S171 of the Constitution not superior to S.2(3) of EFCC Act – Ozekhome SAN

Chief Mike Ozekhome, SAN, is a constitutional lawyer and human rights activist. In this interview, Ozekhome spoke on how section 171 of the 1999 Constitution cannot override section 2 (3) of the EFCC Act, why the Presidency must comply with Senate’s disapproval of Ibrahim Magu as EFCC Chairman and related issues.
Excerpts:
DESPITE the Senate’s two times rejection of Ibrahim Magu as the Substantive Chairman of the Economic and Financial Crimes Commission,EFCC, he still continues in an acting capacity. What is your opinion on this?
Ozekhome
Oceans of ink have been spilled on the Senate’s rejection of Mr Ibrahim Magu, as EFCC Executive Chairman. It has been canvassed ferociously, especially by members of the Presidential Anti-corruption Advisory Committee, (PACAC), that notwithstanding the resounding rejection of Magu by the Senate, he can still continue in an “acting capacity” ad infinitum. This line of argument runs counter to logic and legal provisions. It simply amounts to intellectual insincerity.
Intellectual insincerity
Section 171 of the 1999 Constitution of the Federal Republic of Nigeria, which allows the
Appointment of Heads of extra-ministerial agencies without Senate’s approval has generated some arguments, to the extent that the Senate has been urged to approach the court for interpretation of Section 171 of the constitution. What is your view?
Section 171 of the 1999 Constitution, touted by those canvassing the position merely gives the President power to appoint and dismiss persons to the offices therein specified, i.e, Secretary to the Government of the Federation, Head of Service, Ambassadors/High Commissioners, Permanent Secretaries, Heads of Extra-Ministerial Departments and, personal staff of the President.
The Executive Chairman of the EFCC which was created five years after the promulgation of the 1999 Constitution, was never one of the offices. The EFCC is not an Extra-Ministerial Department, (EMD).
Can Section 171 of the 1999 Constitution override Section 2 (3) of the EFCC Act?
No! The whole farcical argument that Section 171 of the 1999 Constitution has over-ridden S.2(3) of the EFCC Act is false. The proponents of this argument appear to deliberately ignore the fact that the reference in Section 171(2) (d) is to Permanent Secretaries and Heads of Extra-Ministerial Departments of the FGN, no matter how designated.
Having regard to this phrase, it is obvious that the key thing is to determine what is an Extra Ministerial Department and what Agencies of government are Extra Ministerial Departments. It is a ‘technical term’ which does not cover all agencies of governments.
It certainly does not cover statutory Agencies or Corporations and Commissions established by law. EMDs, within the government bureaucracy, are established administratively (just like ministries), to perform a specific function, or a cross cutting function.
They are usually placed under the Presidency, rather than under a Minister; but critically, the moment that office is backed by a law, it ceases to become an EMD.
For example, the present Ecological Funds Office is an EMD. The Debt Management Office (DMO), before it was backed by law, was also an EMD. It is not coincidence that Section 171(2) (d) refers to Permanent Secretaries and Heads of the EMDs in the same subsection, since ministries and extra ministerial departments are administrative, rather than statutory creations.
Some lawyers have argued that Section 171(2) (d) is a technical term and it does not cover all agencies of governments. What is your position?
The EFCC is a direct creation of statute and its composition and operations are wholly regulated by the very statute creating it. The EFCC is only supervised by the Attorney General of the Federation in respect of prosecution, merely because of his prosecutorial powers under Section 174 of the 1999 Constitution. This does not necessarily render the EFCC an extra ministerial department under the office of AGF, in the same way you have the office of the DPP or Director Civil Litigation. Otherwise, we will contend the same for every agency, including NNPC, INEC, RMAFC, CCB, etc.
There is no where in the EFCC Act where you will find any reference to the EFCC as a department of the Federal Ministry of Justice, or of the Presidency such as to make it an Extra-Ministerial Department.
The Ministry of Justice, among others, is given equal membership of the Board of the EFCC. Section 2(3) of the EFCC Act does not in any way contravene section 171 of the Constitution, but merely aids it. This is because a Constitution cannot encompass every future matter.
Thus, it is a non sequitur to argue that a procedure for the exercise of every appointment under Section 171 of the Constitution must be entrenched specially therein, or else it becomes unconstitutional. By section 171 (2) of the Constitution, the power to appoint Heads of Extra- Ministerial Departments either in acting or “substantive” capacities is quite distinct. Thus, the powers of the President under S. 171 of the Constitution to avoid a vacuum in appointment in an “acting” capacity arising from death, resignation, dismissal, expiration of tenure or incapacitation of a substantive occupant, can never conflict with the specific requirement to appoint a person to the substantive position in the very enabling Act.
