Ozekhome's formal written presentation on Magu
28th July, 2020.
ORAL PRESENTATION MADE BEFORE THE PRESIDENTIAL TASK FORCE INVESTIGATION COMMITTEE ON ALLEGED MISMANAGEMENT OF ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) FEDERAL GOVERNMENT RECOVERED ASSETS AND FINANCES, FROM MAY, 2015 TO MAY, 2020, HEADED BY JUSTICE AYO SALAMI, JCA (RTD),
BY SUMMONED WITNESS:
CHIEF MIKE OZEKHOME, SAN, OFR, FCIArb, LL.M, Ph.D, LL.D.
DATED TUESDAY, 28TH JULY, 2020, AND THEREAFTER BY WRITTEN ADDRESS DATED FRIDAY, 18TH SEPTEMBER, 2020.
INTRODUCTION
I had long watched from the sidelines, albeit with bated animation, the sad events leading to the suspension, arrest, detention and release of the erstwhile Acting Chairman of the EFFC, Mr Ibrahim Magu. I had written conspicuously on the EFCC and its poor modus operandi, lack of organisational skills, poor and barren leadership, and perceived corruption since June, 2016, barely a year after the President Muhammadu Buhari government was sworn in, and Mr Magu appointed Acting Chairman of the EFCC. I first received an official invitation by letter to appear before this Justice Ayo Salami-led presidential on Tuesday, 28th July, 2020, over its investigation of the EFCC in the last five years. I would not have appeared before this panel without such a formal invitation in writing; neither would I have appeared if I did not have trust in the transparency and pan-Nigerianism of the Chairman of the panel, Justice Ayo Salami. This my written address is herewith marked EXHIBIT MO1.
MY ANTECEDENTS
I would start my interaction with this panel by introducing myself. I am a Nigerian patriot, a human rights activist, and a pro-democracy campaigner, who has practised law for over 39 years. I took the silk 11 years ago, as a Senior Advocate of Nigeria (SAN). I am also an Officer of the Federal Republic (OFR), Senior Advocate of the Masses (SAM), Notary Public of Nigeria, Social Critic, motivational Speaker, and Knight of the Order of St. Mulumba (KSM). I have been honoured locally and globally with several awards. I have Bachelors and Masters Degrees in law; 8 Doctorate Degrees (honoris causa); a Ph.D degree by Doctoral thesis; over 16 fellowships; and I am a Counsel at the International Criminal Court (ICC) at The Hague. I am Author of many books, some legal, some non-legal – in which I discuss legal jurisprudential and national issues.
I have participated in the last 3 major National Conferences in Nigeria, to help re-engineer and retool the weak structure and fabric of the Nigerian nation. These are the 2005 National Political Reform Conference, midwifed by the President Olusegun Obansanjo government; the Vision 2020, convoked by late President Umaru Yar’Adua; and, the 2014 National Conference, convened by President Goodluck Ebele Johnathan.
I am the co-founder of the first ever human rights organisation in Nigeria, the Civil Liberties Organisation (CLO), on 15th October, 1987. I later solely founded the Universal Defenders of Democracy (UDD), launched by late Justice (Dr) Akinola Aguda, in 1992. In the year 1998, I co-founded the Joint Action Committee of Nigeria (JACON) with late icon, Chief Gani Fawehinmi, SAN, SAM, who was the National Chairman. I was the National Vice Chairman (Publicity and Publications). I was in the trenches during successive Military juntas, fighting the Military, all towards enthronement of democracy. I was serially beaten, tear-gassed, detained, dehumanised, degraded, with my phones bugged for several years. I have, over the years, proposed many reforms in the Nigerian polity, the anti-graft war and the EFCC in my series of interventions. I wrote. I spoke on television. I granted interviews. I fought in court. But, the government, especially Magu, using the EFCC, came after me.
