As Executive, Legislature Travel a Familiar Road…

A fresh standoff may be in the offing between the Senate and the Presidency over the powers of confirmation of executive nominees.  Damilola Oyedele writes

If there were any signs of detente between the Executive and the Senate, which more often than not had been at loggerheads, such signs may have disappeared by the latest position of the Senate. Last Tuesday, at resumption from its midterm recess, the lawmakers declared without mincing words that they would no longer consider any request from the executive seeking confirmation of nominees, until there are clarifications on the powers of confirmation conferred on the upper legislative chamber, by the 1999 Constitution, as amended.

The day had started like most days since the inauguration of the eighth assembly with the lawmakers in a closed-door session. The reason behind the closed door session was soon revealed after Senate President Bukola Saraki read a letter from Acting President Yemi Osinbajo, seeking the confirmation of the nomination of Mr. Lanre Gbajabiamila, as Director General of the National Lottery Regulatory Commission (NLRC).

The letter read in part: “In compliance with the provisions of section 8 (1A) of the National Lottery Act 2005, I write to forward the name of Mr. Lanre Gbajabiamila as the nominee for the position of Director General, National Lottery Regulatory Commission for the consideration and appointment of the Senate.”

And the Magu Conundrum Re-surfaces

The tone for the day was set by Senator Sani Ahmed Yerima, who citing order 14 of Senate Rules, queried why Osinbajo deemed it fit to request for the confirmation of Gbajabiamila, when he, Osinbajo, had already observed that the Senate’s confirmation of a nominee was immaterial to the appointment. Yerima noted that it was therefore necessary to seek clarification on the statement, before bothering to embark on a fresh confirmation exercise.

Yerima and others, who spoke at plenary last Tuesday argued that the confirmation of nominees by the Senate seems immaterial, since whether or not they are rejected does not stop nominees from occupying the positions. They cited the case of of Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu.

Magu’s nomination as substantive Chairman of the anti-graft agency was twice rejected by the Senate (in December 2016 and March 2017) on the basis of a report by the Department of State Services (DSS), which indicted him for criminal and unprofessional conduct. He has however remained in office since then, albeit in acting capacity.

The Senate said its latest position was prompted by a need to clarify issues on its power to confirm executive nominees for appointments, which was allegedly called to question by Osinbajo. Many of the Senators queried why the presidency had held on to Magu, particularly as he was indicted by an agency of same presidency.

Senator George Thompson Sekibo (Rivers East) maintained that one of the core functions of the Senate, as stipulated by the 1999 constitution, is to confirm nominees of the President.

“If the Acting President says we do not have power to confirm, I wonder whether he is in touch with the EFCC Act. If he says we don’t have power to confirm, and he is sending us a nomination, is he reversing himself” he said, adding that to retain a nominee that has been rejected by the Senate undermines democratic institutions and plays down the authority of the lawmakers.

Deputy Senate President Ike Ekweremadu emphasised that the position of the Senate was not about Magu, or Gbajabiamila, but about the constitution. Citing sections 5, 153, 155 and 171 of the 1999 constitution, Ekweremadu said the laws of the country must be obeyed.

“If the law says you require confirmation, it means you need confirmation,” he said.

The lawmakers urged the Acting President to respect the constitution and laws enacted by the National Assembly, as it relates to the confirmation of nominees, and also respect the rejection of nominees by the Senate, meaning he should sack Magu.

Ruling on the issue, Saraki said the matter must be addressed once and for all.

“It is very clear these resolutions as passed must be acted upon by the Acting President, and ensure that we continue to respect our democracy, our laws, and constitution. It is not for us to choose which laws we obey and which laws we don’t obey. That is not the way any civilised, modern society works. And we hope that the Acting President will take appropriate action in line with these resolutions,” he said.

The Executive Inconsistencies

The initial letter to the Senate nominating Magu as EFCC Chairman, dated June 17, 2016, which co-incidentally was written by Osinbajo as Acting President at the time, reads in part:

“In view of the following, I hereby draw Your Excellency’s attention to the vacancy that existed in the EFCC. Having carefully considered eminently suitable qualified Nigerians for the vacant position, I am pleased to inform you of the appointment of the following and to propose them for confirmation of the Senate as provided by the EFCC Act”.

Osinbajo however contradicted himself when in April 2017, while reacting to the second rejection of Magu by the lawmakers, said the nominee did not require the confirmation of the Senate. He was quoted as saying:

“It is up to the senate to make their judgment, and it is up to us to say what we want to do. If our candidate is rejected, we can re-present him. No law says we can’t re-present him. And again, there is the other argument, whether or not we need to present him for confirmation and that’s a compelling argument from Femi Falana,” he said.