Can the President simply appoint the Governor of Central Bank of Nigeria without comply with S. 8(1) of the CBN Act, which requires Senate confirmation?
We may as well argue that the President can simply appoint the Governor of CBN without complying with S. 8(1) of the CBN Act, which requires Senate confirmation.
Recall that before Magu, Obasanjo had appointed Nuhu Ribadu (the pioneer Chairman of EFCC), with the advice of Kanu Agabi, SAN as the AGF, in accordance with S. 2(3) of the EFCC Act; that Michael Aondoaka did so under Yar’Adua, for Farida Waziri, and that Mohammed Bello Adoke SAN, did same under Jonathan, with the appointment of Ibrahim Lamorde?
It is the EFCC (Establishment) Act, No. 1, LFN, 2004, that gives life to and breathed the oxygen of existence, into the EFCC. It is the same EFCC Act that gives the EFCC powers to “sue and be sued in its corporate name”; makes it a “body corporate with perpetual succession and a common seal”; and designates the EFCC as the “Financial Intelligence Unit (FIU) in Nigeria, which is charged with the responsibility of co-ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.”
In recent times, the EFCC had frozen individual’s accounts, including yours, through an ex-parte orders. What do you have to say about such developments?
Without the Act, EFCC is non existent, and cannot freeze citizens’ accounts and attach their properties secretly and clandestinely through ex-parte orders, with reckless abandon, as they have been doing. It is the same Act, not S. 171 (2) of the 1999 Constitution, which brought the EFCC into existence, that also prescribes the “Composition of the Commission.
In your view, what do you think should be done to make the Presidency and the Senate work hand-in-hand in line with democratic principle?
The President shares the power of appointment with the Senate. More compelling is the fact that the section expressly makes the exercise of the President’s undoubted power for such appointment subject to the Senate’s confirmation or decision to reject.
The Black’s Law Dictionary defines “subject to” as: “liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided; answerable for”. The phrase “Subject to” when used in an enactment, was defined in NDIC V. OKEM ENTERPRISE LTD. & ANOR.(2004) LPELR-1999(SC), where the Supreme Court, held, per Uwaifo, JSC:
Constitutional democracy
‘It must therefore be understood that subject to introduce a condition, a restriction, a limitation, a proviso: It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section.’’
See also, SPDC NIGERIA LTD V. EZEUKWU &ORS (2010) LPELR-CA/PH/132/2002.
The compulsory involvement of the Senate constitutes a check and balance in a constitutional democracy such as we operate. It highlights the hallowed doctrine of separation of powers, between the three arms of government as theorized by Plato, Aristotle, Jean-Jacques Rousseau, Thomas Hobbes, John Calvin, and mostly popularized in 1748 by the great French Philosopher, Baron de Montesquieu.
This has been given legal imprimatur by Sections 415 and 6 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). Assuming, without conceding that Section 11 of the Interpretation Act creates the office of an “Acting Chairman”, as some have argued, it is respectfully submitted that such appointment automatically ceases the moment the co-appointer (Senate), refuses to give the constitutionally mandated confirmation.
Going by Section 2(3) EFCC Act, Magu also automatically lost his “acting” capacity during the period of his proposal to the Senate for confirmation, which the Senate eventually rejected, after hearing.
The term “Heads of Extra Ministerial Department”, what does it really mean?
The term “Heads of Extra Ministerial Department” (EMDs), used in section 171 (2) is a technical term which does not cover statutory Agencies, Corporation or Commissions established by law (such as EFCC, NNPC, etc). EMDs only operate within government bureaucracy established administratively, just like ministers, to perform specific or cross-cutting functions.
An EMD, such as Ecological Funds Office, is usually placed under the presidency, rather than under a Minister. Before the Debt Management Office (DMO) was enacted into an Act, it was an EMD directly under the presidency like, the Permanent Secretaries and personal staff of the President.
Upon enactment, the DMO ceased to be under the presidency. It is now restricted to the DMO Act creating it. The President may decide to create 100 Ministries and 200 Permanent Secretaries because they are solely within his prerogative, in so far as he observes section 147 (3) of the 1999 Constitution, which prescribes at least 1 minister for a State, who shall be an indigene of that State.
But, the President can not, in the same vein, create any offices, or donate any powers to the EFCC outside the EFCC Act, 2004. So EFCC should simply not equate Magu, nor should Magu simply approximate, EFCC. If we understand this, then we will stop the present embarrassment to the country, where the country’s only headlines are about corruption, corruption and corruption.

