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 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 explained last night.
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
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
official of the presidency who pleaded anonymity disclosed Sunday
that it is not accurate to say the FG or the presidency has started
to act unilaterally on its own interpretation of Section 171.
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
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
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."
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."
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."
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."
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
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 -
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."
clarity and comprehension, and without limit to relevance, Section
171, in full length, is hereunder reproduced verbatim –
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.
offices to which this section applies are, namely—
to the Government of the Federation;
of Civil Service of the Federation;
High Commissioner or other Principal Representatives of Nigeria
Secretary in any Ministry or Head of any Extra-Ministerial Department
of Government of the Federation, howsoever designated; and
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
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.
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.
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:
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.”
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."