I have tried in my 39 years of legal practice to use law as an instrument of social, economic and political engineering (Dean Roscoe Pound). I have fought very hard to empower the weak; give voice to the voiceless; strengthen and give hope to the most vulnerable, the weak, beleaguered, oppressed, repressed, suppressed, marginalised, denied, forgotten and rejected members of the society. I am married with children. To God be the entire glory.
WHY I ACCEPTED THE INVITATION TO APPEAR BEFORE THIS PANEL
My appearance before this panel is not necessarily for damage assessment, or to pull people down; but, to share my vision and views with the panel, on how to re-build the EFCC and other security agencies, to become strong national institutions, instead of throwing up strong men and strong women as we have so far seen. To this end, I have brought along with me, several files and concrete video evidence, to show how I have, through my weekly newspaper columns (Sunday Telegraph; Wednesday Sun and Tuesday Thisday), meetings, lectures, workshops, press releases and letters over the years, advised on how best to kill the corruption monster. These pieces of evidence also include the urgency of re-organising and re-structuring the EFFC, with many recommendations, as to how the EFCC could be better reformed, re-organised and restructured, to meet the yearning expectations of the generality of Nigerians who are suffering under the terrible yoke of corruption.
MR. IBRAHIM MAGU UNCONSCIONABLY APPROXIMATED THE EFCC
It is of great disappointment, that the EFCC of today, just as it has been since it was set up by the EFCC (Establishment) Act, 2004, has been about displaying strong men and strong women, with each successive Chairman or Acting Chairman trying to outdo himself and others before him, in carrying out the bidding of the government in power, no matter how detestable. They thus play to the gallery. The EFCC of the last 4 years under Magu has become a lawless organisation that violates people’s rights with impunity, disobeys court orders, intimidates the Judiciary, harasses lawyers, kills entrepreneurship and causes capital flight and massive disinvestment.
I, therefore, crave this panel’s indulgence to allow me mention Ibrahim Magu time and time again, because Magu fully epitomised the EFCC. Thus, you cannot differentiate Magu from the EFCC and the EFCC from Magu. They are Siamese twins, and six and half a dozen. This is because the EFCC did not represent a strong institution, independent of Magu, its Acting Chairman. Consequently, serial breaches by the EFCC under Magu are equally those of Magu himself. In many instances, which I have myself witnessed, whenever you ask the EFCC prosecutors or operatives why they were doing the wrong thing, they would tell you emphatically that “our Oga, Magu, told us to do so”.
I HATE CORRUPTION WITH ALL MY HEART AND SOUL
I must emphasise, for reiteration and record purposes, that I do not believe in corruption. I was perhaps the first Nigerian, in January, 2015 (when I met with the current president, Muhammadu Buhari, at that time still campaigning as APC candidate, and Professor Sagay, SAN, Chairman of PACAC, at a Police workshop), who made the famous statement (which should have been patented): “we must kill corruption before corruption kills us, because corruption has become the 37th state of Nigeria and the wealthiest and most powerful”.
However, being a rights activist, constitutional lawyer and unwavering supporter of the Rule of Law, I have always added a caveat: “We must fight corruption within the parameters and legal regime of our constitutional democracy, by respecting citizens’ fundamental rights, observing the rule of law and obeying court orders, even if unpalatable to the EFCC”.
