The 2nd Vice-President of Nigerian Bar Association, NBA Mr. Monday Ubani has asked the Federal Government to reconsider its position on Mr. Ibrahim Magu in the light of the recent court pronouncement which held that the appointment of the Chairman of the Economic and Financial Crimes Commission, EFCC is dependent on confirmation by the Senate.
Ubani, in a statement on Monday, insisted that in view of Justice John Tsoho’s pronouncement, the current acting chairman of EFCC, Magu may not remain in office since the Nigerian Senate has refused to confirm him as substantive chairman of the commission .
Delivering judgment in the suit filed by one Oluwatosin Ojaomo, Justice Tsoho held that the nomination of any person for the office of EFCC Chairman, is “subject” to the ratification by the Senate.
The judge further interpreted the word “subject to” as used in the Act to mean “depending on”.
He further said “The Senate is thus conferred with authority to ensure the choice of only suitable and credible persons for the appointment to that office. The submission of the plaintiff however gives the impression that the senate only exists to rubber stamp the President’s appointment of a chairman. Such view runs counter to the proper intendment of Section 2(3) of the EFCC Act 2004 and is misconceived.”
The judge after making the pronouncement however surprisingly struck out the matter for lack of locus on the part of the Plaintiff.
Speaking on the issue which has been generating a lot of controversy, Ubani who is an ardent supporter of President Muhammadu Buhari and Ibrahim Magu stated that Justice Tsoho’s pronouncement remains the law on the issue of Magu’s fate as EFCC Chairman until any other superior court says to the contrary.
He pointed out that the fact that the matter was struck out does not in any way nullify the pronouncement of the court.
“It is important to point out that despite the fact that the matter was struck out by the judge on the issue of locus, the court reached a decision on the issue referred to it for determination and the ratio of that decision is that the appointment of Magu as Chairman of EFCC is subject to confirmation by the Senate and confirmation implies whether acceptance or rejection”.
“This decision can be upheld and affirmed or reversed on appeal but until it is reversed, it remains the decision of the court today in Nigeria,” he said.
Ubani however queried the decision of the judge on the issue of locus, but commended him for adopting the judicial practice commonly applied by most judges on similar issues before them.
“The practice adopted by our judges nowadays is to decide the entire case on its merits as well as rule on the issue of jurisdiction leaving it for the appellate courts to correct if they are wrong both on their decisions on substantive matter and on jurisdiction”.
“By that practice the courts in Nigeria are actually being sensitive to the desire of Nigerians to hasten the course of justice in our country rather than the perennial delay of trials and proceedings that have been our lot and which has given our judiciary bad reputation”.
“Surprisingly it is our activists who ordinarily have been lamenting on the delays in our judicial system are the ones deploring this procedure, and I cannot understand why it is so. It is indeed a good procedure that should attract commendation from those who desire quicker dispensation of justice in our nation”.
“It is sad that Justice Tsoho was of the view that a “lawyer” who ordinarily should stand for due process and upholding of the rule of law does not have “locus” to initiate a public interest matter that touches on the interpretation of our constitution and an enactment of our legislature. The matter is on appeal and we hope that this decision will be looked into critically and a position reached which makes room for liberal legal policy in the matter of “locus” on public interest litigation”.
Ubani went on to advice government on the possible option available to it where it appears that the country’s legislators have possibly acted not in the best interest of the country in rejecting a suitably qualified candidate for public office.
‘In view of the peculiar situation, this government finds itself, my advice is this: A written protest from the president to the legislators with a possible replacement. Examples abound in American history where Presidents like Presidents Washington, Andrew Johnson, Bush and even Obama had their nominees rejected by the Senate. They replaced those nominees with protest letters to the legislators.
“Seek for a judicial interpretation if the Executive feels strongly that the legislators have acted way above their powers (ultra vires) in rejecting the nominees, at least we saw it in the recent case of Mr Oluwatosin Ojaomo, a lawyer whose case before the Federal High Court had prompted this discussion.
“And finally seek patriotic and alert electorates who will use their voting power to chase out of the legislative chambers those they consider as “less patriotic legislators” whose stomach is their God and who do not consider national interest in carrying out their sacred national duties.
“The above is what the country and its citizens can do if they are unlucky to be “blessed” with less patriotic legislators.
Ubani warned that the country and its citizens should not call for disobedience to the institutions created by law, including insisting on disobedience to the rule of law which is an invitation to anarchy and destruction of a settled system that is not healthy for the country.
“This should not be the route to contemplate especially in a democracy”, he concluded.