Before Senate and Executive Collide Again

Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN)

A recent order from the Ministry of Justice directing the presidential nominee for the post of Executive Secretary of the National Human Rights Commission, Mr. Tony Ojukwu, to resume without confirmation may yet set the Executive and the Senate on another collision course, writes Damilola Oyedele

At the beginning of the week, news broke that President Muhammadu Buhari’s nominee as head of the National Human Rights Commission (NHRC), Mr. Tony Ojukwu, had resumed without the statutory confirmation by the Senate.

According to the exclusive report by THISDAY, he had been instructed to assume office in acting capacity, by the Attorney General of the Federation, pending his confirmation, the same way the Chairman of the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu, has been in acting capacity for nearly three years without Senate confirmation.

On February 13, 2018, the Permanent Secretary in the Ministry of Justice and Solicitor General of the Federation caused a letter to be delivered to Mrs. Otti Ovravah, who was until then, the acting ES of the commission, to hand over to Ojukwu.
The letter, titled: Approval to Resume Duty as acting Executive Secretary of the NHRC’ was written by the Solicitor General of the Federation, Dayo Apata, dated February 8, 2018 with reference number SGF/PS/NHRC/180/T.
Addressed to Ovravah, it read in part: “Kindly refer to the subject matter captioned above. As you are aware in December 2017, President Buhari nominated Mr. Anthony Okechukwu Ojukwu as the substantive Executive Secretary to the commission pending confirmation by the Senate.

“While thanking you for holding forth in the commission till now, I am directed to inform you of approval to hand over the administration of the commission to the nominee of the president since he is a serving director in the commission. This is pending his confirmation by the Senate and full reconstitution of the governing council. The directive is with effect from the date of this letter.
“Please accept the assurances of the best wishes and consideration of the Attorney General of the Federation and Minister of Justice.”

A Contravention of the NHRC Rules
Prior to that, it was gathered that the Attorney General and Minister of Justice, Abubakar Malami allegedly prevented the acting ES, Ovravah from speaking on behalf of the commission at a meeting with United Nations Deputy Secretary General, Amina Mohammed, on January 11 at the ministry. Instead, he had asked Ojukwu to speak for the commission, when he was neither the acting ES nor the substantive ES.
Malami’s action contravenes Section 8 of the NHRC Act 2010, which requires the Senate to confirm Ojukwu’s appointment. “There shall be for the commission an Executive Secretary, who shall be ‘a legal practitioner with not less than 20 years post qualification experience and requisite experience in human right issues; a person of proven integrity and be the Chief Executive and Accounting Officer of the commission; appointed by the president subject to confirmation by the Senate.”
Indeed President Buhari’s letter to the Senate seeking confirmation for the nominee cited this particular provision.

The letter partly read: “In accordance with provisions of Section 8 of the National Human Rights Commission Act 2010, I have the pleasure to present Mr. Anthony Okechuwku Ojukwu for confirmation as the Executive Secretary of the National Human Rights Commission by the Senate.”

Understanding the Senate Embargo
Ojukwu, like many other nominees, is one of those whose confirmation process at the Senate has been stalled by the ongoing impasse between the Executive and the Senate, over the unresolved issue of the Acting Chairman of the EFCC, Magu.
Magu’s nomination was rejected twice by the Senate on the basis of two different reports by the Department of State Services (DSS), which indicted. Despite his rejection, Magu remained in office, a development, which has remained the source of the tension between the Senate and the Executive arm of government.
Thereafter, Vice President Yemi Osinbajo made a pronouncement at a public forum, saying the Executive did not require the confirmation of the Senate for the appointment of Chairman of the EFCC. He explained that the request should not have been transmitted in the first instance.

Osinbajo hinged his argument on the premise that the EFCC is not one of those specifically listed in Section 154 of the 1999 constitution (as amended).
Despite the position of Osinbajo, the Executive has however continued to send nominations to the Senate, for several positions not specifically listed in the constitution. The Senate on several occasions, has therefore maintained that it would not take any action on such nominees, until its power of confirmation of nominees to the boards of commissions established by enabling laws but not listed in the 1999 Constitution as amended, is clarified.
The NHRC is one of the agencies not listed in the constitution, in addition to the Central Bank, the Monetary Policy Committee, the Pension Commission, Code of Conduct Bureau, Independent Corrupt Practices Commission, National Lottery Regulatory Commission and some others.