MY PERSONAL INTERACTIONS WITH MR MAGU ON HOW TO FIGHT CORRUPTION
MY FIRST ENCOUNTER WITH MR MAGU
I had personally interacted with Mr Ibrahim Magu, on a number of occasions on best strategies to fight corruption and win. The first time was at his old office at Fomela Street, Wuse II, Abuja, in June, 2017, when I went to ask for the administrative bail of my client, one Alhaji Abdulhamid Zari, who had been in EFCC detention and custody for over one week; and also publicly in August, 2017. I had made this friendly rapprochement rather than going to court to seek bail as I could easily have done and have always done, so as to show that we could fight corruption without enlisting enmity and rancour. Mr Magu had promised me, on the strength of his words and integrity as a man of true words, that I should tell my client (Zari) to report to EFCC and that no one would further detain him, since I had personally come myself to ask for Zari’s administrative bail. Rather than this promise being fulfilled, my client, with my junior lawyer, reported to the EFCC as promised, and my client was promptly clamped into detention again. He spent the next 8 days in their custody or dungeon (as people call it); until I went to court to seek bail and secure my client’s release. Upon serving the EFCC the court processes (bail application), the EFCC hurriedly released Zari the next day. Meanwhile, the EFCC had also gone to the house and factory of this same client, to mark it with their normal red label and paint (“EFCC Zone: Keep off”). Therefore, my client, his wife, his family and his workers were all wrongfully thrown out of the premises. I, again, went to the Federal High Court to ask that these paintings be removed and the properties released from further damage in order to let my client, his family and his workers resume possession. The court granted this order, but the EFCC refused to obey the court order, as it was their passtime, until much later when it became convenient for them, in a most arbitrary manner [Tender court processes and publications concerning this case].
MY SECOND ENCOUNTER WITH MR MAGU
The second time I interacted with Mr Magu, this time publicly, was in August, 2017, when Mr Magu himself, most kindly invited me to the EFCC’s Training Centre at Karu, Abuja, where I spoke directly to Magu and the audience, saying that corruption should not be fought selectively, by allowing perceived corrupt people in government to go scot-free. I asked Magu what he was doing about perceived corruption within the EFCC itself, which Magu himself had admitted existed during his first confirmation appearance before the Senate. I also asked Magu, specifically, what he was doing about recovered loots, monies and properties, which Nigerians are saying were being relooted. Prior to this, I had written a letter to the Vice President, who was then the Acting President of Nigeria, on 31st May, 2017, where I asked him 12 questions concerning recovered loots, which many Nigerians said were being relooted. The letter was delivered at Aso Villa on 1st June, 2017.
In my speech, I challenged Magu to just put one person in government in the dock, so that Nigerians would believe he was genuinely fighting corruption. This is because what was happening was that when a member of the opposition party decamped to the ruling APC party, all the sins of that member are immediately forgiven, like Namaan the leper, who dipped himself into River Jordan 7 times and was cleansed of his leprosy. The anti-corruption war should not be (but has since been reduced to) a battle of “we” versus “them”; as it is almost a norm that all the members of the ruling party are deemed to be uncorrupt and incorruptible, while all the members of the opposition parties, rights activists, critics, lawyers defending accused persons, are all deemed corrupt.
I further went ahead to speak to the letter I wrote to Yemi Osibanjo, with a view to making the contents known to the public, by including it in a series of my writes-up. I hereby tender to the panel, the CDs of the very meeting (workshop to which Magu had invited me) containing my advice to Magu. From the contents of the CD, and from Magu’s demeanour, he did not appear angry with me. In fact, in all fairness to Magu, some overzealous EFCC operatives did not want me to speak on that occasion, believing that I would simply abuse Magu, the EFCC and the government. But, Magu pushed for me to speak, stating that I had come to help the EFCC. The EFCC originally wanted me to speak for 2 minutes only, but upon seeing my wonderful performance, the audience cheered me on, and asked me to continue, thereby rendering my speech to last for about 7-10 minutes, instead of the initial 2 minutes allotted to me. Comrade Adams Oshiomole was the Chairman at the occasion.
MY THIRD ENCOUNTER WITH MR MAGU
It was on 19th December, 2017, at the Federal High Court Hall, Abuja. It was at the Annual Merit Award of the Court. Both Mr Magu and my humble self were special guests at the event. At the book launch of Justice Ibrahim Auta, during the event, Magu had singled me out in his speech, say I had “a responsibility to join the ongoing war against corruption in Nigeria”. The insinuation or innuendo were clear: That because I defend certain clients accused of corruption (which charges had not been proven, making Magu, PACAL and their supporters to call such lawyers “defenders of corrupt Politicians”), I was not fighting corruption.
