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?

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.

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.

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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?

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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

‘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.’’

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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.

Source: Vanguard

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