Nigerians are watching the battle between the Legislature and the Executive over the appointment and confirmation of Ibrahim Magu as EFCC Chairman. Many people are asking the wrong questions and are, therefore, getting the wrong answers. The question is not whether the EFCC Act is inferior to the Constitution. Further, Section 171 of the Constitution is irrelevant here.
Now, let us look at the law. The commencement point will be the Nigeria’s 1999 Constitution which is our grundnorm. Section 1(1) of the Constitution provides that the Constitution is supreme and binding on all authorities and persons in Nigeria. Section 1(3) further reiterates that any law that is inconsistent with the Constitution is void.
Part II of the Constitution provides for the powers of the Federal Republic of Nigeria which are the legislative, the executive and the judicial powers in sections 4, 5 and 6.
Section 4 vests legislative powers in the National Assembly to make laws for the peace, order and good government of the federation. In making these laws, it has exclusive jurisdiction if the matter is within the Exclusive legislative list (listed in the first schedule) and shares this power with states houses of Assembly where the matter is within the Concurrent legislative list (listed in the second schedule). It is worthy of note that the power to amend the ‘almighty’ Constitution, also rests on the National Assembly, though the process must be approved by two-third of all the state houses of assembly. (Underlining mine for emphasis)
Section 5 vests executive powers in the president. This power may be exercised by him directly or by his vice or any of his ministers in line with the Constitution or any law made by the National Assembly. These executive powers extend to the execution and maintenance of the Constitution and all laws made by the National Assembly where it has powers to do so. (underlinings mine for emphasis)
Section 6 vests judicial powers in the courts.
The above is the Constitutional backing for the principle of separation of powers practised in our democratic system. This ensures checks and balances within the three arms of government.
The EFCC is not one of the Federal Executive bodies specifically mentioned and created in Sections 153-169 (listed in third schedule) which appointment and removal is provided for in Section 171 of the Constitution. It is worthy of note that these bodies are not exhaustive, giving room for creation of others as the need arises. Of course, the newly created ones will be in accordance with the establishing Act.
EFCC came into being, pursuant to an Act of National Assembly in line with Section 4 of the Constitution. This amended Act of 2004 established the Commission. Section 1(1) of the Act provides that EFCC shall be constituted and function in accordance with the Act. Section 2 lists members of the Commission. Section 2(2) provides that only the chairman and secretary are in full time position. Section 2(3) provides that chairman and members are to be appointed by the President subject to Senate’s confirmation. Section 3(1) provides that the chairman and members shall hold office for four years, may be reappointed for another four years and no more. The position of ‘acting chairman’ is unknown to the EFCC Act.
Seeing that Section 5 of the Constitution mandates the executive (president) to execute and maintain the Constitution and all laws made by the National Assembly which it has powers to make, EFCC Act is one of the laws which the National Assembly has powers to make, therefore, the president is bound to implement the EFCC Act.
Recently, the EFCC was applauded for initiating process of freezing accounts in line with the provisions of the Act. The executive cannot accept the provisions of the Act as it relates to functions of EFCC, members of the commission, appointment of other members, offences, the court with jurisdiction to try offences therein, as provided by the act and then refuse to abide by the provision on appointment of the chairman. The executive cannot cherry-pick a law.
The Executive refusing to abide by Section 2(3) of EFCC Act is questioning the legitimacy of NASS to enact EFCC Act which is an indirect way of questioning Section 4 of the Constitution for giving the National Assembly the power it has. This is tantamount to refusing the Constitution, thus violating Section 1 of the Constitution which maintains that Constitution is the grundnorm.
The Executive has not said that the EFCC Act concerns matters which are not within the Exclusive legislative list and Concurrent list, in other words, that enacting EFCC Act is beyond the powers of the National Assembly. It is worthy of note that the executive cannot even say that as it is only the Court that can interpret laws. So if this is what the executive has in mind, it must urgently approach the court.
Let me state here categorically, in my considered view, that the National Assembly has powers to legislate on matters contained in the EFCC Act. My authority is contained in Items 67 and 68 of the Exclusive Legislative list which provide -‘Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution’ and ‘Any matter incidental or supplementary to any matter mentioned elsewhere in this list’. The matters under the EFCC Act are matters incidental to items: 1 (Accounts of the Government of the Federation, and of offices, courts, and authorities thereof, including audit of those accounts). 3 (Aviation, including airports, safety of aircraft and carriage of passengers and goods by air). 6 (Banks, banking, bills of exchange and promissory notes). 7 (Borrowing of moneys within or outside Nigeria for the purposes of the Federation or of any State). 15 (Currency, coinage and legal tender) 30 (Immigration into and emigration from Nigeria) 32. (Incorporation, regulation and winding up of bodies corporate, other than co-operative societies, local government councils and bodies corporate established directly by any Law enacted by a House of Assembly of a State) and 45 (Police and other government security services established by law).
From the foregoing, it is clear that the National Assembly has powers to reject the appointment of Magu by the Executive. Whoever the executive appoints as EFCC chairman must be confirmed by the National Assembly. The position of acting chairman of EFCC is unknown to the enabling Act. It follows that what the executive is doing is beyond its constitutional powers and negates the principle of separation of powers. The executive is through this executive excesses trying to usurp the Constitutional powers of the National Assembly thereby attempting to rewrite the Constitution. The consequence of this action is that Section 143 of the Constitution makes it an impeachable act by providing in (11) that “gross misconduct” means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.I urge the executive to jettison this obvious military mentality and act in accordance with the constitution.
Okeke is a Lagos-based legal practitioner.
The opinions expressed in this article are solely those of the author.