A Judicial Intervention
But this disagreement was assumed to have been resolved when over a month ago, a Federal High Court, which sat in Abuja, the nation’s capital affirmed the powers of the senate for confirmation. Using the EFCC chair as case study, the court had ruled that the upper chamber of the National Assembly had the powers to confirm or reject Magu’s appointment.

The suit, with number FHC/ABJ/CS/59/2017, was filed by a lawyer, Oluwatosin Ojaomo, against the Senate President, Bukola Saraki; and the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN).
Thus, Justice John Tsoho of the FHC, on January 15, 2018 ruled on the issues raised by the plaintiff before striking out the suit.

Tsoho said, “The plaintiff raised two issues in the written address for determination, to wit: Whether or not the 1st defendant (Saraki) can reject a valid statutory appointment made by the President of the Federal Republic of Nigeria to the Office (of the Chairman) of the Economic and Financial Crimes Commission in accordance with the provisions of the EFCC (Establishment) Act, 2004 and whether or not the 1st defendant is bound by the provisions of the EFCC Act, 2004, with respect to the confirmation of any appointment made by the President of the Federal Republic of Nigeria to the office of the Chairman of the EFCC.

“Issue one borders on the power of the Senate in respect of statutory appointment under the EFCC Act referred to it by the President. The relevant provision relating to appointment of the Chairman of the EFCC is Section 2 (1) and (3) of the EFCC (Establishment) Act, 2004.

“Section 2 (3) provides as follows: The chairman and members of the commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to the confirmation of the Senate.

“Firstly, the use of the word ‘shall’ in legislation usually denotes mandatoriness. Therefore, while the plaintiff recognises the use of the word ‘shall’ as conferring mandatory and unqualified powers on the President to appoint the Chairman of the EFCC, sight must not be lost that the same word is used in respect of confirmation by the Senate of such appointment. Therefore interpretation of the word ‘shall’ should logically have the same effect regarding both situations.

“More importantly, the expression ‘subject to’ used in Section 2 (3) of the EFCC Act is very instructive. The expression ‘subject to’ has been interpreted to mean liable, subordinate, subservient, or inferior to; governed or affected by; provide that or provided; answerable for. It has been categorically stated that the phrase ‘subject to’ introduces a condition, a restriction, a limitation, a proviso.”

Malami’s Controversial Disposition
Past Interventions by the justice minister on some issues between the executive and the legislature had caused more friction than soothe tensions.

In March 2016, at the height of the crises between the Kogi State government and its House of Assembly, the House of Representatives, citing, Section 11(4) of the 1999 Constitution had directed the Inspector General of Police (IGP) to seal the premises of the state assembly. But Malami had written a counter letter to the IGP, instructing him to unseal the premises.

In another face-off between the Senate and Customs Boss, Col. Hameed Ali (rtd), Malami had written the Senate, asking the lawmakers to ‘stay action’ as the matter was in court. His action had offended the lawmakers who consider his actions sheer interference in their constitutional duties. He has also been fingered in the controversial reinstatement of fugitive ex-Chairman of the Pension Reforms Task Force Team, Mr. Abdulrasheed Maina.
These are just a few examples of Malami’s actions that seem to draw criticisms to the Buhari led government and have not in any way helped to improve the relationship with the Senate.

The Senate Remains Adamant
The Senate, Wednesday, cautioned the nominees not to resume without confirmation. Senator Dino Melaye (Kogi APC) raised the matter before the lawmakers, describing the action of Malami as an affront to the Senate.

“There have been rumours going round in the last two weeks that the Attorney General of the Federation has affronted and confronted the powers of the Senate of the Federal Republic of Nigeria. I was doing my private investigation on this matter and found out that it is true. My position was further reinforced by the publication of THISDAY newspaper of the 27th of February 2018,” Melaye said.

“If the Attorney General of the Federation, who is supposed to be the custodian of our laws and the chief law enforcer, will flagrantly ask an individual, who has been nominated by Mr. President, but has not been confirmed by the Senate, to go and resume and the person has since resumed and started working, then we are not practising democracy; then we have no regard for the constitution and the rule of law,” Melaye added.

Presiding, Senate President Bukola Saraki reiterated that the nominees must not resume, until they are confirmed by the Senate. “I thought this matter had been laid to rest, because we were very clear on this issue, that once nominees have not been confirmed, they cannot go ahead and resume,” he said.

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