I was given a right of response and I told them challenged Magu to prove that the anti-corruption war was not being sincerely fought. It was selective against the opposition, rights activists and perceived critics of government. I then told Mr Magu to his face:
“Mr Magu, do us one favour, show us one person in the government, in your government that you docked, let Nigerians see that you are trying this one person”!
“Then you would have achieved mileage in the fight against corruption just one example! Put a Minister, put the former SGF that has been indicted in the dock, just put one, then we will say you are serious and no longer selective”.
“When you are selective in the fight against corruption and yet when you check your corruption. You treat the government with Sasorabia perfume and then fight opposition politicians and critics with insecticides, then you can’t be serious”.
“When you seize a lawyer’s professional fees paid, you can’t be said to be fighting corruption”.
“My lord Sirs, please be creative, do justice without fear or favour. Do what the Court of Appeal just did in the case of Justice Nganjiwa. That is a judgment that is proper, historic and should be celebrated. I support that judgment”.
“A Judge should not be afraid to do his or her job. You should not be afraid, heaven will not fall. Soldiers come and go but barracks remain. Operatives of government come and go but government remains”.
“Let us build strong institutions and not strong men”, Ozekhome concluded amid thunderous applause from other guests at the event, including retired and serving Judges”.
Among those at the occasion included Justice Hyeladzira Ngajiwa whose corruption charge was recently qualified the Court of Appeal in Lagos.
Equally at the event was a Senior Advocate of Nigeria, Mr Ricky Tarfa who is also facing charges EFCC preferred against him over allegation that he offered bribe to a Judge.
See EXHIBITS MG, MG1, MG2, MG3, MG4 and MG5.
As far back as June, 2016, during the M. K. O. Abiola and Kudirat Abiola’s remeberance day at Chief Abiola house in Ikeja, Lagos (when the government was barely 1 year in office), I had peered into the future, like Nostradamus (the man who saw tomorrow), to tell the government why many Nigerians were not buying into the anti-corruption fight. I hereby tender a CD containing my advice to the government, along with another CD titled “Why DSS, EFCC and Buhari’s anti-corruption war is failing”. I made it clear in these exhibits, how to fight and win the anti-corruption fight. I had also encountered Magu at the Federal High Court, Abuja, in December, 2017, during Justice Ibrahim Auta’s valedictory session as Chief Judge of the Federal High Court. I hereby tender already submitted to this panel with the link as https://www.youtube.com/watch?v=D1iDgoi_Byw. I also later lamented, after the setting up of this Panel and Magu’s detention, how and had warned Magu and the government severally, that recovered loots were being relooted. See EXHIBITS RL, RL1, and RL2. Even then, I pleaded with Nigerians to respect magu’s fundamental rights and not to accord him media trial or name and shame him, without due process, as he did serially to Nigerians. See EXHIBITS MT, MT1, MT2 and MT3.
HOW MAGU CALLED NIGERIAN LAWYERS “ROGUES AND VULTURES
Mr. Ibrahim Magu in his moments of power inebriation descended on the entire Nigerian lawyers, on 28th august, 2016, bcalling then “rogues and vultures”, and as creating a “cabal of untouchables”. This was during the 56th Annual General Conference (AGC) of the NBA in Port-Harcourt, Rivers State.
See EXHIBITS SP, SP1, SP2, SP3, SP4, SP5, SP6, SP7, SP8, SP9, SP10, SP11 AND SP12.
The above uncouth abuse and denigration of an entire profession and class of lawyers, caused much uproar, ruckus and hoopla, laws in theor hundreds, with other Nigerians descended on Magu, for denigrating a noble profession, in his assumed (but false) sainthood and posture of a messiah,
See EXHIBITS NB, NB1, NB2, NB3, NB4, NB5, NB6, NB7, NB8, NB9, NB10, NB11, NB12, NB13, NB14 and NB15.
