The Nigerian Presidency seems set to approach the Supreme Court for interpretation of Section 171 following its disagreement with the senate over the confirmation of Ibrahim Magu as chairman of the Economic and Financial Crimes Commission, EFCC. While Section 171 of the 1999 Nigerian Constitution, as amended, vests the power to appoint persons into extra-ministerial positions in the president, the EFCC Act says the president will appoint the chairman subject to senate’s confirmation.
The Cable quoted a presidency source who said the government had received a legal advice and believed it would win the impending legal challenge.
“In fact, Walter Onnoghen, before he became chief justice of the federation, ruled in the case of Chief Isaac Egbuchu V. Continental Merchant Bank Plc & Ors (Supra), at page 19, paragraph C that ‘the time-honoured principle of law is that wherever and whenever the constitution speaks, any provision of an act/statute on the same subject matter must remain silent.’ That is a clear indication that presidency is right to insist that section 171 of the constitution is superior to the EFCC act,” the senior presidency official said.
“Although it is the view of presidency that certain federal appointments should not require the confirmation of the senate based on Section 171 of the Nigerian constitution, the Buhari administration has continued to send such appointments to the senate pending the ultimate judicial interpretation of the matter.
“This is based on a legal advisory prepared by judicial and legal experts as a working document in the presidency regarding the differences in the constitutional interpretations on matters of certain federal appointments.”
An official of the presidency said it is “not accurate” to say presidency has started to act “unilaterally” on its own interpretation of Section 171.
“Even after the acting president, who spoke when he was VP in support of the view of some leading lawyers, the presidency has continued to send nominations to the senate both while the president himself was around and while away by the acting president,” he said.
“Since the time the acting president spoke and when senate recently expressed its disagreement, we have been sending nominations severally including into the INEC and other boards and commissions. So we are clearly not acting unilaterally based on our own interpretation of the law, even though we believe firmly we are right.
“The presidency believes that section 171 is clear that certain appointments do not require senate consent, but the presidency is not already behaving as if its interpretation of the law has become a policy.
“Presidency is persuaded that its interpretation is the correct one, but we are conscious and aware of the fact that only a proper judicial ruling on the matter would make it a settled policy that sits right with the rule of law. That is why we have not stopped sending all manners of nominations to the senate, most of which the senate has actually confirmed, even well after the acting president spoke.
“In fact, the conclusion of the legal advisory on the matter is very clear that a judicial pronouncement preferably by the supreme court is what will settle the matter.”
However, Magu has continued to function in the appointive position despite being twice rejected by the Senate.