This article is against the backdrop of certain facts.
Ibrahim Magu was appointed as acting chairman of the Economic and Financial Crimes Commission (EFCC) by President Buhari in December 2015. About a year later, in December 2016, his name was forwarded to the Senate for confirmation as substantive chairman of the EFCC by virtue of Section 2(3), EFCC Act which provides that "The Chairman and members of the Commission other than ex-officio members shall be appointed by the President, subject to the confirmation of the Senate". The Senate roundly rejected him. However, the President retained him as acting chairman. In March 2017, he was again nominated for Senate confirmation as substantive chairman. Once again, he was rejected by the Senate. Despite his second rejection, he continues to act as EFCC chairman.
This has sparked off a series of debates. One of such debates, which forms the crux of this discuss, is the legal implication of the Senate's rejection of a nominee on the nominee's continued stay in office in acting capacity. Those in support of a nominee's continued stay in office in acting capacity readily cite Section 171 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999. Subsection (1) of the above section provides that "Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President". Subsection (2) lists all the offices to which the section applies. The offices to which it applies are the Secretary to the government of the Federation (Par. A), the Head of Civil Service of the federation (Par. B), Ambassadors, High Commissioners or other principal representative of Nigeria abroad (Par. C), Permanent Secretaries in ministries and heads of extra-ministerial departments of the government of the Federation howsoever designated (Par. D), and Personal staff of the President (Par. E). The EFCC falls under extra-ministerial departments. Thus, they argue that the President can appoint an acting EFCC chairman as he pleases. On a cursory look, they may not be right.
It does appear that Section 171 CFRN 1999 did not envisage appointments subject to Senate confirmation. The offices mentioned in Subsection(2) do not envisage Senate confirmation. The first two offices mentioned in Paragraphs A and B are appointed by the President without recourse to Senate confirmation. Paragraph C is made subject to Senate confirmation by virtue of Section 171(4) CFRN 1999 which states that "An appointment to the office of Ambassador, High Commissioner or other Principal Representative of Nigeria abroad shall not have effect unless the appointment is confirmed by the Senate". Interestingly, this even buttresses my point because the constitution had to expressly prescribe Senate confirmation. If Senate confirmation was already envisaged, there would have been no need for it to be expressly stated. The category under Paragraph E is that of personal staff of the President. Of course, this category needs to Senate confirmation to make their appointment substantive. An example of such offices is that of the Chief of Staff of the President. There is actually a fourth category which was deliberately saved for the last. It is the category contained in Paragraph D. It mentions the offices of (1) The Permanent Secretary of a ministry and (2) The Head of any extra-ministerial department of the Federal Government. There is no problem with the Permanent Secretary because it is not an appointment that is subject to Senate confirmation. I contend that the heads extra-ministerial departments envisaged here are those who do not require Senate confirmation for substantive appointment. Examples of such are the Postmaster-General of the Nigerian Postal Service under the NIPOST Act, the Director-General of the National Productivity Centre under the National Productivity Center Act, the Director General of NAFDAC under the NAFDAC Act, the Director-General of the Department of State Security Services under the National Security Agencies Act, and so on. These appointments do not require Senate confirmation before they become substantive.
What then becomes of heads of extra-ministerial departments whose appointments are subject to Senate confirmation (which the EFCC falls under)? It is conducive to say that, although they weren't envisaged, they can also be incorporated under this section to the extent that the President makes the appointments and the category of offices are also in tandem with the one stated (extra ministerial department). However, they can only be incorporated with reservations. The exact rules that apply to Presidential appointments not requiring Senate confirmation cannot be applied to appointments requiring Senate confirmation, else there will be manifest absurdity.
Appointment of substantive heads not requiring Senate confirmation are totally the discretion of the President. It is usually for a definite period of time. However, because there is no need for Senate confirmation, the President is at liberty to appoint a person in acting capacity for a long period of time before either making the appointee a substantive one or he gets a replacement. More importantly, the President, in the exercise of his discretion, does not make rubbish the exercise of the powers of any other branch of government. This is very important. Since there is no Senate confirmation, there is no check on the executive in such appointments. Thus, the President's discretion is almost unbridled.