MY A-Z AND 24 DOS AND DON’TS OF HOW TO FIGHT CORRUPTION
I did not just criticise EFFC and Magu’s unorthodox way and manner of fighting corruption. I made it clear that fighting corruption with corruption was even more corrupt than the original corruption. I actually preferred series of solutions as to how to fight and win the war against corruption. At a round table workshop organised by the Centre for Anti-Corruption and Open Leadership (CACOL) in April, 2017, I presented a paper on how best to fight and win the anti-corruption war; and how to also wrongly fight and lose it. I subsequently published this paper severally to bring it to the attention of the EFCC and other anti-corruption agencies in the country. I hereby tender this illuminating paper marked as EXHIBIT A.
MR MAGU’S CONTINUED STAY IN OFFICE AFTER SENATE’S REJECTION WAS ILLEGAL
SENATE’’S FIRST REJECTION OF MAGU
On 15th December, 2016, the 8th Senate of the NASS had declined to confirm Magu based on President Muhammadu Buhari’s letter, requesting for confirmation of Mr Magu as Executive Chairman of the EFCC. The Senate rightly based it on the strong grounf that the same government’s secret agency, the Department of State Services (DSS), had written a damning report indicting Magu of serial acts of corruption. The DSS had roundly discredited Magu’s capability to creditably carry out his duties. The DSS report pointedly accused Magu of being corrupt, owning “undeclared pieces of property” and of “gross violation of human rights”. Expectedly, Mr Magu denied the charges.
SENATE’S SECOND REJECTION OF MAGU
Not only did the President retain Magu in an acting capacity, he was again re-nominated in January, 2017, just one month later. The DSS report was thrashed. On the 14th of March, 2017 (three months later), the Senate again, for the second time, roundly and unanimously rejected Mr President’s request for confirmation of Magu as EFCC Executive Chairman. The DSS said Magu has “failed the integrity test and will eventually constitute a liability to the anti-corruption stand of the current government”.
The report said he was staying in a N40 million mansion paid for by a corrupt businessman. When asked how much had veen recovered since he took charge of EFCC, Magu replied, “it is difficult to give report on how much has been recovered from the fight against corruption”.
MAGU SHOULD HAVE RESIGNED HONOURABLY, OR HIS NAME WITHDRAWN
For a man whose credibility and moral standing to fight the anti-corruption fght had been so gravely damaged, Magu ought to have honourably resigned his appointment, or his name promptly withdrawn by Mr President and replaced with another credible person out of about 200 million Nigerians. Like Caesar’s wife, he must be seen to be above board. Indeed, the Senate, through the then Chairman of the Senate Committee on Public Petitions, Senator Samuel Anyanwu, actually made it clear it no longer regarded Mr Magu as Acting Chairman of the EFCC, having been so roundly indicted. He stated that although there were massive petitions against the EFCC, they would not invite Magu “because he was no longer seen as the Acting Chairman”. I tender herewith various online publications regarding the first and second rejection by the Senate of Magu as Executive Chairman of EFCC. I wrote copiously on this, advising Magu to better resign, since he did not equate EFCC. I argued in my press release published in virtually all Nigerian Newspapers; that we must build strong institutions and not strong men and women. A copy of the press release is herein tendered as EXHIBIT B.
In a curious response to Magu’s rejection by the Senate, PACAC came out smoking, to defend Magu, saying the allegations against him were “cooked up to prevent him from being appointed”. It even said Magu was rejected because “he is just too good for the job” These statements found on various links are herein marked EXHIBITS B1 and B2.
PACAC even begged President Muhammadu Buhari not to remove Magu as Acting Chairman of the EFCC. It said, Magu could “continue in acting capacity indefinitely”. This is EXHIBIT B3 herein. Evidence of the Senate’s second reject is EXHIBIT B4 herein. Thus, despite Senate’s second rejection of Magu as Acting Chairman, EFCC, the government retained him, prodded on fully by PACAC. This is EXHIBIT B5 herein. My own humble understanding of corruption is that it goes beyond the mere giving and taking of bribe and looting (which are corruption themselves) and includes desecration of a nation’s institutions such as the Senate; with some strong people acting with impunity and violation of extant laws, rules, regulations and conventions.
