Time to Approach the Supreme Court


It’s about time both the executive and the legislature sought a proper interpretation of Section 171 of the constitution at the Supreme Court as it affects the Economic and Financial Crimes Commission Act, writes Olawale Olaleye

The rigmarole has gone on for too long and has become some sort of recurring decimal with each new administration, creating a gratuitous gulf between the Executive and the Legislature. Like Sections 59, 80 and 81 of the 1999 Constitution as amended, which deal with the powers of the National Assembly on the issue of budget and which of course remain controversial in recent years in view of the differing interests between the two arms of government, Section 171 of the Constitution has also caught the bug even more intensely.

This rivalry became more pronounced by the two times that the acting chairman of the Economic and Financial Crimes Commission (EFCC), Mr. Ibrahim Magu, was rejected by the Senate, following his indictment by the reports written on him by the Department of State Service (DSS) on those two occasions.

A few weeks ago, the National Assembly was reported to have gathered that the acting president, Professor Yemi Osinbajo, had begun to seek legal opinions from practically all the lawyers in the President Muhammau Buhari’s cabinet, particularly the Senior Advocates of Nigeria (SANs) among them. The lawyers in the cabinet, according to a report by THISDAY, were directed to produce their opinions inform of a memo to the acting president through his Chief of Staff, Mr. Ade Ipaye, who is also a lawyer and SAN, in addition to reportedly contacting some other constitutional law experts in the country.

Minister of Power, Works and Housing, Mr. Babatunde Fashola, was believed to have given the debate its current force, when he recently came out with an opinion that the legislature went beyond its powers in tampering with certain parts of the budget. Fashola however considered the idea of approaching the Supreme Court a healthy one in national interest and craved a one-off judicial interpretation in resolving the matter.

On his part, Professor Itse Sagay, Chairman, Presidential Advisory Committee on Anti-Corruption, also expressed similar opinion. But the Senate had quickly come out to dismiss Fashola’s claims as half-truths and claimed it was not consistent with the reality on the ground.

The fact that some of these developments were known to the National Assembly and reports that a suit on the issue to be filed at the Supreme Court was in the offing gave an entirely new twist to this avoidable rivalry. Again, because the National Assembly did not want to be caught unawares or ambushed by the executive, it was said to be monitoring events and that the leadership had equally decided to respond appropriately to any of the moves by the executive.

It is for this reason, perhaps, that the senators remain unfazed by reports that the presidency might likely head to the nation’s apex court to seek a judicial interpretation of Section 171 of the constitution to resolve the impasse on the powers of the Senate to confirm the nominees of the president and by extension whether Magu, could remain in office despite his rejection by the upper legislative chamber, twice.

Osinbajo, first gave hints that Magu would be retained despite the fact that his nomination was rejected by the Senate. He had cited an opinion expressed by prominent lawyer, Mr. Femi Falana, SAN, that Magu’s name ought not to have been sent to the Senate for confirmation in the first place because the chairmanship of the EFCC did not fall into the category of appointments that needed Senate confirmation as stated in Section 171 of the constitution. Even though the EFCC Act stipulates that a nominee for the chairmanship of the anti-graft agency must be confirmed by the Senate, Falana had argued that the Act setting up EFCC was inferior to the constitution, because the constitution did not include the EFCC as one of the agencies whose head must be cleared by the Senate.

This stance, notwithstanding, prompted a reaction from the Senate, which accused the presidency of double standards for sending the name of another nominee, Mr. Lanre Gbajabiamila, for the post of Director-General of the National Lottery Commission for confirmation, after dismissing its powers to consider and confirm nominees and on that basis, said it would no longer consider nominees sent by the presidency except Magu ceases to act as EFCC chairman.

But as a result of the impasse over the powers of the Senate to confirm the nominees of the president, which was further aggravated by the appropriation debate, Osinbajo had held a series of meetings with the leadership of the National Assembly to resolve the disagreement. Interestingly, they all seemed to have come to the conclusion that only a judicial interpretation of Section 171 of the constitution could resolve the matter once and for all.

Certainly, for all the time wasted and distraction created by this rather needless and avoidable debate, the time to approach the Supreme Court for a final adjudication on this matter is now. This will not just resolve the matter, it will further strengthen the nation’s democracy as well as situate even more properly, the principles of Separation of Power that had being eroded over time by the actions of both arms of government. Indeed, it is a worthy move in the nation’s interest.