Opinion
Senate’s Hammer And Magu’s Fate

Pursuant to Section 154 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, the appointment of heads of federal agencies, including the Economic and Financial Crimes Commission (EFCC) is exclusively carried out by the President of the federation, subject to confirmation by the Senate. The senatorial confirmation absolutely validates the appointment and entitles the appointee to claim as of right all related privileges statutorily allocated to the position. Nevertheless, confirmed or not, the appointee, having been officially appointed by the President, is legally empowered to discharge all duties designated for the office.
The essence of confirmation is for legal rights of the appointee, and where confirmation is denied as in the present case with the EFCC Acting chairman, Ibrahim Magu, the appointee cannot validly claim the privileges attached to his office. In other words, non confirmation by the Senate does not render official duties performed on acting capacity illegal.
Suffice it to say that a true patriot can devotedly serve his nation irrespective of non-confirmation of his appointment which only confers on him certain privileges.
Incidentally, the request of President Muhammadu Buhari for confirmation of Ibrahim Magu as the substantial Chairman of EFCC was turned down by the Senate on flimsy reasons not far from vendetta. As widely believed, Magu is being victimized on account of his doggedness and for daring to step on the ‘untouchables’ in high-places in sync with the zero-tolerance policy on corruption of President Buhari’s government.
From the records, a high number of ‘distinguished senators’ alongside the ‘honourables’ in the House of Representatives have various issues bothering on allegations of corruption with the EFCC. Meanwhile, some of the principal officers of the National Assembly had, from the inception of the administration, maintained roll-calls at the Code of Conduct Tribunal (CCT) over false declaration of assets abuse of office and other mischievous acts.
Precisely, the Senate President, Bukola Saraki alongside his deputy, Senator Ike Ekweremadu and two others were docked over forgery of Senate Order Rules and other charges. Along the line, the charges were withdrawn on the directives of the Attorney General of the Federation (AGF) following alleged frustrations on getting witnesses to testify as criminal prosecution demanded. Hence, a high-wired conspiracy to kick Magu out at all cost became the last option to have a pound of flesh.
Magu’s non confirmation simply implies that he would now have to function in his former capacity as EFCC deputy director. This was the position he was occupying prior to his new appointment. This would be akin to an employee whose appointment was not confirmed by management. If Magu quits public service either by resignation or retirement under this condition, he would only be entitled to benefits that are designated to his former position as if the new appointment never took place. In other words, his present position in acting capacity would logically be interpreted that Magu is casually standing in the gap
As far as I am concerned, Magu should remain on duty post if his genuine priority is to serve the nation. This is where political will and patriotism come into play. As long as President Buhari considers Magu among his valuable workforce, his non confirmation by the Senate does not affect his official duties as the EFCC boss on acting capacity. As for his continuation, absolutely no legal impediments can be diagnosed. Suffice it to say that unconfirmed appointment is not same as termination of appointment since appointee has unfettered discretion to remain on duty post but with no commensurate privileges.
As it stands, Magu can continue as the acting EFCC Chairman ad infinitum without confirmation if he can swallow the hard pill. The Constitution never demands from the President any approval of the National Assembly prior to such appointment (but merely post-appointment confirmation) and equally doesn’t indicate the tenure of appointees on acting capacity. Such was at the discretion of the President. So also, appointment of heads of federal agencies is clearly different from ministerial appointments which require pre-clearance from the Senate ahead of appointment.
It is, therefore, logical to conclude that the powers of confirmation by the Senate, after appointment by the President, as provided in the Constitution, objectively ought to be based on the appraisal of the appointee’s performance in his designated job. To deny an appointee confirmation based on reasons outside his performance on the job obviously amounts to abuse of oversight functions by the Red Chamber.
The burden now shifts to Mr. President to either stand by his appointment or renege on it. The onus also lies on Magu either to resign or, like a statesman, dedicate his service to the nation and accept to function on acting capacity without expecting corresponding entitlements due his office.
Certainly, the fight against corruption cannot be a smooth task considering the caliber of people involved. But I want to believe that, the nation is at the winning end against corruption, notwithstanding the desperate efforts by corruption to fight back.
Umegboro, a public affairs analyst, lives in Abuja.
Carl Umegboro
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