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Division Threatens New Anti-corruption Policy

Magu: AGF Malami Disowns Osinbajo for Saying Senate Has No Powers of Confirmation. Source: Signal.

This material belongs to: This Day.

The disagreement within the executive will make the implementation of the new anti-corruption policy difficult, ‎writes Tobi Soniyi

On the day the Federal Government’s new Anti-corruption policy was approved by the Federal Executive Council, a series of events happened that may have implication for the implementation of the policy.‎

The reaction of the Attorney General of the Federation and Minister for Justice, Malami, SAN to the Senate’s demand for the removal of the Acting Chairman of the Economic and Financial Crimes Commission, Ibrahim Magu, shows that something was not right among those whose responsibility it is to implement the policy.

For those not following this development, and for ease of reference, it suffices to quote the Honourable Attorney General’s response to a question on FEC’s position on the face-off between the National Assembly and the Executive over the latter’s decision to retain Magu after the former had rejected his nomination.

“The fundamental consideration about the alleged statement is the fact that at no point ever did the Federal Executive Council sit down to arrive at the decision in one way or the other as far as the issue of nomination or otherwise is concerned. So I do not think it constitutes an issue for the Federal Executive Council to make any clarification about because it has never been considered by the FEC. So the minister of information will throw more light on the matter.”

Some section of the media interpreted this to mean that FEC distanced itself from the position taken by the Acting President, Yemi Osinbajo that Magu’s appointment needed not be confirmed by the Senate to be valid. However, as rightly refuted by the learned Attorney General, that could not have been what he said. In a statement personally signed by him and issued the next day Malami said:

“It has come to my notice that a number of media organisations have been distorting and mis-reporting the proceedings of yesterday’s (July 5, 2017) Federal Executive Council (FEC) press briefing, and suggesting that the Presidency ‘disowned’ the Acting President on a matter relating to a presidential nomination.

As the Chief Law Officer of the Federation, I would like to make it categorically clear that:

1. The President – and in this case the Acting President – is the Presidency, and therefore cannot be disowned by the Presidency.

2. All matters relating to Presidential Appointments and Nominations are strictly a matter for the Presidency to handle. They are not for the Federal Executive Council, and are therefore not discussed at FEC level. This was the point I made yesterday at the press briefing, and which was unfortunately distorted by the media.”

‎This is an unnecessary digression from the main issue since, one, Malami does not speak for FEC and two, the issue was not a decision for FEC to take.

Nevertheless, inside sources said that the justice minister felt let down by the way the issue of section 171 was smuggled into Magu’s appointment. A little digging into the background will explain why the minister, in our views, was entitled to feel slighted.

Lagos lawyer, Mr Femi Falana, SAN was the first to say that the Presidency was not properly advised on the procedure it followed on the appointment of Magu.

According to him, instead of appointing him under the EFCC Act, the president should have made the appointment under section 17I of the Constitution which, he argued would not have subjected the appointment to a confirmation by the Senate. Few days later, Osinbajo adopted the same position. The question is, whose job is it to advise the president on Magu’s appointment? Obviously, it is the AGF’s. By publicly admitting that the Presidency was not properly advised, Osinabjo, by implication, appeared to have faulted the judgment of the AGF. While Falana can be forgiven, the same can not be said of the Acting President. The AGF must certainly have an issue with that. He appeared to have expressed his frustration with the position taken by the Acting President. As at today, the AGF has not publicly endorsed the Acting President’s position that it was a mistake to have placed reliance on the EFCC Act in Magu’s appointment. No one knows for sure what the position of the nation’s Chief Law Officer is on this controversial issue.

Assuming the Acting President was right in admitting that Magu should have been appointed under section 171 of the constitution, the proper position to take is to admit that it was a collective error and then allow Malami to go to town with the correct position. Perhaps, this approach would have reduced the tension created by the issue.

It is obvious that a ‘consensus ad dem’ is lacking with respect to the issue. This obviously has implication for the implementation of the new Anti-corruption Policy. There will be no unity of purpose. Implementing the policy is going to prove difficult. Magu, for no fault of his, appears to be in limbo. The AGF is obviously not in agreement with the Acting President. How on earth are we going to get the policy implemented when those whose responsibility to implement it are at loggerheads?

Another issue that deserves attention is whether the president having written to the Senate asking for Magu to be confirmed can suddenly change his mid up and assume that the appointment was made under section 171 of the Constitution? It does not appear that the Presidency acted in good faith when it made a u-turn and claimed that the appointment was based on section 171 of the constitution. First, it should have written to the Senate to say that it made a mistake in sending Magu’s appointment for confirmation in the first instance and that having realised the mistake, has decided to appoint him under Section 171 of the constitution which does not require the Senate’s involvement. The Senate may not be satisfied with this explanation, but the Presidency would have made its position clearer and would no longer be seen to be holding the Senate in contempt.

However, it must be stated that there are divergent views on whether the appointment can be made under section 171 of the constitution. The proper place to determine this, however, is the court. There is a red for judicial interpretation to settle the matter one way or the other. Both the Senate and the Presidency can not be judges in their own case. Until, a court of law decides, we may never know who is wrong or right between the two institutions. There are strong arguments in support of the two positions.

The Presidential Advisory Committee Against Corruption lately also appeared to have issues with the AGF. After members of the committee made comments doubting the commitment of the AGF to the anti-corruption war, Malami was forced to issue a statement. He expressed disappointment with PACAC and reaffirmed his commitment to the corruption war. He said: “I am saddened and flummoxed at the attempt to cast aspersion on my integrity, dedication and commitment to the war against corruption which undoubtedly is the major cornerstones of the present administration.”

Yet PACAC, the AGF and the Acting President ought to be on the same page as far as the war against corruption is concerned. The reality is that they are not and that is going to make implementing the anti-corruption strategy a difficult task.

According to the AGF, the anti corruption strategy will strengthen the enforcement and sanctions.

He said: “So arising from this understanding Ministries, Department, Agencies, Legislature, Judiciary, Civil Society group and Religious Bodies have all come together at a forum and developed a National Anti-Corruption Strategy which is intended to be a guide or a road map for the enhancement and Sanctions, processes associated with Anti Corruption.

“That policy has now been developed by al these components and was today presented to FEC for approval.

“Incidentally FEC approved the strategy and the the roadmap is now that of implementation of the strategy towards the direction of collective buy in as it relates to enforcement and sanctions relating to anti corruption crusade and drive.”

Yet PACAC, the AGF and the Acting President ought to be on the same page as far as the war against corruption is concerned. The reality is that they are not and that is going to make implementing the anti-corruption strategy a difficult task.