Renewed Senate/Presidency Face Off

From all indications this country is headed for another round of nasty confrontation between the Executive arm of the Federal Government and the National Assembly, specifically the Senate. On Tuesday last week, senators reopened the fight by saying they will no longer act on any nomination for confirmation from the Presidency until, in effect, Acting President Yemi Osinbajo removes Acting Chairman of the Economic and Financial Crimes Commission [EFCC] Ibrahim Magu whose nomination was twice rejected by Senate. The senators threatened unspecified dire consequences if their demands are not obeyed; many newspapers went to town saying Senate threatened to impeach the Acting President. 

What triggered the row was a letter from Osinbajo seeking confirmation of Mr. Lanre Gbajabiamila as Director General of the National Lottery Regulatory Commission. As soon as Senate President Bukola Saraki read Osinbajo’s letter, Senator Ahmed Sani, Yariman Bakura [APC, Zamfara West] moved a point of order, saying Senate should first discuss a remark by Osinbajo in April that presidential appointees do not need Senate confirmation. Many senators took turns lambasting Osinbajo for making that remark and they also lambasted the Presidency for what they said is its disregarding Senate resolutions. The main issue is the charge that Magu is still acting EFCC chairman despite Senate refusing to confirm him on two occasions.

At the end of the angry debate, senators adopted some resolutions which were read by Senator Dino Melaye and summarised by Saraki. They said since Osinbajo said Senate did not have to confirm presidential appointees, they would not entertain his nominations again until the matter is clarified. Indeed, Osinbajo said in April that Magu did not have to be confirmed by Senate going by Section 7[1] of the Constitution but Deputy Senate President Ike Ekweremadu said the section pertains to the president’s personal staff, not Magu for whom the EFCC Act specifically required Senate confirmation. The battle lines were further cemented last week when Governor Nasiru el-Rufa’i said Osinbajo told him that Magu will remain in office for as long as the Buhari regime is in office, while Senate spokesman Sabi Abdullahi said the next day that Senate stood its ground on the demand for Magu’s removal.

Many lawyers have been expressing their opinions in the past six months as to the legal propriety or otherwise of Magu continuing as Acting EFCC Chairman despite his rejection by Senate. As we see it, the summary of the matter is this. Magu is extremely popular with APC supporters who see him as the main battering ram in the Buhari Administration’s most popular program, which is fighting corruption. Buhari will lose face badly among his supporters if he caves in and replaces Magu. That said, we do not support the notion that there are no other worthy Nigerians who can carry out the same duties.

As for the law, the EFCC Act clearly requires Senate confirmation for its chairman. This provision has the force of law unless it is quashed by a competent court of law. The constitution created many offices and made some, such as ministers and ambassadors, subject to Senate confirmation while it made others, such as special advisers, permanent secretaries and military service chiefs not subject to Senate confirmation. The National Assembly follows the same template in creating agencies and offices. While some appointments are subject to confirmation, others are not. Where there is doubt, the best thing to do is to seek judicial interpretation. The Presidency, the Senate or Magu are the persons and agencies with the locus standi to go to court and seek interpretation on this matter. Popular though Magu is, the Presidency must not trample on the law in this matter. Most Nigerians suspect that senators refused to confirm Magu because he has stepped on their toes. Even that is no reason to trample on the law. Voters should instead wait and punish the senators at the polls in 2019 or, if they can, recall them before that date.

Yet another problem is that the Presidency itself is divided on this matter. While Osinbajo was arguing informally that Magu did not need Senate confirmation, both Buhari and himself have been sending the names of appointees to Senate for confirmation including ministers, career and non career ambassadors and heads of various agencies, including PenCom and Lottery Commission. In fact, a major blow was dealt to the Presidency’s case when Attorney General and Minister of Justice Abubakar Malami, SAN reportedly disagreed with the Acting President that Magu did not need Senate confirmation. Malami said the Federal Executive Council never discussed the matter. Of course FEC is only an advisory body to the president, and Malami later said he was misquoted. But the damage had been done.

The Presidency hinted last week that President Buhari is likely to carry out a cabinet reshuffle as soon as he returns to the country. That will be difficult to do if Senate refuses to confirm any new ministerial nominees. It is therefore important to end this face off as soon as possible. The first clear path is for one of the concerned parties to go to court. The second, quicker path is to seek a political settlement. We recall that President Buhari set up a committee in March to seek a truce between the two arms of government. It is headed by Osinbajo with ministers who were former senators as members. Since then Nigerians have not heard anything from that initiative. Let us remind both Presidency and National Assembly that Nigerians have too many problems of a much more serious nature to stomach another showdown between the two that will further cripple the pace of government. They should urgently seek judicial and political solutions to their disagreements.