Senate’s Withheld Confirmation And Magu’s Fate

By Carl Umegboro
PURSUANT to Section 154 (1) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) as amended, the appointment of heads of federal executive bodies 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 as long as officially appointed by the President is legally empowered to discharge all duties designated for the office. 
Critically, the essence of confirmation is for legal rights of the appointee, and where confirmation is denied as in the present case, the appointee cannot validly claim the privileges attached to the new position, instead remains with rights designated to the position held prior to the appointment. In other words, non confirmation by the Senate does not render official duties performed on acting-capacity illegal. Suffice to say that a true patriot can devotedly serve his nation irrespective of non-confirmation of appointment which only guarantees acquisitive upgrades. Incidentally, the request of President Muhammadu Buhari for confirmation of EFCC acting-chairman, Ibrahim Magu was turned down by the Senate on flimsy reasons, tactically on vendetta. As widely believed, Magu is being victimized on account of his doggedness in stepping 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 at the agency, and so far, Magu has evidently showed he meant business. Apart from the agency, some of the principal officers had from the inception of the administration maintained roll-calls at the Code of Conduct Tribunal (CCT) at the instance of the Code of Conduct Bureau (CCB) and Independent Corrupt Practices and other Related Offences Commission (ICPC) over abuse of offices and other mischievous acts. Precisely, the Senate President, Bukola Saraki alongside his deputy, Ike Ekweremadu and two others have been 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 Along the line, the charges were withdrawn on the directives of the Attorney General of the Federation (AGF) following alleged frustrations on getting witnesses to testify as criminal prosecution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 a last option advantageously utilizing oversight functions.
By implication, an opportunity calls on Magu to become a trailblazer, pacesetter, record-breaker by sacrificially serve the nation without sundry privileges attached to the office of the Chairman which the ill-treatment aborted. In law, it simply implies that Magu remains at his position as EFCC deputy director which he occupied prior to his new appointment on account of his withheld confirmation, akin to an employee whose appointment was not confirmed by the management. If he quits public service either by resignation or retirement under this condition, all his entitlement would be as designated to his former position as if the new appointment never occurred. In other words, his duties presently as the acting EFCC-helmsman would logically be interpreted that Magu is casually standing in the gap. Objectively, Magu should remain on duty-post if his genuine priority is to serve the nation. To embark on political revolution requires lots of sacrifices such as the gang-up victimization from lawmakers. Hence, this is where political-will and patriotism come into play. As long as President Buhari considers him among his valuable workforce, confirmation or not does not affect his official duties heading the EFCC on acting capacity. As for his continuation, absolutely no legal impediments can be diagnosed. Emphatically, 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 demanded from the President any approval of the National Assembly prior to such appointment but merely post-appointment confirmation and equally didn’t indicate the tenure of appointees on acting capacity, hence at the discretion of the President. So also, appointment of heads of federal executive bodies 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 strictly within the job designated to do as obtainable in employment. To exercise the function extravagantly by refusing confirmation based on insubstantialities and frivolities obviously amount to abuse of oversight functions by the red chamber.
The burden now shifts to Mr. President to unwaveringly stand by his appointment or renege on the action, and equally the appointee, Magu to statesmanlike dedicate his duties to the nation accepting to function on acting-capacity as boss of the anti-graft agency without expecting corresponding entitlements due on the new position. Certainly, the fight against corruption cannot be a smooth venture considering the caliber of citizens involved with wherewithal and high positions occupied in the society. Interestingly, the nation is at the winning end as the crisis could make the war against corruption ultimately advance to a desirable dimension. Without a doubt, there’s fire on the mountain as corruption may now be fought more uncompromisingly. The hitherto harmonious rapport adversely affected the fight leading to shabby claims of narrowing the war to solely recovery of stolen funds. Sadly, uncountable helpless citizens that stole as little as goats, handsets, wrist-watches and little money for survival are unremittingly prosecuted and jailed but those that loot megabucks sufficient to sustain a constituency are preferentially treated. Possibly, this time, absolute and radical anti-graft fights with real prosecutions will be unleashed.
Umegboro is a public affairs analyst and publisher (07057101974 sms only)

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