Where appointments are made subject to Senate confirmation, the President and the Senate share in the making of a substantive head. The tenure is also usually fixed. They do not function in acting capacity except :-
a) Where there is an interregnum between the tenure of the outgone substantive head and when another substantive head is to be appointed. There should be a reasonable time within which a new substantive head is sought.
b) Where the person in acting capacity is to be nominated for confirmation. The period of staying in acting capacity serves as an observation period.
Any other guise for staying in acting capacity is rather suspicious..
From the above, it is rather outrageous that a person occupying an office which is substantively occupied, subject to Senate confirmation, would do so for a whole year. One year is rather too much for an observation period or for an interregnum between two substantive tenures. It is more worrisome that even after the nomination and rejection of such an acting head, the President still keeps him in office in acting capacity. People are always quick to ask "which law says this or that?". In this case, they ask " which law says he cannot continue in acting capacity?" These people forget that inferences can also be drawn from statutes even where there is no express stipulation. The EFCC Act, Section 2(3) thereof, will not confer upon the Senate the right to confirm the EFCC chairman-nominee if it intends that the President can allow an acting chairman to remain in that capacity for as long as the President wishes. Neither can Section 171 CFRN 1999 or the abovementioned provision of the EFCC Act be construed to mean that even where the Senate has rejected a nominee who is in acting capacity, such a nominee can continue in acting capacity. It is against the spirit of the law! This is so because the whole essence of Senate confirmation is to serve as a check on the President with regards to appointments. Where the President goes ahead and allows a nominee to act for over a year before nomination, and even after nomination and rejection the nominee continues to function in acting capacity, the whole essence of the check is defeated. It makes rubbish of the exercise of the Senate's power of confirmation. Let us bear in mind that an acting chairman is as good as a substantive one but for lack of fixed tenure of office. Thus, there is no more check. That, certainly, cannot be the intendment of Section 171, CFRN 1999 and Section 2(3), EFCC Act. If Ibrahim Magu, the acting EFCC chairman can continue to act inspite of his rejection, then there was no need for the presidency to to nominate him for confirmation in the first place since he (Magu) can stay in office in that capacity for as long as the President wishes. Having a fixed tenure (if confirmed by the Senate) means that the occupant of that office must leave after his/her tenure elapses. But if an occupant's tenure is not fixed, but at the pleasure of the President (as some now say Magu's tenure is) due to his being in acting capacity, then an acting EFCC chairman can stay beyond the length of time granted to a substantive chairman under the Act (which, according to Section 3(1) of the EFCC Act, is four years. Thus, being in acting capacity will even seem better than being confirmed. After all, even those confirmed by the Senate can be removed by the President at will. This is a clear case of manifest absurdity. This is why I said earlier that the exact rules that apply to Presidential appointments not requiring Senate confirmation cannot be applied to appointments requiring Senate confirmation, else there will be manifest absurdity. While some may argue that this situation is not possible, it is advised that we think again. Ibrahim Magu has already acted for 15 months and the President's loyalists are urging him to keep him in acting capacity. It is not impossible except people begin to agitate for this check by the Senate on the President is respected.
It may be added that when the Senate rejects a nominee, it implies that such a person is not qualified to occupy that office. So why retain a person in an office in acting capacity when that person is deemed not to be qualified to occupy it? Remember, that whether the person is in acting capacity or otherwise is immaterial because he or she is still occupying that office. Part of the blame, therefore, must be placed on the doorstep of the Senate for even accepting the renomination of Magu. His tenure as acting chairman ought to have expired from the date of the first rejection (December, 2016).
Conclusively, it must be stated that laws are human creations and, as such, they are not perfect. We cannot have everything spelt out expressly in black and white. Sometimes, the law is saying something that we may not readily see expressly but can very well be implied if we look a bit more closely and try to see if the law wouldn't be defeating itself if we pretend that there are no implications to it. The purpose of Senate confirmation is to place a check on the executive. This check will be defeated if we place more emphasis on the nomenclature of the nominee (acting or substantive head) than on the fact that the purpose of the law is defeated. The President is in no way allowed to override the Senate's power of confirmation.
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