17 July 2017

Nigeria: Magu - Presidency Takes Case to Supreme Court

The Presidency has reiterated its stance that certain federal appointments should not require Senate's confirmation.

It said the refusal by the Senate to confirm the appointment of the acting chairman of the Economic and Financial Crimes Commission, Ibrahim Magu, had more to do with politics than with the law.

This is the position of a legal advisory prepared by judicial and legal experts as a working document in the Presidency on the differences in the constitutional interpretations on matters of certain federal appointments

The Senate had on July 4 passed a resolution suspending all issues relating to the confirmation of nominees and urged Acting President Yemi Osinbajo to respect the constitution and laws as they relate to nominees' confirmation.

But the presidency's legal advisory, concluded that a judicial pronouncement, "preferably by the Supreme Court, is what will settle the matter."

A government source noted last night that though it was the view of the Presidency that certain federal appointments should not require the confirmation of the Senate based on Section 171 of the Constitution, the present administration had continued to send such appointments to the Senate pending the ultimate judicial interpretation of the matter.

According to the source, "The advisory which affirms the powers of the President to appoint in acting capacity into positions such as the EFCC chairmanship, also notes that in the recent past, the ministerial nomination of Late Prof. Abraham Babalola Borishade (Ekiti State) by President Olusegun Obasanjo was rejected repeatedly by the Senate. In fact, it would be recalled that this particular nomination was presented four times in 18 months before it was eventually confirmed by the Senate."

The source, who sought anonymity, said the advisory unearthed a ruling of the Supreme Court on the matter where the current Chief Justice of the Federation, before his elevation as CJN had ruled in line with the view of the presidency on the matter.

He said it was inaccurate to say the federal government or the presidency had started to act unilaterally on its own interpretation of Section 171.

He quoted the advisory thus: "This position is because of the long established and entrenched principle of law that any legislation that is inconsistent with the provision of the Constitution is null and void and of no effect whatsoever to the extent of such inconsistency."

It cited the Supreme Court cases of Dr. Olubukola Abubakar Saraki v. Federal Republic of Nigeria (2016) LPELR-40013 (SC) and Chief Isaac Egbuchu V. Continental Merchant Bank Plc & ORS (2016) LPELR-40053 (SC).

"In the case CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (Supra), Walter Samuel Nkanu Onnoghen, who today is the Chief Justice of the Federation, held, at page 19, paragraph C that -

"The time honoured principle of law is that wherever and whenever the Constitution speaks any provision of an Act/Statute, on the same subject matter, must remain silent."

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