the 1999 Constitution does not mean that it is of lesser status than Commissions that were extant and incorporated at the time of the approval of the Constitution.  Therefore, it must be treated in the same manner as those existing Commissions of equal status.

The Constitution cannot contain all the foreseeable Commissions that would be established in the future.  Under the rule of legislative interpretation called Nocitur a Soccii, the EFCC should be treated the same way as the Constitution treats Commissions of the same status.  It can not be removed or treated differently.

Therefore, to complement the need for checks and balances, the President may appoint, but the Senate must approve just as it does in the case of other prescribed commissions of equal status as the EFCC prescribed in the Constitution.

What the President can do is to continue to present Magu who he will retain in an acting position.  When his acting term ends, the President will re-appoint him and re-present him until the Senate becomes reasonable.  For the rule of Noscitur a Soccii see below:



Cheers.

IBK  



_________________________
Ibukunolu Alao Babajide (IBK)
(+2348061276622)
ibk2005@gmail.com

On 7 April 2017 at 03:05, Mobolaji Aluko <alukome@gmail.com> wrote:

My Summary:  This PMB Presidency needs to start acting as if it has some back-bone.....



My People:


Barrister Falana (SAN) is right when he indicates that the EFCC Establishment Law Section  Part 1 Section 2(3) which states that:


QUOTE


(3) The Chairman and members of the Commission other than ex-officio members shall be appointed by the President subject to the confirmation of the Senate.



UNQUOTE


conflicts  with Section 171 (1) on Public Service bodies which states that:


QUOTE

171. (1) 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.

(2) The offices to which this section applies are, namely -

(a) Secretary to the Government of the Federation;

(b) Head of the Civil Service of the Federation;

(c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad;

(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and

(e) any office on the personal staff of the President.

(3) An appointment to the office of the Head of the Civil Service of the Federation shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of the Federation or of a State.

(4) An appointment to the office of Ambassador, High Commissioner or other Principal Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate.

(5) In exercising his powers of appointment under this section, the President shall have regard to the federal character of Nigeria and the need to promote national unity.

(6) Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office;

Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the President ceases to hold office.


UNQUOTE

Please come with me for elaboration....

The real issue is that in the 1999 Constitution, the phrase "subject to confirmation" is mentioned fourteen times - and the EFCC is not even featured in that Constitution, nor  are "Commissions like the EFCC not mentioned in a foreshadowed generic sense for confirmation by the Senate:


QUOTES OF SECTIONS IN THE CONSTITUTION "subject to confirmation"

86. (1) The Auditor-General for the Federation shall be appointed by the President on the recommendation of the Federal Civil Service Commission subject to confirmation by the Senate 

126. (1) The Auditor-General for a State shall be appointed by the Governor of the State on the recommendation of the State Civil Service Commission subject to confirmation by the House of Assembly of the State

153. (1) There shall be established for the Federation the following bodies, namely:

(a) Code of Conduct Bureau;

(b) Council of State;

(c) Federal Character Commission;

(d) Federal Civil Service Commission;

(e) Federal Judicial Service Commission;

(f) Independent National Electoral Commission;

(g) National Defence Council;

(h) National Economic Council;

(i) National Judicial Council;

(j) National Population Commission;

(k) National Security Council;

(l) Nigeria Police Council;

(m) Police Service Commission; and

(n) Revenue Mobilisation Allocation and Fiscal Commission.

(2) The composition and powers of each body established by subsection (1) of this section are as contained in Part 1 of the Third Schedule to this Constitution.

154. (1) Except in the case of ex officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate.

(2) In exercising his powers to appoint a person as Chairman or member of the Council of State or the National Defence Council or the National Security Council, the President shall not be required to obtain the confirmation of the Senate.

(3) In exercising his powers to appoint a person as Chairman or member of the Independent National Electoral Commission, National Judicial Council, the Federal Judicial Service Commission or the National Population Commission, the President shall consult the Council of State.

198. Except in the case of ex-officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State.

231. (1) The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.

(2) The appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the National Judicial Council subject to confirmation of such appointment by the senate.

238. (1) The appointment of a person to the office of President of the Court of appeal shall be made by the President o the recommendation of the National Judicial Council subject to confirmation of such appointment by the senate.

250. (1) The appointment of a person to the office of Chief Judge of the Federal High Court shall be made by the President on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the Senate.

