Executive, NASS showdown imminent: Senate dares Osinbajo over Magu

Senate suspends further confirmation of nominees
Says Acting President must obey resolutions or risk impeachment
Reps summons Fashola
FG may move against errant lawmakers
Its impeachable offence to retain Magu as resolutions must be obeyed -Ozekhome
No, Senate’s resolution mere advisory, as Senate can’t dictate to President on who to appoint – Falana

The stand-off between the executive and the legislature took a frightening dimension on Tuesday as the Senate subtly dangled an impeachment threat against Acting President Yemi Osinbajo over what it called non-implementation of Senate’s resolutions on rejected nominees forwarded to it by the Presidency.

The Senate, which resumed from a two-week recess, claimed that it would take appropriate action against Osinbajo in the event of his continued disregard for decisions by the Senate in line with the 1999 Constitution (as amended).

The Senate was apparently referring to the refusal of the federal government to remove the Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Mr Ibrahim Magu. The Senate had twice rejected the nomination of Magu on the grounds of what it termed adverse security reports from the DSS.

But the Senate has resolved to suspend consideration of all nominees from the executive arm as part of plan to enforce compliance on its earlier resolutions.

The Senate’s action was sequel to a Point of Order raised by Senator Ahmed Sani Yerima (APC, Zamfara West), over a statement by Osinbajo.

The acting president had argued that President Muhammadu Buhari did not need Senate’s confirmation over Magu as Buhari is empowered by Section 171 of the constitution to make such an appointment without recourse to the Senate.

But Yerima had expressed dismay that Osinbajo could send the name of another nominee, Mr. Lanre Gbajabiamila, for confirmation as the Director General of the Nigerian Lottery Commission, after he had earlier concluded that the Senate had no power to confirm nominees.

The Senate President, Dr. Bukola Saraki, while rounding up debate on the motion by the Senator from Zamfara, said, “This is an issue that we have to once and for all address, we cannot pass laws and see that the laws are not being obeyed.”

Hinting of possible sanction in form of impeachment against Osinbajo, Saraki said, “This resolution must be obeyed by the Acting President otherwise we will take appropriate actions and resolutions.

“It is very clear these resolutions as passed must be acted upon by the Acting President, and ensure that we continue to respect our democracy, our laws and constitution.

“It is not for us to choose which laws we obey and which laws we don’t obey. That is not the way any civilized, modern society works. And we hope that the Acting President will take appropriate action in line with these resolutions.”

Senator George Thomson Sekibo (PDP Rivers) later took the floor to condemn the executive arm over its continued refusal to comply with the resolutions of the Senate.

He said the development was a clear attempt by the Presidency to usurp the powers and roles of the apex legislative body.

Sekibo, whose election has been nullified by the Election Petitions Tribunal said: “What is happening shows to Nigerians that they (executive) are either trying to control the National Assembly or trying to take our responsibilities.

“If the Acting President says we do not have power to return any nomination, I wonder if he is in touch with the EFCC Act. The EFCC Act states that the President shall nominate and Senate will confirm. If you reject one law, you will reject the constitution.”

Another lawmaker, Senator Isah Hamman Misau (APC, Bauchi), accused the Acting President of being hypocritical on the issue, contending that his action amounted to playing double standards.

He said, “I think this nomination as double standards or hypocrisy. If we cannot stand and face these challenges against this institution, soon they will tell us that we cannot come to the National Assembly.

“There are a lot of ministers who have high level corruption allegations against them, but they have never been harassed, instead, these same ministers go about castigating the National Assembly.”

He further advised that, “If the Executive is not ready for this democracy, they should tell us and propose another system of government.”

In his remarks, Senator Dino Melaye (APC Kogi West), said “It is time for the Senate to tell the Executive Arm of government that they must stop approbating and reprobating. This republic that our fathers fought for should not be allowed to be completely destroyed. Not in our time, God forbid.

The embattled senator, whose recall process by INEC has begun, said, “Magu came for a job interview and failed and he was rejected. As we speak, Magu is still parading himself as the chairman of EFCC. The same executive now writes a letter that we should confirm someone who went to resume office without confirmation and he was chased out of office. Now that name has been brought before us.

