Hopes of confirmation dashed as lawmakers invoke Senate rule
• Forget him, Nigerians tell Buhari
• No, he’s incorruptible, must continue as acting
EFCC Chairman –Sagay, others
By Omoniyi Salaudeen and Onyedika Agbedo
Hopes by the acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, to get re-nomination by the Presidency for the third time for the Senate’s approval may have been dashed, as the lawmakers have vowed to invoke section 131 of the Senate rules to counter the move. There are feelers that the President is trying to have a discussion with the Senate President, Bukola Saraki, with a view to reconsidering Magu’s rejection as chairman of the anti-graft agency.
One of the leading lawmakers, Senator Dino Melaye, who spoke with Sunday Sun at the weekend, insisted that the Senate’s rejection of Magu’s confirmation was final, adding that any attempt to represent him would meet a brickwall. According to the rule, once a nominee has been screened and rejected, the president can no longer represent such appointee for confirmation. Section 131 of the standing rules reads in part: “Nominations neither confirmed nor rejected during the session or within 21 working days in the case of ministerial nominees shall be returned by the Clerk to the National Assembly to the president of the Federal Republic of Nigeria and shall not again be made to the senate by the president of the Federal Republic of Nigeria.”
Some relevant stakeholders, including members of the Presidential Advisory Committee on Anti Corruption (PACAC), have faulted the Senate’s rejection of the acting chairman of the EFCC based on the report of the DSS and have canvassed presidential intervention in the row. They argued that the rejection was done in bad faith since the DSS report, which the lawmakers relied upon in their resolution, had been investigated and debunked by the office of the Attorney-General of the Federal. Speaking with Sunday Sun, the Chairman of (PACAC), Prof. Itse Sagay (SAN) said that Magu would continue to be acting chairman of the anti-graft agency whether the upper legislative chamber likes it or not. He queried the motive of the Senate in arriving at the decision, pointing out that the Department of State Services (DSS) report, which it relied on had been debunked. He said: “My personal view is that it is a perverse decision based on negative reasons because they themselves know that his performance has been first class. He is committed; he is very successful and incorruptible. It is ridiculous for them to be talking of integrity because he is an epitome of integrity. It is very strange that, that talk of integrity could come from some mouths. So, the issue is done in bad faith. That (DSS) report has already been debunked so many times. It has been investigated by the Attorney-General and found that it lacked any substance. The man is innocent.”
Asked whether it was not necessary for the DSS to speak up on the matter being an agency under the Presidency and lay the controversy to rest, Sagay quipped: “That is their own problem. It is not for me to tell them what to say. As far as I am concerned, even if they refuse to confirm him, he will continue to be the acting chairman. Whether they like it or not, he will be a thorn in their flesh.”
He emphasised that Magu would remain in office in acting capacity for as long as the President wants him to, but noted that the decision of the senators had shown that they were hostile to the anti-corruption war. “It is an attempt to stem the tide of the graft war. That is the implication of what they are doing. If you see a man of excellence and he is doing his job excellently well and you want to stop him, then what you are trying to create is a setback for the whole struggle against corruption,” he stressed.
Also speaking in the same vein, the Second Vice President, Nigerian Bar Association (NBA), Monday Onyekachi Ubani, noted that there is no provision in the EFCC Act that says the President cannot re-present Magu to the Senate for confirmation as many times as possible. “There is no law also that says the President cannot put him in an acting capacity for as long as he wants, but it may not be above the four-year tenure of the EFCC chairman. So, he cannot act for more than four years but, there is no provision in the EFCC Act that bars him from continuing to act. So, if the president feels that Magu is the person he wants to use to fight corruption, fine,” Ubani said.
Asked whether Magu’s actions in acting capacity after being rejected by the Senate would still be recognised by law, Ubani added: “All these while he has been in acting capacity, were his actions not recognised by law? His actions were recognised by law because there is a provision for somebody to occupy that office in acting capacity. So, pending the time the President will feel that he wants to drop him, his actions will still be recognised by law. The position now is that the Senate has refused to confirm him as the substantive chairman of the EFCC, but nothing has removed him from serving as the acting chairman of the Commission.”
Mr. Paul Ananaba (SAN), also expressed a similar view in a live television programme, which was monitored by Sunday Sun. He said: “I am concerned that this particular nomination was sent a second time and at the second time, a Senate dominated by the APC rejected him. But of a greater concern to me and indeed to many Nigerians is that the report, which the Senate talked about, is from the DSS, which is also under the Presidency. Could it have been that the report of the DSS was hidden? Why is it that the report showed up in the Senate after the President had sent a letter saying ‘I have cleared this and that.’
