Indications have emerged that the federal government is awaiting the judicial interpretation of section 171 on presidential powers on appointments.
The government is seeking the review because of the previous rulings which were relevant to the issue of appointments and Senate’s confirmations.
According to previous rulings of the Chief Justice of Nigeria, “wherever and whenever the Constitution speaks, any provision of an Act/Statute, on the same subject matter, must remain silent.”
In spite of the clarity of the position of the law, the present administration continued to send nominations to the senate.
The present position of government to seek another clarification once and for all was sparked by Senate’s insistence that it would not nomination of Mr. Ibrahim Magu as the substantive Chairman of the Economic and Financial Crime Commission (EFCC).
The logjam has forced the current government to seek Supreme Court’s review in order to throw more light on the role of the senate on appointments.
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 administration has continued to send such appointments to the Senate.
The action of the present administration had been on 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.
An official of the presidency who pleaded anonymity disclosed on Sunday that it is not accurate to say the government 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: “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.”
“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. ‘’
“The divergent positions being held by the Executive and the Legislature on the subject of confirmation …is one that requires timely and ultimate resolution,’’ says the legal advisory.
Such resolution could only be reached through judicial process and this would lay to rest, the lingering crises between the two arms.
“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.
Reference was made to 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).
Also in the case of CHIEF ISAAC EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (Supra), in which Justice Walter Samuel Nkanu Onnoghen, the current Chief Justice of the Federation, ruled,
At page 19, paragraph C, he ruled: “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.”
Therefore Section 171 of the constitution states: “(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.
Section 2 states the offices to which this section applies are
(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.”