“The integrity of the Senate is as stake. This Senate cannot be disregarded and insulted; our authority to confirm cannot be eroded.

“I am moving a motion that it becomes abominable to read any other confirmation report in this chamber until they act on our position.

“Those who have failed should go back, Magu is not the last Nigerian Angel. He can serve this country in another capacity.”

The Senate therefore called on Osinbajo to withdraw the statement credited to him that the Senate does not have power to confirm certain appointees of the president.

Both the Senate and the executive arm have of late been at each other’s throats lately over issues generating from the 2017 Budget which the Acting President had signed into law.

Osinbajo, after signing the Budget, said lawmakers had no constitutional power to introduce new projects into the Budget, just as he faulted some of the projects which the lawmakers inserted into the 2017 budget.

Both the Senate and the House of Representatives had argued trenchantly that real power of appropriation lies with the National Assembly as recognized by the Nigerian law.

The frosty relationship took another dimension when the Minister of Power, Works and Housing, Mr. Babatunde Fashola (SAN), said that the National Assembly cut some of the major projects in the 2017 budget affecting his Ministry.

In a related development the House of Representatives on Tuesday resolved to probe the Minister of Works, Power and Housing, Babatunde Fashola and has summoned him to appear before an ad hoc committee over allegations credited to him that the National Assembly inserted projects in the 2017 budget.

The House resolution to probe and invite the minister was sequel to the unanimous adoption of a motion under matter of privilege moved by Rep. Sadiq Ibrahim (Adamawa/APC).

Relying on Order 6, Rule 1 and 4 of the House Standing Order, Rep. Ibrahim said that Fashola’s claims accusing National Assembly members of budget insertion breached the privileges of lawmakers.

Daily Times recalls that Fashola’s allegation had caused ripples and generated controversy after the Minister accused legislators of altering the allocations for critical projects under his ministry in the 2017 budget.

Fashola had alleged that the budgetary insertion by the National Assembly was made in favour of scores of boreholes and primary health care centres as against the core mandate of the ministry.

While condemning Fashiola’s assertion that the National Assembly allegedly inserted the projects in the ministry’s budget different from proposals submitted by the executive, Rep. Ibrahim said that the minister’s comments were capable of inciting Nigerians against National Assembly members.

“By this singular act, the minister has breached the privilege of the House.

“Freedom of speech is a constitutional right and everybody has a right to enjoy it. However, Fashola has spoken on an issue agreed upon between the executive and the legislature and which had been laid to rest.

“Fashola abandoned the official channel of communication to the National Assembly and decided to go to the media to make his assertions.

“The budget is an Act of law and the Minister is making a pronouncement on an Act clearly signed into law by the Acting President.

“There is need for Fashola to appear before an ad hoc committee to be set up by this House to give answers to his comments.

“It is an attack on all of us and capable of causing friction between the executive and the legislative arm of government,’’ the lawmaker added.

Contributing to the motion, Rep. Kingsley Chinda (Rivers/PDP) said that though the image of the House was at stake.

He stated that “I will appeal to the House to hold its gunpowder since the matter is investigative in nature.

“It is right to invite Fashola to come and throw more light not only to this House but to Nigerians on the veracity of his claims,’’ Chinda said.

Also speaking, the Chief Whip of the House, Rep. Alhassan Ado-Doguwa (Kano/APC) said that Fashiola’s assertion was capable of truncating the essence of democracy in the country.

According to Ado-Doguwa, “each component of the three arms of government has specific functions to perform and we must defend our mandate.

“Not only that the minister’s action breached our privileges individually and collectively as an institution, it has also undermined a budget worked upon by the National Assembly and assented to by the Acting President,’’ Ado-Doguwa said.

The Speaker of the House, Mr. Yakubu Dogara referred the motion to a 14-man ad hoc committee to be chaired by Rep. Aliyu Madaki (Kano\APC).

