Magu Can Contine to Act at Pleasure of President- Justice Ojukwu
A Federal High Court in Abuja on Wednesday dismissed requests to sack Mr. Ibrahim Magu as the acting Chairman of the Economic and Financial Crimes Commission EFCC even though it faulted Magu’s unending stay in acting capacity
Justice Ijeoma Ojukwu delivered separate judgments in five separate suits instituted in 2017 seeking judicial pronouncement on Magu’s continued stay in office since 2015 without senate confirmation.
The judge declined to sack Magu as prayed for in three of the suits where the plaintiffs contended that he was not fit to continue to remain in office as EFCC chairman either in acting or substantive capacity, having been rejected by the Senate on two different occasions.
She also rejected the two other suits in which the plaintiffs contended that the Senate confirmation was not required for the President to appoint Magu as the EFCC chairman.
In her judgments in the suits seeking Magu’s removal, the judge held that a person could continue to act as the EFCC’s chairman at the pleasure of the Nigerian President because there was a lacuna in the law which failed to spell out a time limit for an acting tenure.
She held that section 2(3) of the EFCC (Establishment) Act, 2004, which provides that members and the chairman of the anti-graft agency could only be appointed by the President subject to the confirmation by the Senate, left a lacuna on how long a person could occupy the office of commission’s chairman in acting capacity.
Justice Ojukwu held that the time limit for the acting tenure, having not been provided by the EFCC Act, the court could not import it from the Civil Service Rules.
“As the law stands today, in my humble view, the period of the tenure of the acting chairman of the EFCC lies with the President of the Federal Republic of Nigeria to decide,” Justice Ojukwu held. .
She however dismissed Magu’s contention that his appointment by the President did not require Senate’s confirmation.
“Without sentiment, the acting tenure is not meant to last as long as the subtstntive office,” adding that “The acting tenure is not meant to be used to install the person in perpetuity or use that window of the lacuna to install the person in substantive capacity.”
She said in view of the provision of section 2(3) of the EFCC Act, and section 171 of the Nigerian Constitution, “it would be an aberration for this court to hold that the appointment of the EFCC chairman does need senate confirmation”.
The Judge added, “Senate confirmation is compulsorily required.
“The senate confirmation is to ensure the checks and balances needed in our democracy”.
The Judge held that section 2(3) of the EFCC (Establishment) Act, 2004, provided that a person could only be appointed by the Nigerian President as the substantive EFCC chairman subject to Senate’s confirmation, but failed to provide for time limit a person could act as the commission’s chairman.
“The lacuna in the law by the fact that there is no time limit for the acting tenure for the office of the EFCC chairman has given the President the proverbial yam and the knife to do as he pleases,” Justice Ojukwu ruled.
Justice Ojukwu however held that contrary to the argument by Magu’s lawyer, Mr. Wahab Shittu, the EFCC was not an “extra-ministerial body” like those created under section 153 of the Nigerian constitution and for which the appointment of their members and chairmen by the President does not require senate confirmation.
She held that section 171 of the Constitution was more applicable to the EFCC as it limits the power of the President to appoint the members and the chairman of the commission to Senate confirmation.
The Judge held that section 2(3) of the EFCC Act, and sections 153, 154 and 171 of the Nigerian Constitution were not in conflict, and “it would be an aberration for this court to hold that the appointment of the EFCC chairman does not require Senate confirmation”.
The plaintiffs in three of the suits had sought Magu’s removal on the grounds that the Senate had twice rejected his appointed and refused to confirm him to take up the position in a substantive capacity.
They argued that Magu, who has been acting as the EFCC chairman since 2015, having been rejected by the senate, was not fit to continue to remain in the office either in temporary or substantive capacity.
The suits were, FHC/ABJ/CS/159/2017 – Johnmary Jideobi Vs Senate and three others; FHC/ABJ/CS/469/2017 – Chijioke Kanu Vs Minister of Justice and two others; and FHC/ABJ/502/2017 – Wale Balogun Vs President of Federal Republic of Nigeria and four others.
The other two suits are FHC/ABJ/CS/138/207 – Jibrin Okutepa (SAN) Vs President of the Federal Republic of Nigeria and four others; and FHC/ABJ/CS/227/2017 – Ahmed Yusuf and another Vs Ibrahim Magu and five others.