By Tobi Soniyi in Lagos and Phillip Ogunmade in Abuja
The presidency yesterday rationalised why the executive arm of government continues to send the names of nominees to the Senate for confirmation, adding that it believes only a judicial interpretation of Section 171 of the constitution would resolve the dispute between the executive arm and the National Assembly on whether the appointment of the Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu and other appointments could be done without the Senate’s approval.
The executive and Senate have been at loggerheads for months over the latter’s insistence that the executive must remove Magu, having been rejected twice by the upper legislative chamber during his confirmation process.
However, the executive has refused, with Acting President Yemi Osinbajo, latching onto Section 171 of the constitution, and stating that the confirmation of the Senate was not required for Magu’s appointment.
Osinbajo’s stance prompted a reaction from the Senate, which accused the presidency of double standards by sending the name of another nominee for the post of Director General of the National Lottery Commission after challenging the powers of its consideration and confirmation of nominees.
On this basis, the Senate said it would no longer consider nominees sent by the presidency except Magu ceases to act as the chairman of EFCC.
However, a legal source in the presidency said yesterday that though the executive believed that its position was the correct one, it nevertheless agreed that only the courts could finally lay the dispute to rest.
According to him, the government’s position was based on the legal advise prepared by judicial and legal experts.
He, however, did not state when the executive would seek for a judicial interpretation of the relevant section at the courts.
The presidency source, who spoke with THISDAY on the condition of anonymity, said although it was the view of the executive that certain federal appointments do not require the confirmation of the Senate, based on Section 171 of the constitution, it would nevertheless continue to send the names of some nominees to the Senate, pending the ultimate judicial interpretation of the matter.
He said: “Our position is based on the legal advise prepared by judicial and legal experts as a working document in the presidency regarding the differences in the constitutional interpretations on matters of certain federal appointments.
“In fact, the advisory unearthed a ruling of the Supreme Court on the matter where the current Chief Justice of Nigeria (CJN), before his elevation as CJN, had ruled in line with the view of the presidency on the matter.”
He said that it was not accurate to state that the executive had acted unilaterally on its interpretation of Section 171.
“This is because, even after the acting president (who spoke in support of the view of some leading lawyers), the presidency has continued to send nominations to the Senate when the president himself was around and in his absence by the acting president,” he added.
He said it was the view of the presidency that Section 171 is very clear that certain appointments do not require the consent of the Senate, but added that the “presidency is not already behaving as if its interpretation of the law has become a policy”.
Continuing the source explained: “The presidency is persuaded that its interpretation is the correct one, but we are conscious and aware of the fact that only a proper judicial ruling on the matter would make it a settled matter that sits right with the rule of law.
“That is why we have not stopped sending all manner of nominations to the Senate, most of which the Senate has actually confirmed, even well after the acting president spoke,” the source stated.
He said the conclusion of the legal advise on the matter was that only a judicial pronouncement preferably by the Supreme Court would settle the matter.
“According to that legal advise the divergent positions being held by the executive and the legislature on the subject of confirmation… is one that requires timely and ultimate resolution.
“Such resolution could only be reached through the judicial process… Such interpretation would lay to rest the lingering crises between the two arms,” he said.
The source also said that the rumblings on the confirmation of the EFCC chairman had more to do with politics than with the law.
The advise which affirms the power of the president to appoint in an acting capacity into positions such as the EFCC chairmanship, also notes that “in the recent past, the ministerial nomination of the late Prof. Abraham Babalola Borishade (Ekiti State) by President Olusegun Obasanjo was rejected repeatedly by the Senate”.
In fact, Borishade’s nomination was presented four times in 18 months before it was eventually confirmed by the Senate, the presidency source added.
The advisory continued: “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.”
Also citing a judgment delivered by Justice Walter Onnoghen before he became the CJN in the case of CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (Supra), the presidency source said this supported the executive’s position.
Justice Onnoghen in the judgment held: “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.”