Femi Falana (SAN), EFCC, Mr. Magu and the Question of Conflict Between Section 171 of the 1999 Constitution and Section 3 of the EFCC Act of 2002

INTRODUCTION

Is EFCC an Extra-Ministerial Department or a Civil Service pursuant to Section 171 (2) (b) and (d) of the 1999 Constitution of the Federal Republic of Nigeria as amended, therefore, vitiating the confirmation of its Chairman by the Senate as specified under Part 1 Section 3 of the EFCC (Establishment) Act of 2002?

According to Mr. Femi Falan (SAN) and JS Okutepa (SAN), EFCC Chairman is protected by Section 171 (6) of the 1999 Federal Constitution, which reads "Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office." Therefore, and going by their interpretation, if the appointment is at "the pleasure of the President" he or she (that's the candidate) is not subject to a confirmation hearing by the Senate as specified under Section 3 of the EFCC Act of 2002. Acting on that premise and point of law, the Presidency has remained intransigent, daring the Senate to a fight, insisting that Chairman Magu is the Chairman of EFCC. The Acting President, Professor Osinbajo, even at a public event, remains unyielding in his position that indeed, Mr. Magu doesn't need the confirmation of the Senate, citing the opinion of Mr. Femi Falana SAN to buttress his arguments.  But I disagree with my two learned Senior Advocates and the Acting President. There is a disconnect between Section 171 of the 1999 Constitution and Section 3 of the EFCC Act of 2002 regarding the appointment and confirmation of the EFCC Chairman as to time and intent. I strongly believe that Section 3 of the EFCC Act can be interpreted and applied in isolation of Section 171 of the 1999 Constitution. There is no conflict or inconsistency requiring an override, as you would see in the Analysis Section of this essay coming up shortly. In sum, I respectfully disagree with Mr. Falana (SAN) and JS Okutepa SAN. It is my humble opinion that my learned Senior Advocates are misleading the Presidency, and specifically, the Acting President. Chairman Magu or any Chairman of EFCC is subject to a hearing and confirmation of the Senate.

WHAT THE LAW SAYS

For ease of analysis, I reproduce verbatim the relevant sections from the EFCC enabling laws of 2002 and from the 1999 Constitution of the Federal Republic of Nigeria as amended.

ONE – 
THE EFCC ACT

Part 1. Establishment of the Economic and Financial Crimes Commission, Etc.

1. There is established a body to be known as the Economic and Financial Crimes Commission (in this Act referred to as "the Commission") which shall be constituted in accordance with and shall have such functions as are conferred on it by this Act.

2. (1) The Commission shall consist of the following members

(a) a chairman, who shall be

(i) the Chief Executive and Accounting Officer of the Commission,'

3) The Chairman and members of the Commission other than ex-officio members shall be appointed by the President subject to the confirmation of the Senate.

TWO – 

THE CONSTITUTION

Section 171 of the 1999 Constitution of the Federal Republic of Nigeria. 

(1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President. 

(2) The offices to which this section applies are, namely – 

(a) Secretary to the Government of the Federation; 

(b) Head of the Civil Service of the Federation; 

(c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad; 

(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and 

(e) any office on the personal staff of the President. 

(6) Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office.

MY ANALYSIS IN PLAIN ENGLISH

The Law is very clear regarding the appointment of the Chairman of the EFCC. According to Section 3 of the Act, The Chairman and members of the Commission other than ex-officio members shall be appointed by the President subject to the confirmation of the Senate. What is ambiguous in that? Nothing really, except that Mr. Femi Falana (SAN) and all the lawyers advocating for Chairman Magu argued that Section 3 of the EFCC Act of 2002 should not be interpreted in isolation of Section 171 (1) (a-e) and (6) of the 1999 Constitution of the Federal Republic of Nigeria. Now, pause for a moment and go back to re-read the entire Section 171 above and search for EFCC or inference to EFCC. The closest you can find is Section 2 (b) Head of Civil Service of the FederationSection and Section (2) (d) that reads: “Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated.” That’s it. Mr. Falana and the Presidency were able to discover conflict by construing EFCC as a Civil Service or incorporating EFCC into the vague “Extra-Ministerial Department of the Government” category.