“This is part of the problems we are facing in the country. It shows that to some extent, the DSS is independent, otherwise there should be collaboration between the DSS, ICPC, EFCC, Police and in fact, all the agencies that are in the forefront of the war against corruption. Some of the senators who are shouting, ‘crucify him, crucify him’ are likely to be senators that are either being prosecuted by the EFCC or are in the process of being investigated.”
Ananaba also opined that, “the President may have to look at the nomination again. If he feels strongly that he needs to re-nominate him as the substantive chairman of EFCC, he will go ahead and do that because there is no particular number of times the law states the he can bring forward a name.”
However, Mr. Mike Ozekhome (SAN), in his own reaction, took a swipe at those arguing that President Buhari still has the constitutional room to keep Magu in office, saying he would be carrying a moral burden in doing so. “Buhari can no longer re-present Magu’s name again because of the serious moral burden, ethical challenges and legal impediments thus imposed on him with this second definitive rejection, this time after a full screening. Re-presenting his name will raise more questions than answers as to why the insistence on one man. This is unlike the first instance when the Senate merely turned him down without any screening. That it was done shortly after the celebrated arrival of President Buhari from his medical vacation makes it more interesting and more significant, as it underlines the independence of the legislature, the Senate. It is high time President Buhari looked for another competent Nigerian out of about 180 million people in population. After all, there was once a Nuhu Ribadu, a Mrs Waziri and a Mr Ibrahim Lamorde. Like the cliché goes, soldiers go, soldiers come, barracks remain,” Ozekhome posited.
President of the Global Centre for the Defence of Human Rights, Frank Agbedo, also said it would be ridiculous for the President to re-present Magu to the Senate for confirmation. He said: “To me, the issue of the President re-nominating Magu again when the Senate has rejected him twice will be ridiculous, in the sense that the problem is not with the Senate. The Senate has acted based on a report by the DSS, which by duty, they cannot overlook. If the DSS, which is an agency under the Presidency, says that this man has failed integrity test, then the problem is within the Presidency and not with the Senate. If an organ of the Presidency says that Magu is not qualified to be appointed as substantive chairman of the EFCC, and the Senate acted based on the advice of that organ, why should anybody accuse the Senate of not doing its job well or pursuing a hidden agenda. They acted purely based on their constitutional powers and it will be unfortunate if the President re-nominates Magu for the position. Unless there is a fresh report from the DSS clearing Magu of the allegations, for as long as that DSS report remains as it is, the Senate cannot confirm his nomination because if they do, they will be acting contrary to their role as provided under the constitution.”
Agbedo, a foremost human rights lawyer, added: “Therefore, I don’t subscribe to the view that the President can re-present him again and again. That will be making mockery of the whole process. We must not forget that the man is not the only Nigerian that is qualified to be the chairman of EFCC. But that is what some people are making the whole scenario to look like. Now, that is the problem of the country; we rely so much on personalities and not on institutions. Let us think about a nation that is built on strong institutions not strong personalities because when the strong personality goes you will start looking for another one again. But when you build strong institutions, you don’t necessarily need strong personalities to head them. When the institutions are strong, whoever comes in there will be absorbed under the system and it will flow.”
Chima Emmanuel Nnaji, a lawyer and public affairs analyst, also told Sunday Sun that it was time President Buhari gave up on Magu as far as the chairmanship of the EFCC was concerned. Nnaji noted: “My take is that no single person is indispensable and this situation should not be made to come across as if in this country it is only one man that can do that job. It also filters negatively on the President if he re-nominates the same person after the institution of the Senate has found him unworthy for that job. On the side of Magu, it will also be negatively perceived if he insists on putting himself forward; that means he is forcing himself on the system that has rejected him. In fact, if they had bowed out at the level of the first nomination, which the Senate turned down, probably this dust would not have been raised, which has somehow impugned on his character and integrity. Any further appearance of muscling him will further reveal more things that probably will not be good for him and the image of this government. So, it might be better for the Presidency to allow him to go his way. They have tried to give him a job and it didn’t work and it’s not by force. I think the President should look for another person; there are so many credible Nigerians. Besides, that particular position is supposed to be headed by a lawyer who has a security background so that he can understand the nuances of democratic values. The EFCC today has caught the image of an institution that does not obey the law; it is only when it favours them that they will quickly obey the law.”
Nnaji agreed that the constitution allows the President re-nominate Magu again but queried: “What impression would he be creating? The institution of the Senate based its decision on the DSS report. The DSS has not withdrawn that report and it is not something that can easily be overlooked. So, since that thing that made the child to cry in the night is still there, the child will also cry in the morning. So, I don’t think there is any reason Magu should be thrust up again.”