But lawyers have expressed divergent views on the matter. While Chief Mike Ozekhome (SAN) argued that it is an impeachable offence to keep Magu despite his rejection, Falana argued that resolution is a mere advice, saying that the Senate cannot dictate to President on who to appoint.

Ozekhome said, “It is an impeachable offence for the Acting President to continue to retain Magu in office as Acting Chairman, as it amounts to “gross misconduct” as defined by section 143 of the 1999 Constitution.

“This is because a deliberate breach of the constitution, or violation of extant laws, is an impeachable offence. The provisions of section 2(3) of the EFCC (Establishment) Act, 2004,are all too very clear and straightforward to admit of any ambiguity.

“They simply provide that the President shall appoint the EFCC chairman SUBJECT to confirmation by the Senate. This simply means the EFCC chairman cannot act in office without approval by the Senate.

“It becomes patently illegal and unconstitutional for Magu to continue to be brazenly retained in office, inspite of the hallowed doctrine of separation of powers and of checks and balances provided for in sections 4,5,6 of the 1999 Constitution and as ably espoused by Baron Dr Montesqueu in 1748.Resolutions of the Senate, and indeed the NASS,are weighty and have the force of law under sections 4,88 and 89 of the 1999.

What the executive is simply saying is “to hell with the Senate; you don’t matter or count for anything.” That is intolerable. A rejection of any presidential appointment by Senate is final and puts an end to the tenure or aspiration of such an appointee. There ceases to be any acting capacity.

“That has been the custom, convention and provision of Article 2 section 2 of the USA Constitution, since 1789 when the first presidential refusal occurred. Our presidential Constitution and presidentialism are modelled after the US’s experience. Have you ever heard of “Acting Minister” or “Acting Ambassador” when Senate rejects nominees to those positions ? Let us for God’s sake get things right.

But Falana has disagreed with his learned colleague, saying that the executive is not bound by the resolutions of the Senate as they are mere advisory in nature.

He said, “The retention of Magu is not an impeachable offence because he is still functioning as the acting chairman of the EFCC. He is an appointee of the President and the power of the President to appoint is clear and unambiguous in section 171 (1) of the 1999 Constitution (as amended).

“The senators know that they cannot dictate to the President on whom to appoint. That is his prerogative of power and they cannot take it over from him under any guide.

“If the mistake of sending the name of the EFCC chairman to the Senate has been happening in the past, nothing stop the present administration from correcting this development.

“In any case, the present senators will never confirm Magu as quite a number of them are under investigation. You will recall that some of them are being prosecuted by Magu. And you want them to confirm Magu? They will not confirm him for obvious reasons.

“It is even ridiculous that some senators can be flexing muscle when they know that Magu, until his name was sent to the Senate, is the acting chairman of the commission. And when you refused to confirm his nomination, the man still continue to function as the acting chairman.

“He is at the helm of affairs of the agency at the pleasure of the President who has implicit confidence in his integrity. He is the nominee of President Buhari and they know that he is doing his best. It is a matter of personal interest as national interest.”

But another senior advocate, Mr. Femi Falana said, “The Senate had adopted a similar resolution before but abandoned it when it discovered that it would not work. Our distinguished senators ought to be advised that we are operating a presidential system of government and parliamentary resolutions cannot compel the President to remove any appointee.

“With respect, since the Acting President has said that the decision of the presidency on Magu’s appointment is anchored on section 171 of the Constitution, the Senate should approach the Supreme Court for legal guidance if it convinced that section 2 of the EFCC Act is higher than the Constitution in the hierarchy of the superiority of our laws”.

In the same vein, another senior advocate, Afolabi Olatunde is seeking for cooperation between executive and the legislature.

He said, “We are supposed to have the spirit of cooperation in whatever we are doing and we must have checks and balances in democracy that is why there is concept of synergy.

“Now, the Senate is the representative of the people. So, by and large if the Senate has passed a resolution in any given matter other than the situation in which the law has given Senate the responsibility to make confirmation of the actions of the executive, any other resolution can only be advisory, it cannot be binding.”