Interview culled from Vanguard.

Buhari’s absence from FEC meetings worrisome—Tsav

Former Lagos State Commissioner of Police, Alhaji Abubakar Tsav, has said President Muhammadu Buhari’s inability to attend the weekly Federal Executive Council, FEC, meetings should be a source of concern to all who care for the country.
Speaking in a telephone interview yesterday in Makurdi, the former Commissioner said: “Since he initiated the fight against corruption and it is going on fiercely and corrupt people are being taken to courts and custody, and then suddenly he is not attending meetings, people who care for the country should be disturbed.
“My worry is that if for any reason the President is incapacitated, the war against corruption may not continue with the drive and vigor like when the President is around.”

Credit: Vanguard

Jonathan, from beginning, was too small for the Presidency – Obasanjo

Former President Olusegun Obasanjo has said that former President Goodluck Jonathan from his first days as President showed he was too small for the office, saying he, Obasanjo, acted more as an opponent of Jonathan than a supporter of Muhammadu Buhari ahead of the 2015 presidential poll.
Ex President Jonathan and Gen. Obasanjo (Rtd)
Obasanjo, who said Jonathan deceived him that he would not give Mrs. Diezani Allison-Madueke the petroleum portfolio in his cabinet was deceived into believing that he could use money to buy the 2015 presidential election.
Obasanjo in the book, Against the Run of Play: How an Incumbent President was defeated in Nigeria , written by former presidential spokesman, Segun Adeniyi, also revealed that Jonathan was gripped by the fear that Buhari, as president, would jail him or lead him to an early grave.
In the 204-page book, former President Jonathan is himself quoted as saying he could not be held accountable for provocative remarks made by some of his supporters, even as former Senate President, David Mark, is also quoted in the book as alleging that he forewarned the former president about the alleged conspiracy against him in the north but to no avail.
Problems of minority agitation
Obasanjo in the book is quoted as saying that following Umaru Yar’Adua’s death in 2010, he endorsed Jonathan for the 2011 presidential election principally to solve the problems of minority agitation in Nigeria.
The former President said: “I saw the emergence of Jonathan as an opportunity to solve the problem of minority agitation. The three majority ethnic groups in Nigeria can always sort themselves out but not so for the minority. A good example is my state here in Ogun.
“Despite the best of intentions, nobody from Ogun West has been able to become governor because of this minority issue and it will take a conscious effort to make it happen. So, it was in the context of that I had to plead with prominent people in the North to allow Jonathan run for a term.”
I warned him not to make Diezani petroleum minister
But in a tone laden with regrets, Obasanjo pointed out that there were certain things Jonathan did that fell below his expectations as a former president.
“There were certain decisions taken by Jonathan very early in his administration that pointed to the fact that the office was bigger than him and one of them was the appointment of a petroleum minister,” he said.
According to Obasanjo, he cautioned Jonathan not to appoint Diezani Alison-Madueke to such a sensitive sector but the president ignored his counsel.
“Jonathan gave me the impression that he was not going to give her the portfolio but at the end he did and we can see the consequence. He, of course, knew what he was doing,” Obasanjo stated.
Why I opposed Jonathan
The former president also hinted at what riled him against Jonathan and why he parted ways with him in the run up to the 2015 election, a development which has given the impression that he was actively working in support of Buhari’s candidature. But Obasanjo denied any direct support to Buhari.
