Godwin Tsa Abuja
The Abuja division of the Federal High Court yesterday dismissed five suits seeking to declare the continued stay of Mr Ibrahim Magu as the acting chairman of the Economic and Financial Crimes Commission (EFCC) as illegal and unconstitutional.
Although the court held that by the provisions of section 2(3) of the EFCC Act, it was a mandatory requirement of the law that Magu’s appointment must be confirmed by the Senate to be validated, there was a lacuna in the law as there was no limitation to the powers of the president to re-appoint him.
In separate judgments, Justice Ijeoma Ojukwu held that the EFCC is not an extra-ministerial department of the Federal Government and, as such, the law provided that anyone nominated as its chairman by the president must pass through necessary “checks and balances” by the Senate.
The court held that whereas section 171 of the 1999 constitution, as amended, granted the President powers to appoint heads of extra-ministerial departments at his pleasure, section 2(3) of the EFCC Act 2004, made it mandatory that any nomination to EFCC chairmanship position must be screened by the Senate to satisfy the interest of the public.
“Public interest is very paramount in the appointment of any person to head to the EFCC”, Justice Ojukwu held, saying there was a lacuna in the law since section 2(3) of the EFCC Act did not put a limitation to President Muhammadu Buhari’s powers to re-appoint Magu, subject to confirmation by the Senate.
“The lacuna has given the President the proverbial knife and the yam,” Ojukwu noted, saying there was need for a renewed consciousness that laws must be implemented in accordance with public interest.”
The court held that the term “shall in section 2 (3) of the EFCC Act connote a command which must be complied with.
This, she held “is compulsory to ensure checks and balance between the executive and the legislature.”
“The language in section 2 (3) that the appointment of the chairman of the EFCC shall be confirmed by the Senate is clear and unambiguous and must be accorded its ordinary meanings. It, therefore, makes it compulsory for the President to get the confirmation of the Senate on the appointment of the EFCC chairman.
“The argument that by section 171(1) of the 1999 constitution, the EFCC is an extra- ministerial establishment and so its chairman does not require Senate confirmation is to me short circuited.
“By the establishment act of the EFCC, the tenure of its chairman is a stipulated period of four years and it does not expire with the tenure of the president.
“Therefore, where there is a rejection by the Senate, it beholves on the president to do the needful.”
Ojokwu, however, relied on section 11, 11 (1) (c)) of the interpretation Act, which she held creates a lacuna on the limitation of time for an appointee who is on acting capacity.
She held that the lacuna in the law gives the President the proverbial holder of the “knife and yam” to re-appoint the EFCC chairman and to also fire him.
She held that since the court cannot fill in the lacuna in the constitution, “the case has failed and is accordingly dismissed.”
Before the judgments, Ojokwu dismissed the objections raised by the defendants in the suits challenging the jurisdiction of the court as well as the locus standi of the plaintiffs.
She held that given the modern trend in judicial jurisprudence, the plaintiffs are clothed with the legal standing to institute the suits as the subject matter is of public interest.
