Why Court uphold Magu as acting EFCC chairman

.Says EFCC not an extra – ministerial department

.’Senate has powers to confirm president’s nomination’

The Federal High Court in Abuja, on Wednesday, declined to declare the continued stay of Mr. Ibrahim Magu as the Acting Chairman of the Economic and Financial Crimes Commission (EFCC) as illegal and unconstitutional despite his non confirmation by the Senate.

The Court said, however, that it was a mandatory requirement of the law that President Muhammadu Buhari’s nomination of Magu as substantive head of the anti-graft agency must be subject to confirmation and validation by the Senate.

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Justice Ijeoma Ojukwu stated this in five judgments on the suits challenging the non-confirmation of Ibrahim Magu as the substantive Chairman of the Economic and Financial Crimes Commission (EFCC).

In 2017 some litigants mainly human rights activists and lawyers including Mr. Jideobi Johnmary, Ahmed Tijani and Wale Balogun brought separate suits urging the court to hold that Magu was not a fit and proper person to head the agency since he was twice rejected by the Senate based on an adverse security report from the Department of State Service, DSS.

Two other lawyers – Chijioke Kanu and Mr. Jubril Okutekpa (SAN) who were in support of Magu filed separate suits and argued that transmission of Magu’s nomination to the Senate for screening was in breach of section 171 of the Constitution, insisting that EFCC is an extra-ministerial department of the federal government

Delivering the judgment, Justice Ojukwu held that it was mandatory for the Senate to either confirm or reject President Buhari’s nomination.

She held that EFCC is not an extra-Ministerial department of the Federal Government and as such, the law provided that anyone nominated as its Chairman by the President must pass through necessary “checks and balances” by the Senate.

According to the court, whereas section 171 of the 1999 Constitution, as amended, granted the President powers to appoint heads of extra-Ministerial departments at his pleasure, section 2(3) of the EFCC Act,  2004, made it compulsory that any nomination to EFCC Chairmanship position must be screened by the Senate to satisfy the interest of the public.

“Public interest is very paramount in the appointment of any person to head to the EFCC”, Justice Ojukwu held,  noting that there was a lacuna in the law since section 2(3) of the EFCC Act did not put a limitation to President Buhari’s powers to retain Magu in acting capacity.

“The lacuna has given the President the proverbial knife and the yam to do as he pleases”, Justice Ojukwu noted, saying there was need for a renewed consciousness that laws must be implemented in accordance with public interest and not exploited to install Magu in substantive capacity,” the court stated.

The five separate suits bordered on the legality or otherwise of Magu’s continued stay in office as Acting Chairman of the EFCC, despite twice rejection of his nomination by the Senate under the 8thNational Assembly.

Those against Magu separately urged the court to among other things, declare that by combined provisions of section 2(3) of the EFCC Act, 2004 and section 11 of the Interpretation Act, Magu could not continue to parade or hold out himself as Acting Chairman of the EFCC, his nomination having been twice rejected by the Senate.

Besides, they sought for an order to restrain President Buhari from re-nominating him, as well as an order stopping Senate from accepting or acting on such re-nomination when made.

They argued that the moment his nomination was rejected for the second time by the Senate, he could no longer be re-appointed in any capacity at the agency.

One of the plaintiffs, Tijani, told the court that the Senate had on the day it expressly rejected Magu’s nomination for the second time, relied on a security report by the DSS that he “failed integrity test and will be a liability to the anti-corruption fight”.

The second plaintiff, Johnmary, argued that the period the constitution allowed Magu to stay in office in Acting capacity had elapsed, noting that he was appointed since 2015 and acted for almost a year before his name was transmitted to the Senate for confirmation.

Meanwhile, the preliminary objections to  challenge the locus standi of the plaintiffs to file the actions which were filed by  both Magu and the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, the defendants in all the suits were dismissed as lacking in merit.

Justice Ojukwu held that the fact that over 13 different suits were lodged before the court over the EFCC chairmanship position was enough pointer to the fact that the issue was of great public importance.

The court, aside declaring that the plaintiffs had the requisite locus standi to file the actions, held that argument by the defendants that EFCC enjoys similar status as an extra-Ministerial department of Federal Government under section 171 of the Constitution, was short-circuited.

“There is no question regarding the mandatory provision of the statute that the President needs to obtain confirmation of the Senate before appointment of the 1st defendant can be validated”, the court held.

It said there was no conflict between section 2(3) of the EFCC Act, section 171 of the Constitution and section 3(6) of the ICPC Act.

According to the court, while EFCC and ICPC Chairmen have established tenures of 4 years and could be re-appointed, persons appointed under section 171 of the Constitution are appointed at the pleasure of the President and could be fired at will without the intervention of the Senate.

Consequently, she dismissed all the suits on the premise that nothing in the law circumscribed President Buhari’s powers to retain Magu in office, or provide a timeframe within which he could serve as acting Chairman of the EFCC.