He said: “I didn’t join them in supporting Buhari; I joined in opposing Jonathan so Buhari was just a beneficiary of my opposition to Jonathan since my position was AOBJ: meaning Any Option But Jonathan.”,
Obasanjo explained that Jonathan and his handlers believed that they could buy the last election and that they were so arrogant about it that the PDP would print only one nomination form for him and him alone. He said: “If he was wise, he would have yielded the ticket to somebody else in the PDP.”
Jonathan was not really afraid about life after office but Buhari
The former president, who also criticised the role played by the military in the last election, said he suspected that Jonathan was not really afraid about life after office but Buhari, his successor.
“I believe the President’s concern or fear is not about life after office per se, because he and I have had occasions to talk about this both seriously and jovially. I believe the President’s fear is particularly motivated by the person he sees as his likely successor, that is General Buhari. I believe the people would have been telling him that Buhari is a hard man; he would fight corruption and he (Jonathan) may end up in jail if not in the grave,” Obasanjo narrated in the book.
The book also placed the defeat of Jonathan at the 2015 poll on the utterances of those close to the former president, chief among them being his wife, Patience.
The book recalls the allegation by former Niger State Governor, Babangida Aliyu, accusing the former first lady of insulting the North with incendiary language, thereby alienating them from Jonathan during the election.
It quoted Mrs. Jonathan as making a denigrating remark against Almajiri in the north, by saying “Our people no dey born children wey dem no dey count. Our men no dey born throw way for street; we no dey like people from the other side”, an apparent reference to the concept of Almajiri common in the north.
Reminded in the book that some persons close to him, especially Chief Edwin Clark and Asari Dokubo, were rather vocal and provocative in their utterances, Jonathan wondered why he should be held accountable for their personal opinions.
The former president retorted: “Okay, let us agree for the sake of argument that Chief Clark and the others were offensive, what about those from other ethnic groups who were also making incendiary statement about my person with insinuations about people who wear bowler hats?
“I am not defending whoever may have crossed the line among Ijaw people but let us be fair, why should I be held accountable for that and you would not hold other leaders accountable for what politicians from their own ethnic groups also said? he queried.
On why Jonathan lost the election, former Senate President, David Mark, said that he saw the defeat coming and had pointed out the unrealistic voting projections made by the party about the North to the former president and the conspiracy against him but he was not taken seriously.
He said Jonathan should have seen the handwriting on the wall and done something about what was pointed out to him but no action was taken.
Mark lamented, “I saw it and at difference times, I pointed out to him and the party that the projections being made by some people around the president about what the voting pattern in the north would were wrong.
“I could see the conspiracy and the gang-up building up in the north against the aspiration of Jonathan but my voice was drowned out by those who took it for granted that a sitting president, and one from PDP, could not lose,” Mark said.
The former Senate President also mentioned that the former Vice President, Namadi Sambo, was also aware that Jonathan was not strong in the North but apparently had little to say in the campaign to re-elect Jonathan.
“Some people were deceiving the president with the kind of false scenarios they were painting for him. The VP could see the conspiracy but I don’t know how much influence he had on the campaign. Why Jonathan couldn’t see it until it was too late is what I find difficult to understand,” Mark pointed out.

