The seeming battle of supremacy between Nigeria’s executive and legislative arms of government may soon fall to the judicial arm for settlement.
Feelers emanating from the presidency indicate that the executive may soon approach the judiciary to interpret its powers in the ongoing face off with the members of the executive.
The face off between both arms was triggered with the refusal of the Senate twice to confirm the appointment of the acting chairman of the EFCC, Mr Ibrahim Magu.
The Senate had based its refusal to confirm Magu on a report forwarded to it by the Department of State Security (DSS) alleging corrupt practices by Magu.
The legislators consequently called on the presidency to sack Magu, but the executive has however refused to do that, drawing the ire of the lawmakers who threatened not to approve list of nominees sent by the presidency for approval.
Sources within the presidency have revealed that the federal government may soon approach the Supreme Court to determine if Section 171 of the constitution empowers it to make appointments without recuse to the legislators.
The source stated that the federal government has received a judicial advisory from its legal team, on its presidential powers on appointments based on Section 171, and that although it is the view of the Presidency that certain federal appointments should not require the confirmation of the Senate, the Muhammadu Buhari administration has continued to send such appointments to the Senate pending the ultimate judicial interpretation of the matter.
According to him, the position 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.
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He stated that 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 source, an official of the presidency who pleaded anonymity argued that it is not accurate to say the FG or the presidency has started to act unilaterally on its own interpretation of Section 171.
“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.”
According to the source, the conclusion of the legal advisory on the matter is that a judicial pronouncement preferably by the Supreme Court is what will settle the matter.
The legal advisory he said, posited that “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.”
It would be recalled that this particular nomination was presented four times in 18 months before it was eventually confirmed by the Senate.
Th 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.”
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