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.

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

Corruption: Umar is frustrated — Presidency

*Says elite who benefited from NSA fighting back

The Presidency, last night, rebuffed allegations of selectiveness in the war against corruption made against Muhammadu Buhari’s administration by the erstwhile military governor of Kaduna State, Col. Abubakar Umar, describing him as a frustrated man.
President Muhammadu Buhari
It also said it had become accustomed to a fight back by the elite class.
The Presidency in a statement by a Senior Special Assistant to the President (Media and Publicity), Mallam Garba Shehu, also said none of the elite class fighting back had shown evidence of the selectiveness of the fight against corruption.
He further said President Buhari had not at any time interfered with the prosecution of corruption suspects, even as he said several of those fighting back had at one time or the other benefited from security votes from the office of the National Security Adviser. Mallam Garba was, however, quick to exclude Col. Umar from such beneficiaries.
Col. Umar (retd) had in a statement issued, weekend, flayed the Presidency for directing its anti-corruption war at only the opposition, saying the decision to ignore court orders to release erstwhile NSA, Col. Sambo Dasuki (retd(, is inexcusable.
He further said the Buhari administration had in its actions sought to humiliate former President Goodluck Jonathan who he, Umar, praised for his excellent democracy credentials.
Responding, yesterday, Shehu said: “By now, President Buhari’s administration is quite familiar with the barrage of verbal attacks that have accompanied the administration’s determined war against corruption.
“A number of Nigeria’s elite, uncomfortable with the disruption of business as usual, have fought viciously, usually via the media. However, this comment, coming from Colonel Umar, is highly disappointing, because he is not in a position to label accusations. He should, instead, allow others to do this.
“Curiously, despite the various accusations and media attacks, no one has so far come forth with any evidence of President Buhari’s selectiveness in the war against corruption.
“All the agencies involved are allowed freedom to carry out their responsibilities, without any interference whatsoever from the Presidency.
“If Colonel Umar or anyone else feels that they have any evidence to the contrary, they are encouraged to make this public.
“A number of Nigerian elite have over the years, benefitted from various forms of corruption, including monthly payouts from the office of previous National Security Advisers.
“Let me clarify that this is not in reference to Colonel Umar in particular.
“The Buhari’s administration has offended so many of our greedy elite by putting a stop to this, plugging many of the holes through which our country’s resources, belonging to each and every one of us, were looted by a few.
“Naturally, these elite are frustrated. But we shall not allow them to frustrate the war against corruption.
“The war against corruption is here to stay. As long as President Buhari is in power, Nigerians can be rest assured of that. It will not succumb to media attacks. It will not be deterred by false accusations. It will not be quenched by disgruntled elements.”

Source: Vanguard