Source: Vanguard

Bring my files, I “ll work from home – Buhari

Again, President Muhammadu Buhari on Wednesday stayed away from the meeting of the Federal Executive Council, FEC which held at the Presidential Villa, Abuja.
Similarly, over 20 out of 36 Ministers were equally absent at the meeting.
Vice President Yemi Osinbajo presided over the meeting.
President Muhammadu Buhari signs Instrument of Ratification of the Paris Agreement on Climate Change in State House on 28th March 2017
The Opening preliminaries of Wednesday’s meeting were not short of what played out penultimate Wednesday when the already seated Osinbajo and the Ministers who were expectant of the President, appearing to preside over the meeting got disappointed following Buhari failure to show up.
On the same vein, the meeting did not hold last week.
Officials later attributed that to the Easter holiday.
Meanwhile, all expectations that the president would attend yesterday’s edition that featured the acting Secretary to the Government of Federation, SGF, Dr. Habibat Lawan also failed.
At exactly 11 am, Osinbajo got whispers from the State Chief of Protocol, SCOP and thereafter called for the National Anthem and opening prayers, signalling the commencement of the meeting.
Journalists were later excused from the meeting which got underway.
Briefing State House correspondents at the end of the meeting that lasted only for two hours, the Minister of Information and Culture, Lai Mohammed said that the president couldn’t attend because he needed some rest at home.
Mohammed added that the President has requested that all the files on his table be brought to him, saying he would be working from home.
He said: “We just concluded the Federal Executive Council meeting, I’m sure you noticed that the President was not there. He was not there because he asked that he be allowed to rest and asked the VP to preside.
“And he will be working from home. He has asked all his files to be taken to him in the house. He will be working from home today”.
The Minister also repeated the same to Vanguard which sought more clarification in an exclusive interview.
“He was not in that meeting because the President sent word that he wanted to rest and he wanted the VP to preside over and he asked for all his files to be brought back to him that he will be working from the house”.
Told that there was an air of surprise back in the hall when the Vice President called for the recitation of the national anthem, Mohammed said “that’s your own opinion”.
Also asked whether the government would formally apologize to The Punch Newspaper over the “sack” of its State House correspondent, Mr. Olalekan Adetayo from the Presidential Villa as demanded by the organization, the Minister said that the steps already taken by the Presidential Media aides should suffice.
“I think we should blow a matter out of proportion. The special adviser to the president on Media, Mr. Adesina immediately took a step that reversed that. I think that is proof enough that this government is not about stifling the press.
“You forget it is the same administration that restored the pass of Dutchewalle Reporter. I am happy with what the media aides have done. I think that settles it”, he said.

Five Reasons Why You Need A Digital Bank In Your Life

1. It’s the fastest way to open an account.
Even at its quickest, walking into a bank to open an account takes time, time you don’t really have. Switch to a digital bank and you’ll open your account in less than five minutes anywhere you can access the internet. No lengthy forms to fill, no queues, no help needed.
2. Access all banking services from your phone.
A digital bank offers the same services regular banks provide without any of the hassles that come with going to a physical bank. Submit copies of your ID card and utility bill, request a debit card, have it delivered to you and activate it from your phone. You can even lock and unlock your debit card without calling customer support. Your phone is basically the new bank. Can anything be more convenient?
3. Saving won’t break your back.
Putting money away can be terribly hard even when you know it’s the right thing to do. A digital bank takes the pressure off you by automatically saving a predetermined amount of money every day toward a goal you set. It’s perfect for days when willpower isn’t enough to make you save.
4. Better money management.
You can’t hide from yourself anymore, not with a digital bank tracking your spending and reporting expenses to you (like you don’t already know). It’ll also help you stick to a budget with the option of setting a daily spending limit. That’s a good way to learn financial discipline.
5. You can forget about remembering to pay bills on time.
Forgetting to pay bills is annoying, even more so when it’s a really important one like your power bill (or your DSTV subscription in the middle of football season). Anyone can forget, but a digital bank remembers and its scheduler will pay your recurring bills as long as there’s enough money in your account. The scheduler works for transfers too, sending money as promptly as your bills are paid.
https://goo.gl/SRz0mE
If you’re ready to leave the stress of regular banks behind, Wema Bank just launched ALAT, Nigeria’s first fully digital bank. And for all these reasons and more, it’s worth trying out. https://goo.gl/SRz0mE