Former presidential candidate of Citizens Popular Party (CPP), Maxi Okwu, also a lawyer, argued that it was illegal for Magu to have held the position in acting capacity for this long not to talk of his continuing in the office after the Senate’s rejection of his nomination. Okwu said: “The mode of appointment of the chairman of the EFCC is provided for by law. The President will nominate the person and the Senate will ratify or reject. Until the Senate confirms the nomination, it is not active. In fact, it is a shame that the man has been acting for so long. It is only in Nigeria that such a thing will happen. The right thing to do is that the President should not allow anybody to act. Under best practices, the President should make timely nominations to the Senate so that the matter could be taken care of as quickly as possible. To me, being in a position in acting capacity is illegal unless the substantive person is on leave or incapacitated. But when there is no substantive head or incumbent in a position, nobody should act. Who are you acting for? The second time rejection is a slap on the president’s wrist. It should send him a clear signal given the fact that it is not usual for the Senate to reject his nominees. I think the President should read the handwriting on the wall and forward another nomination to the Senate. Buhari should re-examine his interest in Magu and nominate another person. The Senate is very much in order in the exercise of its powers and has rejected him and that is it.”
Okwu agreed with the position of other legal practitioners that the President can re-nominate him for as long as he desires, but he queried: “Is it politically correct? It is politically untidy and incorrect. Let’s look at the U.S. that we copy every time. In the U.S., when you see that you are having or will have problems of confirmation with the legislature, you decline your nomination. So, if Magu were someone who parades the best ethics, he should decline even if Buhari wants to re-nominate him. Magu should save us the torture by declining further nominations unless he is there for personal reasons.”
While the development is suggestive of a rumpus in the Presidency, there has been uneasy calm in the Senate over the issue. Indications emerged that the senators, especially from the ranks of the ruling All Progressives Congress (APC), are not on the same page on the matter. Former Senate Leader, Ali Ndume, openly faulted the action of the Senate while speaking on television programme recently.
Ndume had stressed that if the Senate could refuse to confirm Magu as chairman of the EFCC based on allegations leveled against him, Saraki who had a case in court should not be the Senate President. He said: “We have all been accused; I have been accused of sponsoring Boko Haram. The Senate President is still going to court; same as other members who have cases in court, yet they occupy seats in the Senate. So, if you say because of the allegations he (Magu) should not be confirmed, then I should not be a sitting senator and Saraki should not be there as Senate President.”
Amidst the controversy, Magu has also told those expecting him to throw in the towel to perish the thought. “My priority is to fight corruption. My non-confirmation has not changed anything; I will work until the last day whether confirmation or no confirmation. The greatest violation against human rights is crime against the society and humanity. Everybody has a duty and responsibility to fight corruption, and I also have a responsibility. I assure you that we will fight to finish,” Magu declared while speaking with members of some civil society organisations in Abuja shortly after the Senate rejected his nomination.
From every indication, Magu’s rejection by the Senate is one issue that will linger on in the polity for a while. And it has further put a quirk on the very precarious relationship between the Executive and the Legislature under this administration. As at the time of filing this report, all that the Presidency has said was that it “will respond to the non-clearance of Magu as EFCC boss after it receives official communication, in writing, from the Senate.” As it is, no one knows what it has up its sleeves. But there is no doubt that it’s weighing all the options available to it amid the intrigues.
The Senate had last Wednesday, rejected Magu’s nomination as the chairman of the EFCC for a second time. The first time the Upper Chamber rejected Magu’s appointment was on December 15, 2016, citing a security report of the DSS. In the report, Magu was accused of living in a house paid for by a “corrupt” businessman. He was also accused of extorting money, through a proxy, from suspects. But President Buhari wrote to the Senate earlier clearing Magu of the allegations and asking the Senate to reconsider his (Magu) nomination. In the letter, which Senate President Bukola Saraki read during Senate plenary on January 24, the President urged the Senate to “favourably accept my re-nomination of Ibrahim Magu Mustapha for the position of the EFCC Chairman, having received adequate clarification considering the matter relied upon by the Senate in arriving at its decision.”
But the DSS again wrote to the Senate last Tuesday, affirming its security report, which indicted Magu of corruption, with the emphasis that he “has failed integrity test.” The Senate again relied on the report to reject Magu.
There is now a strong indication that President Muhammadu Buhari may step into the row by opening talk with the senate leadership. If the lawmakers stick to the rule, then the fate of Magu to get senate confirmation may have been sealed.