THE POSITION IN THE USA
In discussing senatorial confirmation matters, it is apposite to scrutinize the US position, wherefrom we borrowed our Presidential system of government. Article II, Section 2, Clause 2 of the US Constitution provides:
“The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States."
Erudite Professor, Johan Verheij, in "The Senate Has No Constitutional Obligation to Consider Nominees" (2016), opines that the above provision creates a three-part appointment process. First, the President nominates. Second, the Senate provides advice and consent. Third, provided Senate consent has been secured, the President then makes the appointment. He argues that the history of the “Appointments Clause” confirms that the US Senate’s consent is a “precondition for appointment, and not an affirmative duty…”:
‘‘Since the Senate cannot originate an appointment, its constitutional duty is confined to the simple affirmation or rejection of the President’s nominations, and such nominations fail whenever it rejects them…’’.
The Senate cannot be turned into a rubber stamp, or be deprived of its power to reject a person whose nomination it believes, for any reason, is not in the interest of the nation. No one arm of government can act in torrorem, or claim pre-eminence to appoint without the concurrence of the other.
The Federalist Papers by James Madison, Alexander Hamilton and John Jay remain the most definitive resource of legal and historic scholars in search of the original intent of the framers of the US Constitution.
Federalist No. 76 states:
"The President is to nominate, and, by and with the advice and consent of the Senate, to appoint… “The necessity of their concurrence would ... be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters”.
Federalist No. 77 states:
“The consent of that body would be necessary to displace as well as to appoint."
While “consent” is used in US, EFCC Act uses “confirmation”.
As renowned American Professor of Constitutional Law, John McGinnis notes:
"The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. As the president has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination...The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. Nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters […] If the Senate fails to make that case and rejects the nominee for a pretextual reason, the President would generally be in a position to find a second candidate without these putative defects who generally shares the President's point of view. It is rare, however, for a President to renominate a person to a position once the Senate has declined to accept the nomination."
James Madison in this regard, wrote:"An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others."
So, where did Magu’s apologists borrow their interpretative grandstanding and egocentric swashbuckling from, that he could act in the office forever, in spite of his two time rejection by the Senate?
HISTORICAL REJECTIONS BY SENATE
On August 5, 1789, the Senate, for the first time, rejected a nomination and in so doing, established the tradition of "senatorial courtesy". Two days earlier, President Washington had submitted 102 appointments as collectors, naval officers, and surveyors to seaports. The Senate readily agreed to all, but one - Benjamin Fishbourn of Georgia. In rejecting him, the Senate shared the view of some of the Constitution's framers that Senators were best qualified to judge the fitness of nominees from their states. The President submitted a replacement, and a tactful letter of protest. He noted that the Senate probably had its reasons for rejecting Fishbourn. Heavens did not fall.
The first high-profile cabinet rejection by the Senate was in 1834, when the President, Andrew Jackson, lost a fight to get Attorney General, Roger Taney, named as Treasury Secretary, in the bitter fight over the Second Bank of the United States. Jackson later appointed Taney as US Chief Justice the following year. Heavens did not fall.
When President Andrew Johnson survived his impeachment trial, and he renominated Henry Stanbery, who had earlier been rejected as Attorney General, the Senate again promptly rejected Stanbery. President Johnson demurred. The roof did not cave in.
Without the consent of the US Senate, no Presidential nomination can result in an appointment to a Federal office.
The only people that could “step in” to question Senate are the voters because the Senate is ultimately accountable to the people. The people may, in future, vote out the Senators for such obstructionist position.
No external body, including the President, can force the Senate to confirm a nominee, since the Senate makes and follow its own rules made pursuant to the Constitution.
The Senate also rejected President Bush's nomination of John G. Tower to be Secretary of Defence. This was the first time in 30 years, and the first ever in the first 90 days in American history, that a President was denied his choice of a cabinet member.
The nominee was bruised by weeks of allegations about his private conduct. With Senate’s rejection, President Bush on the very day, while in New York, telephoned his Chief of Staff, John H. Sununu, to immediately discuss alternative candidates.
