By Carl Umegboro
PURSUANT to Section 154 (1) of the
1999 Constitution of the Federal Republic of Nigeria (CFRN) as amended, the
appointment of heads of federal executive bodies including the Economic and Financial
Crimes Commission (EFCC) is exclusively carried out by the President of the
federation subject to confirmation by the Senate. The senatorial confirmation absolutely validates
the appointment and entitles the appointee to claim as of right all related
privileges statutorily allocated to the position. Nevertheless, confirmed or
not, the appointee as long as officially appointed by the President is legally
empowered to discharge all duties designated for the office.
Critically, the essence of
confirmation is for legal rights of the appointee, and where confirmation is
denied as in the present case, the appointee cannot validly claim the
privileges attached to the new position, instead remains with rights designated
to the position held prior to the appointment. In other words, non confirmation
by the Senate does not render official duties performed on acting-capacity illegal.
Suffice to say that a true patriot can devotedly serve his nation irrespective
of non-confirmation of appointment which only guarantees acquisitive upgrades. Incidentally,
the request of President Muhammadu Buhari for confirmation of EFCC acting-chairman,
Ibrahim Magu was turned down by the Senate on flimsy reasons, tactically on
vendetta. As widely believed, Magu is being victimized on account of his
doggedness in stepping on the ‘untouchables’ in high-places in sync with the
zero-tolerance policy on corruption of President Buhari’s government.
From the records, a high number of
‘distinguished-senators’ alongside the ‘honourables’ in the House of
Representatives have various issues bothering on allegations of corruption at
the agency, and so far, Magu has evidently showed he meant business. Apart from
the agency, some of the principal officers had from the inception of the administration
maintained roll-calls at the Code of Conduct Tribunal (CCT) at the instance of
the Code of Conduct Bureau (CCB) and Independent Corrupt Practices and other
Related Offences Commission (ICPC) over abuse of offices and other mischievous acts.
Precisely, the Senate President, Bukola Saraki alongside his deputy, Ike
Ekweremadu and two others have been docked over forgery of Senate Order Rules
and other charges. Along the line, the charges were withdrawn on the directives
of the Attorney General of the Federation (AGF) following alleged frustrations
on getting witnesses to testify as criminal prosecution demanded. Hence, a
high-wired conspiracy to kick Magu out at all cost became a last option
advantageously utilizing oversight functions.
By implication, an opportunity calls
on Magu to become a trailblazer, pacesetter, record-breaker by sacrificially
serve the nation without sundry privileges attached to the office of the Chairman
which the ill-treatment aborted. In law, it simply implies that Magu remains at
his position as EFCC deputy director which he occupied prior to his new appointment
on account of his withheld confirmation, akin to an employee whose appointment
was not confirmed by the management. If he quits public service either by
resignation or retirement under this condition, all his entitlement would be as
designated to his former position as if the new appointment never occurred. In
other words, his duties presently as the acting EFCC-helmsman would logically
be interpreted that Magu is casually standing in the gap. Objectively, Magu
should remain on duty-post if his genuine priority is to serve the nation. To
embark on political revolution requires lots of sacrifices such as the gang-up
victimization from lawmakers. Hence, this is where political-will and
patriotism come into play. As long as President Buhari considers him among his
valuable workforce, confirmation or not does not affect his official duties
heading the EFCC on acting capacity. As for his continuation, absolutely no
legal impediments can be diagnosed. Emphatically, unconfirmed appointment is not
same as termination of appointment since appointee has unfettered discretion to
remain on duty post but with no commensurate privileges.
As it stands, Magu can continue as
the acting EFCC-Chairman ad infinitum
without confirmation if he can swallow the hard pill. The Constitution never
demanded from the President any approval of the National Assembly prior to such
appointment but merely post-appointment confirmation and equally didn’t
indicate the tenure of appointees on acting capacity, hence at the discretion
of the President. So also, appointment of heads of federal executive bodies is
clearly different from ministerial appointments which require pre-clearance
from the Senate ahead of appointment. It is therefore logical to conclude that
the powers of confirmation by the senate after appointment by the President as
provided in the Constitution, objectively ought to be based on the appraisal of
the appointee strictly within the job designated to do as obtainable in employment.
To exercise the function extravagantly by refusing confirmation based on
insubstantialities and frivolities obviously amount to abuse of oversight
functions by the red chamber.
The burden now shifts to Mr.
President to unwaveringly stand by his appointment or renege on the action, and
equally the appointee, Magu to statesmanlike dedicate his duties to the nation accepting
to function on acting-capacity as boss of the anti-graft agency without
expecting corresponding entitlements due on the new position. Certainly, the
fight against corruption cannot be a smooth venture considering the caliber of
citizens involved with wherewithal and high positions occupied in the society. Interestingly,
the nation is at the winning end as the crisis could make the war against
corruption ultimately advance to a desirable dimension. Without a doubt, there’s
fire on the mountain as corruption may now be fought more uncompromisingly. The
hitherto harmonious rapport adversely affected the fight leading to shabby claims
of narrowing the war to solely recovery of stolen funds. Sadly, uncountable helpless
citizens that stole as little as goats, handsets, wrist-watches and little
money for survival are unremittingly prosecuted and jailed but those that loot
megabucks sufficient to sustain a constituency are preferentially treated.
Possibly, this time, absolute and radical anti-graft fights with real prosecutions
will be unleashed.
Umegboro is a public
affairs analyst and publisher (07057101974 sms only)
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