Some senior advocates has on Tuesday said the Senate lacked powers to direct Acting President Yemi Osinbajo to remove the Acting Chairman of the Economic and Financial Crimes Commission (EFCC) Ibrahim Magu.
Presidential Advisory Committee Against Corruption (PACAC) chairman Prof Itse Sagay, constitutional lawyer and renowned legal author Sebastine Hon and Chief Emeka Ngige, all Senior Advocates of Nigeria, said the Senate’s demand was illegal.
Sagay said the Senate should be ready to bear the consequences of bringing government to a halt should it make good its threat to suspended all confirmation of appointments until compliance with its resolution.
He accused the Senate of trying to usurp the President’s powers on appointment.
Besides, Sagay said the provision in the EFCC Act that the commission’s chairman’s appointment was subject to Senate confirmation was invalid for being inconsistent with the Constitution.
The eminent professor of law said: “This is a Senate that does not realise that it is part of the legislature and not an executive body. And they want to do both the legislative and executive work together, which will totally eliminate the principle of separation of powers. That’s the sort of people they are. They’re legislators, but they’re hungry to be the executive body.
“If they threaten to bring government to a halt, they will bear the responsibility and consequences that will arise. Let them be ready to take the consequences of their actions.
“In fact, it may be good for this country for them to expose themselves like that and let the country know the people who constitute a problem to good governance in Nigeria.”
Sagay said the Senate lacks the powers to direct Osinbajo to remove Magu.
“How can they say he should remove somebody? That is an executive power. The Constitution empowers the President to appoint the chairman of EFCC and other such agencies directly.
“So, if they’re uncomfortable with the fight against corruption and feel threatened by a man who is upright, committed and will not be distracted from doing his job, if they’re not comfortable with that, it’s unfortunate. But nobody is going to listen to them as far as that is concerned.
“If they want to indulge in the misadventure and danger of bringing government to a halt, then on their head will be the consequences,” Sagay said.
On the provision of Section 2 (3) of the EFCC Act that the commission’s chairman’s appointment was subject to Senate confirmation, Sagay said it was not binding.
The section reads: “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.”
On why the section is invalid, Sagay said: “It is invalid because it is in conflict with the provisions of the Constitution.”
Ngige described the Senate’s demand as “ill-advised”, adding that threatening the executive amounted to arm-twisting.
He urged the lawmakers to approach the Supreme Court for determination of the issue.
Ngige said: “I think the action is ill-advised. The issue in contention is the correct interpretation of section 171 of the 1999 Constitution as it pertains to whether senate confirmation is required for certain class of political office holders.
“My take is that the Senate should invoke the original jurisdiction of the Supreme Court on the issue and get a final and definitive pronouncement on the matter.
“I think what the senate resolved to do by going on strike, as it were, is undemocratic and tantamount to arm-twisting the executive.
“In my view, the issue of judicial interpretation of Section 171 of the Constitution is highly recommended because either side can win if tested in the apex court.
“The matter should not be personalised on the status of Magu after his failed confirmation hearing.”
Hon also believes the Senate lacks constitutional powers to compel Osinbajo to remove Magu.
He said: “The powers of the National Assembly are, by sections 4 (1), 58 and 59 of the Constitution, limited to lawmaking.
“Not even sections 88 and 89 of the Constitution, which provide for oversight functions of the National Assembly, imbue the Senate with such powers – since those provisions have nothing to do with a person expressing a personal opinion on an issue.”
He argued that if the Senate was aggrieved, it could go to court and not resort to grandstanding, which would needlessly heat up an already charged polity.