INTRODUCTION
The Rule of Law Development Foundation (ROLDF) is an interventionist civil society concentrating on Rule of Law issues that arise in Nigeria and worldwide. By way of press statements, seminars, webcasts, conferences the Foundation draws attention to breaches of the Rule of Law and other constitutional infractions that occur or are commonplace in Nigeria, Africa and beyond. The Foundation is on record, since its inception, to have campaigned vigorously for the preservation of Rule of Law principles and values in the Nigerian society. Unfortunately, since independence, there has been the tendency of Nigerian leaders (albeit in varying degrees) to subvert the Rule of Law in the discharge of their constitutional functions and duties to administer peace, order and good government of the nation.
The emergence of President Muhammadu Buhari as the constitutional head of the Federal Republic of Nigeria was as a result of the victory of the All Progressive Congress (APC) in an election that was fairly characterised as free and fair and in which the sitting President Dr. Goodluck Ebele Jonathan GCFR conceded defeat in an unprecedented but statesmanlike manner. There was from that point ‘great expectations’ from the Buhari Administration in all spheres of governance be it economic, political, social and cultural. The reality today is that the economy has nosedived, standard of living has plummeted, Nigerians have been reduced to penury and begging for sustenance, The Roads are in an outright mess and not traversable, e.g. the artery of the nation Birnin Gwari -Ilorin and beyond, job creation is at an all-time low and due to current foreign exchange regulations industries, factories and workplaces dependent on available foreign exchange have all but shut down. This press statement cannot bring out as graphically as expected the level of suffering on Nigerians and Nigeria by the adverse policies of the Buhari Administration, which are said to be good intentioned but are clearly not working in the circumstances.
Not unexpected, Government of the day has blamed the present economic situation on a recession triggered by the lapses of the Goodluck Administration. But it ought to be noted that the said Administration exited the scene almost 2 years ago, surely there has been sufficient lapse of time for today’s government to lay positive foundation for the redress of the ills of the nation. It must be said however that the only critical lapse of the Goodluck Administration, which brought about its demise is its insistence that the Nigerian society and indeed Government was not corrupt and the ensuing fatal lapse to vigorously engage the forces of corruption and vanquish them. Today, Government, commendably is fighting corruption, however, most of the battle is directed at historical and antiquated cases of corruption in the governance of yester years. This is not a bad thing but is Government suggesting that today’s political actors are not corrupt. All the evidence and indices point to the contrary. It is not until you catch a man’s hands in the till before you declare him corrupt; corruption is rife when money is voted for a project and released and the project is not executed or is obscured or obfuscated in a mass of bureaucratic red-tape. Corruption is visible when government fails or refuses to deliver on its promises.
The Nigerian Judiciary has come under severe blame for not sufficiently assisting Government in fighting corruption and for being corrupt. Consequent upon this backdrop, Government through its Department of State Services desecrated the Temple of Justice by invading the privacy of Judicial Officers in the dead of the night, ostensibly to nip corruption in the bud. There has been so much argument on the pros and con of the actions of the executive in this regard and the preponderance of views is that the events in issue was an undisguised attack on the independence of the Judiciary. We will deal with this issue in greater light in due course. Consequently, in the sub-heads that follow, the Foundation wishes to place on record its position on certain topical matters as it affects the wellbeing of Nigerians and Nigeria.
