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Is confirmation of executive appointment by Senate inconsistent with section 171 of 1999 constitution? Lawyers say no

Former director general of Nigeria Institute of Advanced Legal Studies (NIALS), Prof. Epiphany Azinge

The supremacy battle between the Executive and the National Assembly over the confirmation of certain executive appointments appears intractable. As it is, many are of the view that only judicial intervention would possibly resolve the logjam because both parties and their supporters refer to some sections of the constitution in their arguments.

The mostly referred sections are 1(1) and (3) of the 1999 constitution (as amended) and section 171(1) (2) of the same constitution, in addition to section 2(3) of the Economic and Financial Crimes Commission (EFCC) establishment Act 2004.

Section 1(1) (3) talks about the supremacy of the constitution. It says: “If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

Section 171(1) (2) says the 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. It went further to provide in subsection 2, the offices to which this section applies.

For purposes of clarity, the EFCC is not mentioned in subsection 2 referred above.

Interestingly, section 2(3) of the EFCC act provides that: “The chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to confirmation of the Senate.”

Consequently, proponents of the non-confirmation theory are asking if it would be better for the executive to simply ask the Supreme Court to declare section 2(3) of the EFCC act as inconsistent with the constitution, therefore null, void and ultra vires.

Dissecting the arguments about the possibility of getting judicial pronouncement on the issue,
former director general of the Nigeria Institute of Advanced Legal Studies (NIALS), Prof. Epiphany Azinge (SAN) said the Supremacy of the constitution as enshrined in sections 1 (1) of the constitution is not debatable.

“What we must be careful not to misconstrue, is the provision of section 1 (3) of the Constitution, which states that any law inconsistent with the provisions of the Constitution is null and void. Note that the emphasis is on the world ‘inconsistent’ and not ‘further elucidation on what is in existence.’

“Before addressing the import of section 171, with regards to section 2 (3) of the EFCC Act, permit me to highlight other Constitutional provisions on the need for confirmation by senate of appointment by the President.

“Section 147 is clear on appointment of a Minister. So also is section 231 on appointment of Chief Justice of Nigeria and Justices of the Supreme Court, section 238 on appointment of Justices of the Court of Appeal.

“However sections 153 and 154 give a greater insight as regards appointments that require confirmation of the senate before assumption of office. They include, Code of Conduct, Council of State, Federal Character Commission; Federal Civil Service Commission; Federal Judicial Service Commission; Independent National Electoral Commission; National Defence Council, National Economic Council, National Judicial Council, National Population Commission; National Security Council; Nigeria Police Council, Police Service Commission; Revenue Mobilisation Allocation and Fiscal Commission,” he stated.

Azinge explained that sections 154 (2), specifically provides that in exercising his powers to appoint  a person as Chairman or member of the Council of State, the National Defence Council, or the National Security Council, the President shall not be required to obtain the confirmation of the Senate.

As regards Section 154 (3), he said the President can appoint a person as Chairman or member of the Independent National Electoral Commission; the National Judicial Service Council, the Federal Judicial Service Commission or the National Population Commission in consultation with the Council of State.

His words: “In relation to section 171 of the Constitution, it is instructive to note that the provision is specifically tied to the offices expressly mentioned and cannot by any stretch of imaginations be extended to offices not mentioned. The provision of section 171 (1) (e) which states: “Any offices of the personal staff of the President” is equally restrictive as personal staff in this aid refers to aides of the President (including domestic staff) e.g. Chief of Staff, Principal Secretary, Media Advisers etc. The legal maxim of express mention of one thing is to the exclusion of others must be invoked here. So offices not mentioned are therefore excluded in this context.

“In addressing section 2 (3) of the EFCC Act, a historical voyage of discovery is imperative. Firstly, is that the Constitution came into force in 1999, whilst the EFFC Act, was promulgated in 2004. Since the Constitution predates the Act, there is no way the constitution would be amended to specifically accommodate the office of the chairman of the EFCC.”

He noted also that many other organizations that were not created or mentioned by the Constitution are caught up in that statutory elucidation, adding a good example is the NDDC Chairman and its board members.

“It is therefore, my considered position that section 2 (3) of the EFCC Act, is not in any way inconsistent with section 1 (1) (3) of the Constitution. Its coming into force in 2004 cannot be seen as antithetical to the Constitution. It rather reinforces the intent of the founders of the Constitution to allow the people have a say (through the Senate) in the appointment of members of strategic Federal Executive Agencies.

“Lastly, section 171, is not an omnibus provision which can be extrapolated at convenience. It only refers to specific offices and to that extent, does not lie at the whims and caprices of the President to invoke for any other office not specifically mentioned in section 171,” he declared.

Abuja based Senior Advocate of Nigeria, Chief Ferdinand Orbih said all the relevant sections of the Constitution should not be read in isolation. “Constitution must be read together as a whole. There is no conflict at all between the EFCC act and the Constitution. If you hold the view that if an Act of the National Assembly provides for confirmation of appointment, then it is in conflict with the Constitution, the question then is: which section of the Constitution is it in conflict with?

“The fact that a law provides for confirmation of the Senate for an officer’s appointment where there is no such provision doesn’t make such a law unconstitutional. That argument will certainly not fly. It will only be valid if every statutory provision that is not in the Constitution is automatically in conflict with it and therefore null and void,” he insisted.

Orbih argued that that line of reasoning will be untenable because the Constitution, which is the grundnorm cannot provide for every type of situation. “If it were to do so, it would have been too voluminous and unwieldy. Therefore, I do not see Section 2 (3) of the EFCC Act as being in conflict with the Constitution. I rather see the section and similar sections in other Acts of the National Assembly requiring confirmation of appointment where the Constitution does not provide for it, as being in complete alignment or complementary to the provisions of the Constitution,” he maintained.

In his own intervention, a lawyer, Solomon Ukhuegbe pointed out that the suit, if filed would be within the original jurisdiction of the Supreme Court.

His words: “The suit will be within the original jurisdiction of the Supreme Court by virtue of section 232(2) of the Constitution and section 1 of the Supreme Court (Additional Original Jurisdiction) Act 2002. There is a live issue which (involves any question, whether of law or fact, on which the existence or extent of a legal right depends) to be decided by the Court since the Senate has exercised its purported statutory power to reject Mr. Ibrahim Magu, which power the President claims is contrary to section 171 and therefore void.

According to him, the Supreme Court will have the opportunity to settle a constitutional matter of the highest significance – the Separation of Powers under our presidential constitution.

He noted that this has become necessary because the National Assembly has clearly demonstrated the practice of including a requirement of confirmation for chief executive and board members of almost every statutory agency established by its Act and not only the EFCC Act.

Ukhuegbe however, said he would not like to speculate as to the correct interpretation of section 171 of the 1999 constitution.

However, a Lagos based lawyer, Bankole Kayode said the provisions of section 1(1) and (3) of the constitution is unambiguous because the constitution is the Supreme Law of the land.   However, he stated that whether the provisions of section 2(3) of the EFCC Act is inconsistent with that of section 171(1)(2) will depend on the definition given by the court concerning the EFCC as an Extra Ministerial body.

“If the court defines it as an Extra Ministerial body (as is my take) then, the appointment of any EFCC official does not require any input from the Senate,” he pointing out, arguing that the case will have to be filed at the Federal High Court and not the Supreme Court as is being widely believed.



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