Mr. Bush, who did not want to open lasting wounds, later said: ''The Senate has made its determination. I respect its role in doing so but I disagree with the outcome….now, however, we owe it to the American people to come together and move forward.'' Mr. Tower returned to Texas. Heavens did not fall.
Debo Adegbile, 47, of Nigerian pedigree, became the first Obama nominee to be rejected under the new Senate Procedure Rules approved in November, 2016, that require just a majority of Senators present to vote on most presidential nominees. He was rejected as Obama’s nominee to head the Justice Department’s Civil Rights Division, for having participated in an appeal filed on behalf of Mumia Abu-Jamal, an internationally acclaimed prisoner, convicted of murdering a Philadelphian Police Officer.
Obama was angry, saying they “denied the American people an outstanding public servant”. But that ended the matter. Obama did not say Adegbile should act. Heavens did not fall.
WITHDRAWAL OF NOMINATIONS
Some persons have either been withdrawn by Presidents, or withdrew their own nominations, for several reasons.
Only in February, 2017, Andrew Puzder, President Donald Trump’s nominee for Secretary of Labour, personally withdrew, because he could not purge himself of allegations of wage theft, sexual harassment against his employees and spousal abuse. This is what Magu should have done upon his rejection.
LIST OF NOMINEES REJECTED BY US SENATE
So far in US history, successive Presidents have made 160 nominations to the Supreme Court. Only 124 were confirmed.
As at 2016, 9 cabinet members have been rejected by Senate; 13 nominations withdrawn, either by the President or by the nominee himself.
CONCLUSION
Although the US President has the authority to nominate someone to a cabinet office or to the Supreme Court, nothing in the Constitution requires the Senate to take any particular action in any particular time frame on that nominee. Federalist Paper 67 makes it clear that the President and the Senate jointly hold the appointment power, which is distinct from the power to merely nominate. This means the Senate is free to exercise its own power as it sees fit, to approve or reject a nominee, or not to act upon a nomination at all. Heavens will not fall. This is the same position in Nigeria.
Thus, in the specific case of Ibrahim Magu, Senate must first confirm his appointment before he can continue to be in office.
If the Senate refused, as it did, that ought to have ended Magu’s tenure. Heavens would not have fallen. He ceased to be in office in any capacity. “Acting” is not prescribed by, nor, envisaged by section 2(3) EFCC Act. “Acting” is not forever. Can anyone contemplate the bizarre situation where the Senate rejects a Ministerial or Ambassadorial nominee, and the President retains them in office as “Acting Minister” or “Acting Ambassador”? Infra dignitatem.
IMPLICATIONS OF MAGU’S CONTINUED STAY IN OFFICE AFTER SENATE’S 2-TIME REJECTION
It was a grave error on the part of Mr President to have continued to retain Magu in office as Acting Chairman of the EFCC after his 2-time rejection. It was in clear violation of section 2(3) of the EFCC (Establishment) act, 2004, which provides laconically as follows:
“The Chairman and members of the Commission other than ex-officio members shall be appointed by the President and appointment shall be subject to the confirmation of the Senate.”
Magu’s refusal to bow to the Senate’s rejection of him was corruption in itself. Corruption is not all simply about giving and receiving bribe and gratification alone. It includes, on a more serious scale, the deliberate violation of extant laws, persistent refusal to obey constructed authorities such as the NASS. Magu’s spiteful and scornful treatment of the Senate in spite of EFCC’s motto that “no one is above the law” and the moral burden thus foisted on him, were enough to have ended his reign as EFCC Acting Chairman. But a section of pro-Magu clappers and protagonists urged him on. One of the most outstanding of the persons, groups and institutions that encouraged Magu to act with impunity is the Presidential Advisory Committee Against Corruption (PACAC)
THE IGNOBLE ROLE OF PACAC
The Presidential Advisory Committee Against Corruption (PACAC) was established in August, 2015, with a 7-member technical Committee.
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