…Seeks judicial interpretation to end executive-legislative rift
Following the raging controversy on whether the executive has powers to make certain appointments without the consent of the Senate, the Presidency, on Sunday, insisted that the upper house of the National Assembly does not need to give its approval to certain appointments.
According to an official who pleaded anonymity in the Presidency, the Presidency believes that Section 171 is clear that certain appointments do not require Senate consent.
The source said, “the Presidency is not already behaving as if its interpretation of the law has become a policy.”
It would be recalled that Acting President Yemi Osinbajo had spoken in support of some lawyers in the country that the Acting Chairman of the EFCC, Ibrahim Magu, does not need Senate’s approval to function as the head of the agency. The remark by Osinbajo irked the National Assembly, prompting the Senate to discontinue its screening exercise for some nominees of the executive.
Reacting the source at the Presidential Villa said: “The Presidency is persuaded that its interpretation is the correct one, but we are conscious and aware of the fact that only a proper judicial ruling on the matter would make it a settled policy that sits right with the rule of law. That is why we have not stopped sending all manners of nominations to the Senate, most of which the Senate has actually confirmed, even well after the Acting President spoke.
It stressed that a judicial pronouncement preferably by the Supreme Court is what will settle the matter.
The source said: ” Although it is the view of the Presidency that certain federal appointments should not require the confirmation of the Senate based on Section 171 of the Nigerian Constitution, the Buhari administration has continued to send such appointments to the Senate pending the ultimate judicial interpretation of the matter, legal sources in the Federal Government explained last night.
“This is based on a legal advisory prepared by judicial and legal experts as a working document in the presidency regarding the differences in the constitutional interpretations on matters of certain federal appointments.
” In fact, the advisory unearthed a ruling of the Supreme Court on the matter where the current Chief Justice of the Federation, before his elevation as CJN had ruled in line with the view of the presidency on the matter.”
The official said that it would not be accurate to say the FG or the Presidency has started to act unilaterally on its own interpretation of Section 171.
“This is because, even after the Acting President, (who spoke when he was Vice President in support of the view of some leading lawyers) the Presidency has continued to send nominations to the Senate both while the President himself was around and while away by the Acting President.
“Since the time the Acting President spoke and when Senate recently expressed its disagreement, we have been sending nominations severally including into the INEC and other boards and commissions. So we are clearly not acting unilaterally based on our own interpretation of the law, even though we believe firmly we are right,” the source said.
It said: “The divergent positions being held by the Executive and the Legislature on the subject of confirmation …is one that requires timely and ultimate resolution. Such resolution could only be reached through the judicial process…Such interpretation would lay to rest the lingering crises between the two arms.”
Concerning the issue of the Acting EFCC Chairman, it explained that the legal advisory also concluded that “the rumblings in the discourse on the confirmation of the EFCC Chairman have more to do with politics than with the law.”
“The advisory which affirms the powers of the President to appoint an acting capacity into positions such as the EFCC chairmanship, also notes that “in the recent past, the ministerial nomination of Late Prof. Abraham Babalola Borishade (Ekiti State) by President Olusegun Obasanjo was rejected repeatedly by the Senate.” In fact, it would be recalled that this particular nomination was presented four times in 18 months before it was eventually confirmed by the Senate.
“This position is because of the long established and entrenched principle of law that any legislation that is inconsistent with the provision of the Constitution is null and void and of no effect whatsoever to the extent of such inconsistency. (See the Supreme Court cases of DR. OLUBUKOLA ABUBAKAR SARAKI v. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40013 (SC) and CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR-40053 (SC).
” In the case CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (Supra), Walter Samuel Nkanu Onnoghen, who today is the Chief Justice of the Federation, held, at page 19, paragraph C that –
“The time honoured principle of law is that wherever and whenever the Constitution speaks any provision of an Act/Statute, on the same subject matter, must remain silent.”
“It is trite that, by the rule of jus dem generis, any office to which Section 171 or other Sections of the Constitution do not confer on the Senate the power of confirmation of appointment to such office cannot be imported and accorded equal footing as the mentioned offices,” the source said.
‘It is disingenuous to accuse everyone who calls for restructuring as trying to break up the county. History tells us that that kind of cheap blackmail will not work as long as the underlying reasons for the agitations persist.’
‘The biggest challenge seems to be that we seem to be allowing moderate voices on this issue to be drowned out by the reckless utterances of a few rabble rousers on all sides who may be tools in the hands of those who do not wish this country well. These are some of the people who arrogate to themselves the toga of spokespersons of our diverse groups.’
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