Section 171: Presidency approaches Supreme Court for interpretation
*Magu: Has more to do with politics than with the law
Notwithstanding the position of 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 have explained.
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.
An official of the presidency who pleaded anonymity disclosed that it is not 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.”
Said the source: “Here is the point, the presidency believes that Section 171 is clear that certain appointments do not require Senate consent, but the presidency is not already behaving as if it’s interpretation of the law has become a policy.”
Continued the source, “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.”
In fact the conclusion of the legal advisory on the matter is very clear that a judicial pronouncement preferably by the Supreme Court is what will settle the matter. According to that legal advisory “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 judicial process…Such interpretation would lay to rest the lingering crises between the two arms.”
Concerning the issue of the Acting EFCC Chairman, the legal advisory also concluded that “the rumblings in the discourse on the confirmation of the EFCC Chairman have more to do with politics that with the law.”
The advisory which affirms the powers of the President to appoint in 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.
The advisory continued: “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.”
For clarity and comprehension, and without limit to relevance, Section 171, in full length, is hereunder reproduced verbatim –
“(1)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.
(2)The offices to which this section applies are, namely—
(a)Secretary to the Government of the Federation;
(b)Head of Civil Service of the Federation;
(c)Ambassador, High Commissioner or other Principal Representatives of Nigeria abroad;
(d)Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of Government of the Federation, howsoever designated; and
(e)any office on the personal staff of the President.
(3)An appointment to the office of the Head of the Civil Service of the Federation shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of the Federation or of a State.
(4)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.
(5)In exercising his powers of appointment under this section, the President shall have regard to the federal character of Nigeria and the need to promote national unity.
(6)Any appointment made pursuant to the paragraphs (a) and (e) of sub-section (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office:
Provided that when a person has been appointed from a public service of the Federation or a State, he shall return to the public service of the Federation or of the State when the President ceases to hold office.”
According to the legal advisory, “it is trite that, by the rule of ejusdem 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.”