President Muhammadu Buhari has opted to seek legal opinions in deciding what to make of Mr. Ibrahim Magu, following the latest refusal of the Senate to confirm him as substantive chairman of the Economic and Financial Crimes Commission (EFCC).
The legal consultations will form an integral part of the planned peace talks between government’s mediation team headed by Vice President Yemi Osinbajo and National Assembly leaders.
The Federal Executive Council constituted the team recently to interface with the NASS leadership with a view to resolving the differences between the two arms.
The Nation gathered yesterday that the Osinbajo-led team was yet to contact the National Assembly leaders.
Authoritative sources said yesterday that Buhari had called for advice on the import of Section 171 of 1999 Constitution which is the bone of contention on the fate of Magu.
The Section says: (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 rest 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.
(3) An appointment to the office of the Head of Civil Service of the Federation shall not be made except from among the Permanent Secretaries or equivalent rank in the Civil Service of the Federation or of a State.
(4) An appointment to the office of Ambassador, High Commissioner, or other Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate.
(5) In exercising his powers of appointment under this section, the President shall have regard to the federal character of Nigeria and the need to promote national unity.
(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;
“Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the President ceases to hold office.”
Section 11 of the Interpretation Act says: (1) “Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes-
(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) power to remove or suspend him;
(c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint,-
(i) to reappoint or reinstate him,
(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
(2) ” A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.”
Prof. Itse Sagay’s Presidential Advisory Committee Against Corruption (PACAC) believes that by virtue of Section 171, Magu can continue to act as Acting EFCC chairman.
The Department of State Security Service, some government officials and the Senate think otherwise.
The Senate on Wednesday stopped the consideration of the 27 Resident Electoral Commissioners who were nominated by Buhari to protest Buhari’s refusal to sack Magu after it rejected him for a second time.
A top level source said although the President has stuck with Magu for now, those opposed to the EFCC acting chairman are drawing attention to Section 11 of the Interpretation Act in the constitution.
The source said: “The President is being painstaking in taking a decision on Magu.
“He has sought legal advice on the contentious Section 171 of the 1999 Constitution and Section 11 of the Interpretation Act.
“The legal advice might either strengthen his position on Magu or determine what action to take. It will also assist him to engage the National Assembly leadership on Magu’s fate.
“Buhari is aware of argument for and against the retention of Magu but he does not go by the spur of the moment because of posterity. He is aware of Magu’s impeccable contributions to anti-graft war. And on a personal note, he is with Magu.
“He runs a peculiar presidency based on adherence to the rule of law and not Executive fiat as the case was in the past.”
Another source said: “the President’s ultimate decision on Magu will have to take cognizance of the EFCC Establishment (2004) Act and the rejection of the officer by the Senate for the second time.
“Apart from the law, some government officials prefer a political solution to the controversy on Magu. We are hopeful that Osinbajo’s mediation team will be able to resolve this issue amicably.
“There is a dilemma before the President. He favours Magu for the job and he does not pretend about it. But he has to manage the anger of the Senate too.
“The battle over Magu is now in the realm of legal technicality, especially his continued stay in office in Acting capacity. This is why the President needs sound legal advice, not jaundiced type.”
The questions to be resolved are:
* Can the President re-nominate Magu for the third time?
* What becomes of Magu’s status in the light of his rejection for the EFCC job for the second time by the Senate?
* Should Magu remain in office in Acting capacity as EFCC chairman until Buhari takes a decision or as long as it takes Buhari to decide his fate?
*If Buhari does not re-nominate Magu for a third time, can he remain in Acting EFCC chairman till the end of Buhari’s tenure in 2019 in the light of the provision of Section 171 of the 1999 Constitution?
A principal officer in the National Assembly said: “We are awaiting communication from the Vice President before we constitute our team which will meet with the mediation committee from the Executive.
“Certainly, we are bound to disagree on issues in line with the principle of separation of powers but we are also expected to reach consensus for the betterment of the society at large.
“We have issues with the interpretation if Section 171 of the 1999 Constitution.”
Shortly after Magu’s last rejection, the Executive Secretary of PACAC, Prof. Bolaji Owasanoye, had told our correspondent that Magu can continue to serve in acting capacity.
He said: “We believe that there is nothing inhibiting him from being in office as the Acting EFCC chairman. We are of the opinion that he should remain in office.
“If you look at Section 171 of the 1999 Constitution, the President is empowered to retain him as long as he wants in acting capacity. As long as the President remains in office, Magu can continue to act as EFCC chairman.”
Responding to a question, Owasanoye added: “If there is something new, we would have modified our position but the Senate acted on old report without considering the President’s points in the re-nomination letter.”