The urgent questions remain: Is EFCC a Civil Service or Extra-Ministerial Department pursuant to Section 171 (2) of the 1999 Constitution of the Federal Republic of Nigeria thereby freeing its Chairman from Confirmation Hearings by the Senate pursuant to Part 1, Section 3 of the Economic and Financial Crime Commission (Establishment) Act 2002?

EFCC is not a Civil Service. It is not a subsidiary or an affiliate of any Ministry or Department. By the way, is the 1999 Constitution of the Federal Republic of Nigeria that elastic to the extent that we have to integrate an Institution as Structurally Distinct as EFCC into the unenumerated list called Extra-Ministerial departments? EFCC is an independent Institution duly regulated by the Economic And Financial Crime Commission (Establishment) Act of 2002, but nevertheless, still subject to a nullity to the extent of its inconsistency with the provisions of the 1999 Constitution as amended. And in the absence of any such inconsistency, the EFCC Section 3 prevails. Here, there is no inconsistency or conflict. Besides, at the enactment of the 1999 Constitution of the Federal Republic of Nigeria, EFCC was not in existence. And I boldly submit that Section 3 of the EFCC Act of 2002 is not an Extra-Ministerial Departments contemplated by Section 171 (d) of the 1999 Federal Constitution when the Section was drafted. My position is public policy-driven. Constitutionalism aside, I do believe that it would amount to an obscene concentration of power in the Executive arm of government if a position as sensitive and influential as the appointment of the Chairman of EFCC is left at the discretion of the President. That's not good enough for multiparty democracy. Therefore, Section 3 of the EFCC Act of 2002 requiring Senate Confirmation hearing can be construed and applied without regard to Section 171 of the 1999 Constitution. By so holding, Chairman Magu or any Chairman of EFCC for that matter is subject to the confirmation hearing of the Senate. And given the fact that the Senate has "rest its case" on Officer Magu, culminating in a vote of rejection, keeping him in office by the Presidency, exemplifies dictatorial tendencies and a blatant violation of the universally recognized principles of Separation of Powers and Checks and Balances.

CONCLUSION. 

I want to thank every one of you who contributed to the debate on this issue on my Facebook Timeline. Your insights and perspective were most valuable. With all due respect to my learned colleagues as well as those who cast themselves as laymen during the debate, I want to respectfully add that the issue is more than the existence or otherwise of a conflict between Section 171 of the 1999 Constitution of the Federal Republic of Nigeria and Section 3 of the EFCC Act of 2002. I consider it morally repugnant and legally incomprehensible to leave at the discretion of one person or grant that one person the power to exercise such a right in the Constitution coined as "howsoever" in Section 171 (2) (d). That clause is not only vague, but it is also patently overbroad. To allow it to stand is to permit the President to have unfettered discretion - fully unrestricted and without any modicum of constraint - in the exercise of the provisions set forth under Section 171 of the 1999 Constitution as amended. And it is my judgment that the nature of the appointment/confirmation inherent or defined under Section 3 of the EFCC Act of 2002, is not within those class of unenumerated titles (Extra-Ministerial Departments) that are susceptible to Executive overreach contemplated by the drafters of Section 171 of the 1999 Constitution as amended. At the end of the debate on my Facebook, most of the lawyers involved advised the Presidency to proceed to the Supreme Court of Nigeria for a final answer. But I and another lawyer disagreed. We suggested that given the explosive nature of the situation we are in presently politically, dragging the National Assembly to the apex court by the Acting President is a most undesirable channel of resolution of the crisis. We ask for compromise and understanding between the two arms of government.  And with that, I rest my case.