By Toyoabasi Jimmy
The Senate last week rejected the appointment of Mr. Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC). The rejection was basically hinged on the security report submitted to the Senate by the State Security Service (SSS).
Similarly, the Senate last year refused to consider the appointment of Mr.Magu. His name was sent back to President Buhari and the Senate gave the President the window of re-submittingMr.Magu’s name for confirmation.
Following the rejection of Mr. Magu by the Senate, opinion is divided on whether Mr. Magu can continue as the acting chairman of EFCC and whether the President can re-submit his name to the Senate for confirmation. This article aims at tackling these issues.
WHAT THE LAW SAYS ABOUT EFCC CHAIRMANSHIP
Section 2(3) of the EFCC Act regulates the appointment of the Commission’s chairman. It states thus: the chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to CONFIRMATION of the Senate.
Given this article’s purview, it is necessary to analyse the meaning of ‘confirmation.’
MEANING OF CONFIRMATION
The Black’s Law Dictionary (8th Edition) defines ‘confirmation’ as ‘an act of giving formal approval.’ Also, the New International Webster’s Comprehensive Dictionary of the English Language (2010 Edition) defines ‘confirmation’ as ‘the act of confirming.’ ‘Confirm,’ the verb form of ‘confirmation’ is defined by the dictionary as ‘to ratify; sanction.’
From the definitions, it is clear that the act of confirmation is not ceremonious, but fundamental. It forms a critical aspect of a valid appointment. It also follows therefrom that where an appointment is subject to confirmation, such appointment when made, is inchoate (incomplete) and can only be complete where the appointment has been confirmed (approved) by the confirming authority (in the instant case, the Senate). It is submitted that confirmation is a condition to be fulfilled for anyone to fully assume the functions of chairman of EFCC.
MAGU’S ACTING STATUS VIS A VIS THE LAW
It has been argued that the rejection of Mr. Magu by the Senate does not stop the functioning of Mr. Magu in acting capacity. With respect, this position is disturbing.
Having established the significance of confirmation, through its definition, it is clear that Mr. Magu cannot continue in his acting capacity. Canvassing the position that Mr. Magu can continue in acting capacity in the face of rejection by the Senate will defeat the ends of section 2(3) of the EFCC Act and every other provision of the law (including that of the Constitution) that subjects certain appointments to Senatorial confirmation.In Jegede v. Akande (2014) 16 N. W. L. R (Pt. 1432) P. 43 it was held that a provision of statute should not be construed to defeat the obvious ends the statute is designed to serve.
Confirmation operates as a check on executive power. It ensures that a person appointed by one individual (i.e., the president) is subjected to screening by a body of representatives that cuts across all the states of the Federation. Confirmation forms an integral part of separation of power and checks and balances.
Thus, arguing that Mr. Magu can continue acting will defeat everything confirmation process represents in a constitutional democracy. Such technical rules employed by the proponents of this school of thought have no place in democracy. The courtin Jegede v. Akande(supra) statedthat technical rules of interpretation are inadmissible in so far they would defeat the principles of government enshrined in the Constitution. Separation of power is a principle of government fully recognized by our Constitution.
It is submitted that confirmation by the Senate being a condition to the continued occupation of the office of the chairman of EFCC, the rejection of Mr. Magu by the Senate brings to an end his occupation of that office. Mr. Magu ceases to be the chairman of the EFCC immediately he was rejected by the Senate.
Of what use and object will confirmation be where a person rejected is allowed to continue acting in the position he has been rejected by the Senate? If it is correct that Mr. Magu can continue in acting capacity, does it meanthat a ministerial nominee can assume office even when he is rejected by the Senate?
It is worthy of note that our confirmation process is modelled on American confirmation system. At no time did someone continue to act where his appointment was rejected by the Senate of the United States.Roger Taney (then Attorney General of United States) was appointed the United StatesSecretary of Treasury by President Andrew Jacksonduring recess. Upon resumption of the Senate, his appointment was rejected on 24th June, 1834. He did not continue functioning as Secretary of Treasury. Same goes with other figures like Caleb Cushing (rejected in 1843); James S. Green (rejected on 15 June, 1844); John Tyler (rejected on 14 Jan., 1844), etc.
RESUBMISSION OF MR. MAGU’S NAME
It has been argued by some legal scholars that the rejection of Mr. Magu by the Senate does not bar the president from re-presenting to the Senate Mr. Magu for confirmation.
With respect, this position seems not to align with the object and ends of the confirmation powers given to the Senate.
It is submitted that where any appointee or nominee is rejected by the Senate, the president or whoever is the appointer cannot re-present the same person for confirmation. Won’t it be ridiculous to have an appointee’s name re-submitted more than 10 times?
Allowing resubmission of a rejected name will defeat the spirit of the law. Where the Senate rejects an appointee or nominee, it is final, and the door is shut against the appointee or nominee vis-à-vis that particular position. He cannot be reconsidered by the Senate. Moreover, the Senate’s Rules does not support resubmission of someone already rejected.
Rejection shows that something is intrinsically wrong with the appointee or nominee or that the appointee or nominee suffers some form of disability. And re-presenting the person again cures no such disability. This position accords with the spirit of section 2(3) of the EFCC Act and other confirmation provisions of the law.
It is important to note that what the Senate did to Mr. Magu last year did not amount to rejection. The Senate merely, as a matter of courtesy, sent back Mr. Magu to the President so that the presidency could put its house in order, (This reasoning accords with the statement released by the Senate’s spokesperson immediately after the incident where it stated that ‘the Senate cannot PROCEED with the confirmation…’). So it cannot be said that since that the Senate rejected Mr. Magu the first time and still went ahead to reconsider his appointment, thus he can still be reconsidered.
ABDICATION OF LEGISLATIVE FUNCTION BY THE SENATE
It is sad to note that the Senate introduced a pernicious precedent into confirmation process when it sent Mr.Magu’s name back to the president for further action, instead of acting on the appointment by either confirming or rejecting Mr.Magu.
It is this uncanny procedure that they adopted that is coming to bite the Senate in its ass. It is this action that has given the ‘resubmission base’ more voice.
It is submitted that the Senate failed in its responsibility when, in its attempt to be courteous to the president, refused to carry out its confirmation functions and thereby technically ceded its powers to the executive arm. The Senate should learn to guide its power jealously.
This article has steered clear of the politics that preceded and enveloped the confirmation of Mr.Magu, but lingered only on legal issues.
Having come to its conclusion, it is pertinent to ask whether it is only Mr. Magu that can steer the course of EFCC. The report by the SSS, though said to be maliciously motivated, is indicting of Mr. Magu. Mr. Magu should have known that his position demanded absolute discretion and it was expected of him to lead a life similar to that of Caesar’s wife.
The criticism labeled against the Senate for the rejection of Mr. Magu seems misplaced. It is the presidency that should be blamed for not putting its house in order. The Senate rejection of Mr. Magu’s appointment should at least be seen in a different light; a breakaway from the apron string of the executive.
Finally, partisanship and sentiments should not be allowed to becloud interpretation of the law. The Senate should approach the court for interpretation of its confirmation powers if Mr. Magu is allowed by the executive to continue acting as EFCC’s chairman.