Buhari and Saraki...maintaining straight faces

With the recent directive by the presidency to some of its nominees to resume at their respective desks before confirmation by the Senate, the Executive might be courting trouble, writes Damilola Oyedele

If recent developments are anything to go by, the hitherto frosty relationship between the Executive arm of government and the legislature, the Senate in specific, may yet erupt into another round of stand-off. In the buzz that surrounded penultimate week’s return of President Muhammadu Buhari to Nigeria from London, where he had spent 103 days on medical vacation, a critical news item evaded national attention. Vice-President Yemi Osinbajo, in his capacity as acting president, on Friday, August 18 had reportedly directed the nominees for the position of chairmen of several agencies to resume office and act, pending their screening and confirmation by the Senate.

The Senate is currently on its annual summer recess, which would last until September 19, 2017. Osinbajo however hinged his directive on the need to ensure there are no vacuums in the ‘important federal institutions’, which include the Pension Commission (PENCOM), Independent Corrupt Practices and Other Related Offenses Commission (ICPC) and the Code of Conduct Bureau (CCB).

According to a statement by the Permanent Secretary in the Office of the Secretary to the Government of the Federation (OSGF), Mr. Bolaji Adebiyi, the affected nominees are: for PENCOM, Alhaji Ali Usman Ahmed (Acting Chairman), Mr. Funso Doherty (Acting Director-General), Mr. Manasseh T. Denga (Acting Executive Commissioner) Mr. Abubakar Z. Magawata (Acting Executive Commissioner), Mr. Ben Oviosun (Acting Executive Commissioner) and Mr. Nyerere Anyim (Acting Executive Commissioner).

Those affected by the directive at the CCB are Dr. Muhammad Isah (Acting Chairman), Mr. Murtala Kankia (Acting Member), Mr. Emmanuel E. Attah (Acting Member), Mr. Danjuma Sado (Acting Member), Mr. Ubolo I. Okpanachi (Acting Member), Mr. Ken Madaki Alkali (Acting Member), Prof. S. F. Ogundare (Acting Member), Hon. Ganiyu Hamzat (Acting Member), Mr. Saad A. Abubakar (Acting Member) and Dr. Vincent Nwanli (Acting Member).

The only nominee affected by the directive in ICPC is Prof. Bolaji Owasanoye, who was directed to resume as acting chairman. 

But the Senate was quick to point out that the Osinbajo directive would contravene the constitution, and cautioned the nominees not to resume work until their nominations are confirmed by it and as required by law. 

In a statement by its spokesperson, Senator Sabi Abdullahi, the Senate rejected insinuations that the directive to resume was as a result of an understanding between the Legislature and the Executive. 

“The leadership of the Senate has been inundated by enquiries from individuals from across the country, who want to know whether the statement from the office of the Secretary to the Government of the Federation to the effect that the nominees into the headship of PenCom, Code of Conduct Bureau and ICPC should resume work immediately pending their confirmation by the Senate was as a result of an understanding between the executive and the legislature.

“We will like to advise the acting president, who was quoted to have given the directive for the resumption of the nominees that the directive was illegal and not right. The Senate will not support any action that is not in line with the law. We advise the nominees to hold on until they are cleared by the Senate as required by the law before resuming in their respective offices. We do not want anything that will cause any problem between the executive and the legislature,” the statement read. 

  

An Immediate Flashback

A situation similar to the latest directive recently played out, culminating in an apology by the Executive to the Senate. The nominee for the position of the Director General of the National Lottery Regulatory Commission (NLRC), Mr. Lanre Gbajabiamila, in May had resumed office immediately he was nominated by the Executive. His resumption was without the requisite screening and subsequent confirmation by the Senate in line with Section 8 (1) of the Lottery Act.

The matter was brought to the attention of the Senate, which directed the Majority Leader, Senator Ahmed Lawan, to investigate the report and Lawan, on May 18, 2017 confirmed that Gbajabiamila had indeed been performing the functions of the office, without confirmation of his appointment by the Senate. 

“Yesterday (May 17, 2017) the Senate by way of resolution mandated me to investigate an issue, a case of a nominee, who is yet to be screened and confirmed by the Senate and who is yet to receive an appointment letter from the office of the Secretary to the Government of the Federation, but that nominee assumed office,” he said, adding that “I stand here to report what actually happened. The nominee for the office the Director-General of the national lottery commission actually assumed office.”

Lawan added that the nominee must have been misguided to assume office without going through due process.

“I spoke with all those, who should know better, including the acting Secretary to the Government of the Federation, and the conclusion is that he erred because probably he did not get the correct briefing that he should have waited until the due process and diligence were completed,” Lawan said.

“I believe that was an error and there was a genuine appeal from the Executive that no such thing would ever happen again. I advised the SGF that the nominee should not be seen within the vicinity of the office of the DG until he is confirmed and an appointment letter is given to him,” the leader said.

The nominee adhered to the Senate directive to quit the office, and is currently awaiting his screening following the transmission of the nomination letter to the Senate by the Presidency.

It is therefore surprising that the presidency would again direct some nominees to resume without confirmation. 

For clarification purposes, Section 154 of the 1999 constitution specifically mentions that the chairman and member of the board of the Code of Conduct Bureau, shall be appointed by the President but subject to the confirmation by the Senate. While the appointees of the ICPC Board and PENCOM are not specifically mentioned in the constitution (as being argued in the unresolved impasse concerning the Acting Chairman of the Economic and Financial Crimes Commission, Mr. Ibrahim Magu), they are also not listed as part of the appointments the President can make without requiring Senate confirmation. 

Section 19 (3) of the Pension Reform Act provides that the Chairman, Director General and Commissioners shall be appointed by the President, subject to confirmation by the Senate. The Establishment Act of the ICPC also requires Senate confirmation for the Chairman and members, after appointment by the Senate, but goes further to add that they cannot resume their duties without declaring their assets. 

 

The Pertinent Questions

In considering the presidential directive, it is important that some pertinent questions are raised. For starters, in directing them to act pending screening and confirmation, what assurances does the presidency have that the nominees would pass the screening? After all, the presidency had nominated two persons: Maimuma Aliyu and Sa’ad Alanamu, who are currently being investigated for alleged corruption, to the board of the ICPC. 

The presidency had to withdraw their nominations after the discovery, indicating that the nominees were not properly vetted by the presidency before the nomination. Secondly, would any action taken by the nominees in acting capacity be considered legally binding? What happens to the actions of a nominee, who has acted until screening is rejected? How would the actions taken by him or her be construed? Would the nominee be replaced by the Executive as done in the case of an ambassadorial nominee from Ondo State, Mr. Jacob Daodu, who was rejected based on a report by the Department of State Services (DSS), which indicted him for corruption. Daodu was replaced by the presidency with Mr. Olusola Iji, who has since been confirmed.

Or would the Executive retain the nominee, while it explores constitutional loopholes as is being done in the case of Magu? ICPC board and PENCOM are not explicitly stated in the 1999 Constitution, just like the EFCC, but Acts establishing the three agencies provide for confirmation by the Senate. 

 

Conclusion

It is gratifying to read that several of the nominees have refused to comply with the directive. But issuing such order reinforces speculations that the executive may not have learnt lessons from issues that caused frictions between it and the legislature.

A worst case scenario would have envisaged a temporary shared understanding with the Senate, much as it would have been against extant laws, to have these people resume whilst their screening was pending. But sadly, such an understanding would have been feasible in a situation where there is mutual respect between the two arms of government.