THE NIGERIAN JUDICIARY
Charity it is said begins at home; for us, i.e. the Foundation, it is important to voice our concerns on the happenings in the Judiciary and in the Justice Sector. We shall begin with the appointment of an Acting Chief Justice of Nigeria rather than a substantive CJN. It is unprecedented and downright unhealthy to appoint in an acting capacity the Chief Justice of Nigeria, when the National Judicial Council has recommended the same candidate for appointment in a substantive capacity. The procedure the appointment of such high judicial officers is clearly stated in section 231-(1) of the Constitution of the Federal Republic of Nigeria which provides thus: ‘The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to the confirmation of such appointment by the Senate’. From the available facts NJC has recommended the Hon: Justice Walter Onnoghen as the substantive Chief Justice of Nigeria. For undisclosed reasons, the President of the Federal Republic of Nigeria has refused or omitted to make the appointment in question instead he has appointed the Hon Justice Onnoghen in an acting capacity. It ought to be known that the appointment of a CJN is not the exclusive preserve of the executive arm of Government. It is a tripartite arrangement, which involves the Judiciary acting through the NJC by way of recommendation, the executive through the President by way of appointment and the legislature by way of confirmation of the said appointment. Consequently, we are greatly distressed that the Executive is carrying on as if it is the overlord of the other arms of Government that has the sole prerogative of the appointment of a Chief Justice of Nigeria. Indeed, from the tenor of the Nigerian Constitution the role of the executive in the said appointment is a mere formality. The critical work in looking for a suitable candidate is engaged in by the Candidates’ peers i.e. the NJC and it is that exalted body that does the weeding and pruning of the candidates in issue. Having concluded that serious assignment, the selected candidate is sent to the President, who in the absence of any fundamental negating factor must appoint the recommended candidate as Chief Justice of Nigeria. Indeed, the most important contributor to the process after the NJC is the Senate (Legislature) which must conduct a public confirmation hearing before the appointment takes effect. The effect of that confirmation process is that the whole of Nigeria through their elected representative participate in the appointment process.
The question that now arises is why the President (executive arm) will refuse or omit to act on the recommendation of the NJC and instead chose to appoint the NJC nominee in an acting capacity. If he is not good for the substantive office why is he then good to act for 3 months in the same capacity? After all, it is the same security report on the suitability of the candidate that is relied upon by the NJC that the Presidency relies on too. We have heard too many rumours on why the appointment is in acting capacity only, we hope that they are not true. Every Nigerian regardless of his place of origin is entitled to occupy the office of Chief Justice of Nigeria so long as he or she meets the required criteria and there is no blemish on his record. Government must put an end to all the rumours by concluding the process of the appointment of the Chief Justice of Nigeria forthwith.
Flowing from the above, we advise all judges to remain resolute and committed to the course of justice by adhering strictly to their oaths of office. An examination of the judicial oath of office and oath of allegiance to the Federal Republic of Nigeria shows that it does not include taking instruction from the President and/or his agents or Governors and/or their agents. In most cases the wishes and desires of the executive arm of Government in judicial matters are selfish and contrary to the aims and aspiration of the Federal Republic of Nigeria. No Judge needs to reassure the executive that it is willing to work with it in the fight against anti-corruption as it is implicit in the remit of the judiciary that it is to use to administration of justice in such a way as to frustrate the growth and or spread of corruption as a national vice. Indeed, giving the executive assurances of cooperation is an admission that hitherto the Judiciary has been uncooperative in the fight against corruption. The Judiciary is an independent arm of Government. It must conduct its business in such manner even if the risk is that some members would lose their offices unjustly and unjustifiably. No sacrifice is too great for the interest of justice.
THE WAR AGAINST CORRUPTION
President Muhammadu Buhari GCFR rode into power on the wings of anti-corruption crusade. Corruption and fraudulent acts have plagued this nation prior to and since independence in 1960. Our leaders have engaged in divide and rule i.e. ethnicity and religion in the main, to line their pockets and make substantial profits and dividends from their purported service to the people which gave them access to the nation’s treasury. In the Foundation’s estimation, the Goodluck Administration was exceedingly populated by corrupt public officials, who did not care a hoot about the effect of their actions. Non the less the said Administration was able to make outstanding achievements in the economy and in particular infrastructural development. Notwithstanding the foregoing, it was still expected of President Buhari to live up to his promise; in that light, he made the EFCC as his arrow head in the fight against corruption and appointed and establishment figure in the Police and EFCC one Mr Magu as the Ag. Chairman of the EFCC. An appointment that requires the confirmation of the Senate.
On Thursday December 15th, 2016, the Senate of the Federal Republic of Nigeria held an executive session during which it rejected the nomination of Mr. Ibrahim Magu as the Chairman of the Economic and Financial Crimes Commission (EFCC) by President Muhammadu Buhari based on an adverse “security report” authorised by the State Security Service (SSS). This was after extensive hearing at Committee stage. Unsurprisingly, this action generated debate within the country centred around the question of what the status of Mr. Ibrahim Magu is and whether the rejection by the Senate does not have any legal effect on his status as Ag. Chairman? The statutory provision for the appointment of the EFCC Chairman is found in Section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act Cap. E17 LFN, 2004 which states: “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.”