256. (1) The appointment of a person to the office of Chief Judge of the High Court of the Federal Capital Territory, Abuja shall be made by the President on the recommendation of the National Judicial council, subject to confirmation of such appointment by the senate.

261. (1) The appointment of a person to the office of the Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja shall be made by the President on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the Senate.

271. (1) The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.

276. (1) The appointment of a person to the office of the Grandi Kadi of the Sharia Court of Appeal of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the House of Assembly of the State.

281. (1) The appointment of a person to the office of President of a Customary Court of Appeal shall be made by the governor of the State on the recommendation of the national Judicial Council, subject to confirmation of such appointment by the House of Assembly of the State.


C - Federal Character Commission

 

7. (1) The Federal Character Commission shall comprise the following members:

(a) a Chairman; and

(b) one person to represent each of the states of the Federation and the Federal Capital Territory, Abuja.

(2) The Chairman and members shall be appointed by the President, subject to confirmation by the Senate.



UNQUOTE


So agreeing with Barrister Falana (SAN), let me repeat that the 1999 Constitution contains the phrase "subject to confirmation" to Senate and State House of Assembly fourteen times - and not only is the EFCC is NOT featured in that Constitution (rhe EFCC was established AFTER the Constitution had been approved), but "Commissions like the EFCC are not mentioned in a foreshadowed generic sense for confirmation by the Senate:  The Chairman of the EFCC can be considered  :Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated"  as stated in the 1999 Constitution  Section 171.

And so, since that section of the Constitution has not been amended.  Magu should remain as the EFCC without re-presentation to the Senate by the Presidency, just as Heads of agencies and commissions NOT referred to in the 1999 Constittution.should NOT be referred to the Senate..  This PMB Presidency needs to start acting as if it has some back-bone.....

And there you have it.



Bolaji Aluko


SAHARA REPORTERS

Senate Lacks Constitutional Power to Reject Magu, says Falana

    Lagos-based human rights lawyer, Femi Falana has again criticized members of the national assembly for exercising power beyond their constitutional limit. He also described the senate headed by Senator Bukola Saraki of Kwara Central as morally bankrupt to screen the leadership of anti-graft agency such as Economic and Financial Crime Commission, EFCC. Falana spoke to Channel TV during the week against the backdrop of the Nigerian Senate's rejection of   the acting chairman of EFCC, Ibrahim Magu.


Lagos-based human rights lawyer, Femi Falana has again criticized members of the national assembly for exercising power beyond their constitutional limit.

He also described the senate headed by Senator Bukola Saraki of Kwara Central as morally bankrupt to screen the leadership of anti-graft agency such as Economic and Financial Crime Commission, EFCC.

Falana spoke to Channel TV during the week against the backdrop of the Nigerian Senate's rejection of   the acting chairman of EFCC, Ibrahim Magu.

He described the rejection of Magu and subsequent calling for his replacement as "impunity".

According to him, section 171 of the constitution has vested exclusive power in the president to appoint any person to hold certain office or act in that capacity.

For example, the constitution allows the president to appoint secretary to the government of the federation, permanent secretaries, heads of service, and heads of extra ministerial department such as EFCC without the confirmation of the Senate.

The exception is ambassadorial position or headship of foreign mission, he said.

Falana said the presidency was ill advised for sending name of the EFCC's boss to the Senate for confirmation in the first place because there is no constitutional provision that compels such action.

He said the section 2(3) of the EFCC act that the executive tries to fulfill is superseded by section 171 of the constitution.

He advised the lawmakers to seek the amendment of the constitution if they must remove such constitutional power of the president because as the law currently stands "refusing to confirm the nomination of a public officer does not annul the acting capacity of such an officer."

He also said that senators who are standing trial or being investigated by EFCC should not have been part of the screening exercise conducted for Magu because of their conflict of interests.

"This senate will not have approved the nomination of Magu because not less than 15 members are either standing trial or they are under investigation for corrupt practice.

The fact that you are standing a trial or under investigation means you cannot sit."

Falana said the senate headed by Saraki could not have confirmed Magu.

"The senate President, Dr. Bukola Sataki ensured that Mallam Nuhu Ribadu was removed when he was to be charged over the   collapse of Societe Generale Bank. Lamode was removed when he invited the wife of the Senate President, Dr. Bukola Saraki.  Magu could not have been confirmed because EFCC is investigating the allegation that  $3.5 billion from Paris-London loan refund has been traced to his account. How could the house headed by such a man confirm Magu," he asked.


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