Legal battle begins over Magu’s confirmation

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Ag. Chairman EFCC Ibrahim Magu

Legal fireworks began yesterday over the re-nomination of Mr. Ibrahim Magu as Economic and Financial Crimes Commission (EFCC) chairman with two separate suits filed at the Federal High Court for and against his confirmation.

The two suits may be consolidated and heard by a judge.

In the first application before the court, a lawyer, Oluwatosin Ojaomo, urged the court to compel Senate President Bukola Saraki to ensure Magu’s immediate confirmation.

He also said the EFCC Establishment Act does not make provision for the rejection of any nominee of the President for the office.

Ojaomo said the security report relied upon by the Senate to reject Magu is ultra vires and irrelevant to his confirmation .

He sought a declaratory order:

  • deeming that the 1st defendant has confirmed the appointment by the President of the Federal Republic of Nigeria of Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (Establishment) Act, 2004;
  • that the 1st defendant does not possess the statutory power to reject Magu’s appointment, according to the EFCC (Establishment) Act, 2004; and an order
  • activating the court’s statutory powers for the interpretation of the provisions of Section 2(1)(a)(i)(ii)(iii) and 2(3) of the EFCC Act, 2004, with respect to the appointment of the EFCC chairman and the subsequent confirmation of the appointment by the Senate, according to the dictates of the law. And for such other order or orders as this Honourable Court may deem fit to make in the circumstances.

Ojaomo said: “That the nitty-gritty of this matter is that on or around the 14th day of July, 2016 the President of the Federal Republic of Nigeria acting through the Vice President of the Federal Republic of Nigeria wrote a letter to the Senate House of National Assembly of the Federal Republic of Nigeria requesting the Senate of the National Assembly to confirm the appointment of Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC).

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“That the President of the Federal Republic of Nigeria acted within the ambit of his statutory power relying on the provisions of Section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act 2004.

“That the Senate refused/neglected to attend to the letter of appointment wherein the name of Ibrahim Magu was sent as the duly appointed Chairman of the Economic and Financial Crimes Commission for several months.

“That the Senate of the National Assembly of the Federal Republic of Nigeria after about six months of keeping the appointment letter of Ibrahim Magu conducted a plenary session wherein they came out and issued a press statement through their spokesperson on the 15th day of December, 2016 that the statutory appointment of Ibrahim Magu by the President of the Federal Republic of Nigeria as the Chairman of the Economic and Financial Crimes Commission has been considered and rejected by the Senate of the National Assembly.

“That the Senate claimed that the rationale behind the rejection of the statutory appointment of Ibrahim Magu was because there was an unfavorable security report received against him and by virtue of this reason the appointment of Ibrahim Magu is therefore rejected by the Senate of the National Assembly of the Federal Republic of Nigeria.

“That the Senate acted ultra vires by rejecting an appointment validly made by the President to the office of the Chairman of the Economic and Financial Crimes Commission according to the provisions of Section 2 (1) (a) (i) (ii) (iii) and Section 2 (3) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.

“That the Senate does not possess the powers to reject the appointment of the President to the office, according to the act creating the said commission.

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“That the only ground on which the Senate can reject a person appearing before it is when the person is nominated and recommended to the Senate for screening, vetting and subsequent confirmation like a ministerial nominee. Alas the role of the Senate in this instant case is to confirm the qualification of the appointee as sent by the president and where the Senate is of the view that they require additional information in accordance with the statutory requirement stipulated by the act with respect the qualification of the appointee, they can refer to the president for further clarification but not to reject a statutory appointment validly made by the President.

“That the role of the Senate in the confirmation of the appointment of a Chairman validly appointed by, according to the Act that created the commission, is to ensure that the requirement stipulated in Section 2(1) (a) (i) (ii) (iii) of the EFCC Act are duly complied with by the President in making the appointment.

“Where these requirements are fulfilled, the Senate is statute barred from rejecting the presidential appointee as no such provision is made for rejection of a presidential nominee for the office of the chairman of the EFCC in the said Act or any law.”

In a separate suit, the Incorporated Trustees of Save Nigeria Group and the Incorporated Trustees of Kingdom Human Rights Foundation International have asked the court to declare Magu’s seat vacant because he was rejected by the Senate.

They asked for an order to compel President Muhammadu Buhari to appoint a new nominee for the office.

The defendants in the suit are the President; the Secretary to the Government of the Federation; Mr. David Babachir Lawal; the Magu; the Attorney-General of the Federation; and the Senate.

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The plaintiffs pleaded for an order prohibiting and restricting the 1st defendant (President Muhammadu Buhari) from re-nominating  Magu as the substantive chairman of the EFCC following the Senate’s rejection of his nomination at the votes and proceeding of December 15.

They also urged the court to determine the following issues:

“Whether or not the provisions of the Federal Civil Service are applicable to the EFCC; and whether under the Federal Civil Service Rules, a person appointed in acting capacity can act in such capacity for more than six months, in view of Rules 010101, 020603 and 020604 of the Federal Civil Service Rules 2008.

“Whether or not the office of the chairman of the EFCC (the 4th defendant) is vacant; on the ground of the Senate’s rejection of the nomination and failure to confirm Magu (the 5th defendant), who has been acting in that capacity for more than six months.

“Whether or not the Senate rejection of the 1st defendant’s nomination of Magu is a reasonable and lawful ground to warrant and compel the 1st defendant to appoint/nominate another person as the chairman  without any further delay.

“Whether or not the four-year term of office provided for in section 3 (1) of the EFCC Act is only applicable to a substantive chairman of EFCC who is appointed to act in the capacity of chairman , pending the appointment and confirmation of a substantive Chairman.

“Whether or not the appointment of Magu who has been acting in that capacity for more than six months is illegal, null and void on the ground of non-provisions and recognition of an Acting Chairman in the entire provisions of the EFCC Act.

The Nation

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