Magu and the Court Judgment by Carl Umegboro, LL.B (Hons)

THE recent judgment of the Federal High Court in Abuja by His Lordship, Justice J.T. Tsoho over confirmation of appointment of the chairman of the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu by the Senate doesn’t affect the position of ‘acting chairman’. Unfortunately, the senate amplified the obiter dictum (statement by the way) in the judgment, ignoring the most important part which was dismissal of the suit over locus standi, thus, of no effect.
In addition, there was no declaratory order by the court to remove the acting chairman from office.

Without a doubt, the Senate has unfettered powers as adumbrated by the court to confirm or reject President’s nominee from becoming a substantive chairman of the commission which gives statutory benefits. However, the senate cannot dictate to the President who to appoint on acting capacity, and clearly, the duration for acting position is not specified. By implication, the acting-chairman of the commission can remain in the position as long as the President desires.

Generally, two persons decide the fate on mere ‘acting’ position; the President and the appointee. The business of the senate begins and ends with the confirmation or rejection of substantive position. As Magu is rejected for confirmation as substantive head, it implies President Muhammadu Buhari would come up with a new nominee ‘as soon as possible’. As long as the appointee is not bothered about the confirmation which offers statutory securities and benefits, no harm is done.

Incidentally, the senate relied on a report of the State Security Service (SSS) to refuse confirmation but forgot that pursuant to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, Ibrahim Magu is still presumed not guilty. Funnily enough, a good number of the senators and members of the House of Representatives have been, at one time or the other indicted through similar reports but on account of the presumption of innocence in the constitution, they contested election and were sworn in. The simple direction of the obiter dictum is that the senate confirms appointment for a substantive chairman. As for acting capacity, no confirmation is required but exclusively sole discretion of the President.