“His (Falana’s) argument is that under the constitution, section 171, and if you look at that section, it talks about the appointments that the president can make. They include appointments of ministers, ambassadors and heads of agencies such as the EFCC. In that same section 171, the constitution rightly said that certain appointments must go to the senate such as ministerial and ambassadorial appointments. Those of heads of agencies like the EFCC do not have to go to the senate. That’s what the constitution says. But the EFCC act, which of course as you know is inferior, says that EFCC chairman should go to the senate for confirmation.”

“I am sure that even a pocket book lawyer knows that when legislation conflicts with constitution, it’s the constitution that prevails. I agree with Mr. Falana that there was no need in the first place to have sent Magu’s name to the senate, but we did so and it was rejected by the senate. But I believe that it can be re-presented. I don’t think there is anything wrong about the fact that senate has rejected him. Senate has acted in its own wisdom to say ‘No, we don’t want him’, and we can say, ‘This is our candidate…we like the gentleman and we want him to continue,” Osinbajo said.

The Acting President’s initial letter seeking Magu’s confirmation explicitly stated “…for confirmation of the Senate as provided by the EFCC Act”. His letter seeking Gbajabiamila’s confirmation also stated “In compliance with the provisions of section 8 (1A) of the National Lottery Act 2005…” Falana’s argument, which Osinbajo has relied upon to make his pronouncement, observed that the EFCC was not listed among the agencies or parastatals that require confirmation.

The question therefore is why did Osinbajo send Magu’s confirmation if he prefers to rely on Section 171 of the constitution? Second, since he considers the EFCC Act to be in conflict with and inferior to the constitution, is it not also better for him to assume that the NLRC Act is in conflict, and simply appoint Gbajabiamila to resume office? Why did the Executive apologise recently when Gbajabiamila resumed office without going through the required processes by the Senate?

It amounts to sheer inconsistency and diplomatic hypocrisy to send Gbajabiamila’s nomination, when NLRC was also not listed. If Osinbajo relied on the NLRC Act to seek the confirmation, it implies that Magu’s confirmation is also required from the Senate in line with the EFCC Act.

Also if the presidency claims it finds the report of the DSS, which indicted Magu, immaterial to his appointment, why did the presidency replace the non-career ambassadorial nominee from Ondo State, Mr. Jacob Igbekele Daodu, who was rejected by the Senate based on a report of the Department of State Services (DSS), which indicted him for corruption?

Final Analysis…

The latest standoff should not be surprising to political watchers in the last few weeks. The relief that greeted the signing of the 2017 budget just a few days to the expiration of the 2016 budget was dispelled when the Executive and the National Assembly started throwing subtle jibes at each other over alleged manipulations of the spending bill.

If Osinbajo was subtle in expressing displeasure at what he called insertions in the budget and reached a virulent deal for critical projects, the Minister of Power, Works and Housing, Mr. Babatunde Fashola, was more vocal when he leveled various allegations against the lawmakers. But the controversy on whether or not the nominations of executive nominees are validated by the Senate may have been summed up by two senators.

Senator Isa Misau (Bauchi) accused the executive of engaging in double standards and hypocrisy. He said “There are people that they want, even if the National Assembly would not confirm them,” he summarised.

The position of the Chief Whip, Senator Olusola Adeyeye was most succinct. Adeyeye disclosed that he voted ‘yes’ for Magu, but the Senate voted nay.  “I voted yes for Magu. But the Senate of the Federal Republic of Nigeria voted no. I stand with the Nigerian Senate. I choose a strong institution. We should not allow our institutions to be weakened.

“Every public servant is bound to obey every law of the Republic. Nobody, not the President, Vice or the Senate President has the right to disobey our laws. Whoever has problems with our laws should go to court and declare them null and void. Until that is done, every law of the land must be respected,” Adeyeye added.

However, indications that this renewed face-off might be a long haul emerged on Thursday, when Osinbajo declared that nobody could remove Magu from office. Speaking at the commissioning of the zonal office of the EFCC in Kaduna, Osinbajo, who was represented by the Kaduna State Governor, Mallam Nasir el-Rufai, expressed confidence in the capacity of Magu in the fight against corruption.

El-Rufai, who claimed to have spoken to President Mohammadu Buhari on Magu, added that the president had assured him that as long as he (Buhari) remains president, Magu would not vacate the anti-corruption agency chair seat.

“We have every confidence in Magu to fight corruption to a standstill. He will remain the EFCC chairman as long as I remain the acting president and as well as Muhammadu Buhari remains the president,” he said.

Although it is debatable that el-Rufai might have pushed his personal view while representing Osinbajo, but with such a position laundered in the name of the acting president, the last is yet to be heard of the face-off between the executive and legislature.