There is no doubt that the appointment of the EFCC Chairman is not only within the purview of the President but is subject to the confirmation of the Senate. What this means is that the rejection by the Senate of the nomination of Mr. Ibrahim Magu automatically ends his role within the EFCC. In its rejection of the nomination the Senate committee held that; ‘The nomination of Ibrahim Magu is hereby rejected and has been returned to the President for further action.’ What this statement suggests is that the next step as to the future of the EFCC is left to the discretion of the President, he can of course choose to re-nominate Mr. Ibrahim Magu for confirmation or go for a different nominee for the position. What are those next steps especially as it relates to Mr. Ibrahim Magu and his possible position at the EFCC? It has been argued as stated above that he can legally continue in his positon as the Acting Chairman of the EFCC regardless of his rejection by the Senate. Eminent commentators such as Professor Sagay have argued that the President should ignore the decision of Senate. At the point this letter was received by the Senate, Section 2(3) of the EFCC Act was triggered and there is therefore no lacuna for any law including the Interpretation Act to correct. His formal nomination to the office of Chairman of the EFCC automatically nullified his positon as Acting Chairman of same immediately he was rejected as a nominee for the Chairmanship. Consequently, the sojourn of Mr Magu at the EFCC has come to an end.
However, the debate has thrown up issues of serious national concern; firstly, no subterfuge or contrivance such as the application of strange principles of law purportedly empowering the President to retain Mr Magu in an acting capacity in the face of his rejection by the Legislature. Secondly commentators who are beneficiaries of Magu’s structure ought not to argue against the tenor of the supremacy of the Nigerian Constitution. This is because it is the Constitution that gave the Legislature the power to confirm the candidacy of Magu that gave the President the power to nominate him as Chairman of EFCC. The process of appointment is therefore in 2 stages, nomination and confirmation. They are handled by separate arms of Government. One arm cannot dictate supremacy to the other as that will amount to a brazen infraction of the Constitution. The suggestion by some professorial delinquents that the President should ride roughshod over the will of the Senate amounts to gross irresponsibility and anarchistic in outlook. Persons who have nothing useful to contribute to the future of this potentially great country should hold their peace rather than creating constitutional confusion and anarchy. Finally, on this point, it is important to reiterate that our Constitution is built on the principles of the Separation of Powers. Every student of elementary Government as a subject understands the scope and extent of this hallowed principle. It was not enshrined in our Constitution by our founding fathers as a matter of fancy or triviality. It is the hallmark of checks and balances specifically enacted to prevent dictatorship and impunity. Every leader must embrace its limitations else we stand the risk as a nation to slide into chaos and confusion. President Buhari GCFR must consider the Magu experiment as a failure and treat the file as closed. There are better materials in the system that can run the EFCC within the ambit of the Rule of Law and make a success story of the establishment. The way corruption is fought is more important than the fight against corruption itself. If corruption is fought with wicked, impure, callous and sadistic measures or procedures, we run the risk of creating tin-gods and the fight itself will be in breach of citizen’s fundamental rights as guaranteed by the 1999 Constitution.
CONCLUSION
We need to conclude that any Government leading a great and prosperous nation such as Nigeria must be prepared to broach contrary opinion. Such contrary views, if at all they are so considered are the product of our individual rights of the freedom of expression guaranteed by our Constitution. It has been said that the Constitution does not mean much to a great number of our leaders but they must realise that the power they enjoy today was donated by the Constitution. Our democracy can only inure if we obey the Constitution and stand steadfastly by its letter and spirit. Failure to do so will lead to anarchy, doom and destruction. As the year ends, Government is implored to understand that the livelihood of Nigerians is worse off than they met it. Nigerians are prepared to work with this Administration as it approaches half time to restore the lost glory of the nation. The Foundation wishes our leaders and those of us the led a very merry Christmas and a Happy New Year.
Joseph Bodunrin Daudu SAN
Co-ordinator Rule of Law Development Foundation.
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