The row over the Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu, assumed a new dimension yesterday, with the Presidency insisting that his nomination does not require the confirmation of the Senate. It based its decision on an advisory prepared by judicial and legal experts on Section 171 of the 1999 Constitution. The advisory unearthed a ruling of the Supreme Court on the matter where the Chief Justice of the Nigeria (CJN), before his elevation as CJN, had ruled in line with the view of the Presidency on the matter. The CJN, Justice Walter Onnoghen, had ruled that the Constitution overrides any provision of an Act /Statute. But the Presidency said it will await the judicial review of Section 171 for the final say on Magu. The details of the advisory were obtained last night by our correspondent.
The legal advisory asked the Presidency to await a judicial pronouncement on Section 171. The source said: “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.” Some extracts from the legal advisory states: “The divergent positions being held by the Executive and the Legislature on the subject of confirmation …is one that requires timely and ultimate resolution. “Such resolution could only be reached through the judicial process…Such interpretation would lay to rest the lingering crises between the two arms.” Concerning the issue of the Acting EFCC Chairman, the legal advisory concluded that “the rumblings in the discourse on the confirmation of the EFCC Chairman have more to do with politics than with the law. “It is trite that, by the rule of ejusdem generis, any office to which Section 171 or other Sections of the Constitution do not confer on the Senate the power of confirmation of appointment to such office cannot be imported and accorded equal footing as the mentioned offices.” The advisory affirmed the powers of the President to appoint in acting capacity into positions such as the EFCC chairmanship. It also clarified that “in the recent past, the ministerial nomination of late Prof. Abraham Babalola Borishade (Ekiti State) by President Olusegun Obasanjo was rejected repeatedly by the Senate.” “In fact, it would be recalled that this particular nomination was presented four times in 18 months before it was eventually confirmed by the Senate. “This position is because of the long established and entrenched principle of law that any legislation that is inconsistent with the provision of the Constitution is null and void and of no effect whatsoever to the extent of such inconsistency. (See the Supreme Court cases of DR. OLUBUKOLA ABUBAKAR SARAKI v. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40013 (SC) and CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR-40053 (SC).”