Sellers, buyers of PVCs risk 2-years jail term, N.5m fine – INEC

Sellers and buyers of permanent voter’s cards risk two years jail term and a N500,000 fine, according to Alhaji Abubakar Sadiq, INEC Administrative Secretary in Sokoto State.
INEC PVCs
Sadiq disclosed this on Wednesday in Sokoto, at a one-day Stakeholders’ Forum on the Continuous Voter Registration Exercise, scheduled to begin on Thursday.
The exercise is expected to be flagged off by Mrs. Amina Zakari, INEC National Commissioner in charge of the North West.
He said that a similar punishment would be meted to any person found to be in possession of a voter’s card unlawfully.
“There is also a one-year jail term, N100,000 fine, or both, for any person who makes a false statement, fails to give information or facilitate the registration of a fictitious person,” he said.
He said that a five-year jail term, N500,000 fine, or both, awaited anyone who induced any person to refrain from registering a voter.
According to Sadiq, same punishment will be meted out to any person who hinders another from registering as a voter.
The official said that the offences contravened the provisions of the Electoral Act, 2010, as amended, and warned members of the public to steer clear of them.
He said that INEC was working with security agencies to prevent political parties from hijacking the exercise.
Sadiq warned INEC staff to avoid any action that could compromise the integrity of the exercise, saying that anyone caught would be sanctioned.
A cross section of the stakeholders, who spoke commended the commission for being proactive, and promised their support toward the success of the exercise.

Source: Vanguard

5 Years In Enugu, Over 100 Trips With PMT, No Accidents.

I schooled in University of Nigeria, Nssuka. I spent an extra one year in Enugu where I managed media equipment for a popular Reverend Father there in the state. I spent a good number of years in the coal city, getting better in my profession.

Considering I am from Delta state, I had to travel home every now and then, both as a student and a worker. In all my years in Enugu, Peace Mass Transit (PMT) was my preferred transport firm. There was this distinction about them that made them different from the many other transport firms.

It was rare to go into PMT Old Park in Enugu and get delayed. This was one of the many turn off from other transport firms around. You hear excuses like "we dey wait for two passengers" or "abeg help me call vulcanizer, my tire don less" and all the 121 reasons that usually go wrongly.

I keep wondering why Peace Mass Transit always come under attack. Vehicles have accidents, no matter the brand, make our model. Even the name of a transport company cannot safeguard it from accidents, that's why it is surprising that some persons have taken it as their life's mission to bring Peace Mass Transit down through media campaign.

Having spent not less than half a decade in Enugu, I'm sure i traveled over 100 times to Delta state via Onitsha. All my trips was with Peace Mass Transit, not one of my journey ended in accident. I also know some have traveled even more than I did without accidents.

I have on more than one occasion had to report a driver who I believe will be punished. Yes, not everyone was as lucky as I am with having safe trip, but accidents are not peculiar to one transport company. They can happen to anybody. We can only pray to God for journey mercies.

Don't blame me if I don't believe the whole story about Peace Mass Transit this, or PMT that... With about 5 years of my life doesn't in Enugu, over 100 trips made from Onitsha to Enugu and vice versa, don't judge me if I tell you that Peace Mass Transit (PMT) is the safest transport company I have traveled with.

By Monnel..