‘Personal rule’ is the system of government in Nigeria, not constitutional democracy… Prof Ben Nwabuez
Buhari, Osinbajo liable for misdemeanours committed by Magu
ELDER statesman and eminent lawyer, Prof Ben Nwabueze, has said the system of government that is being practised in Nigeria is ‘personal rule’, rather than constitutional democracy.
Nwabueze made the assertion in an article he authoured. The write-up was titled ‘We’ve abandoned constitutional democracy for personal rule’.
The constitutional lawyer, in the piece, which was published in some national dailies on Tuesday, November 17, examined the state of the nation, how Nigeria’s constitution is being subverted, and ways to deepen democracy in the country.
He cited President Muhammadu Buhari’s continued retention of former acting chairman of the Economic and Financial Crimes Commission, Ibrahim Magu, despite the Senate’s refusal to confirm his appointment, as a ‘gross manifestation of personal rule’.
Magu headed the EFCC for a period of about five years until his suspension on July 7, 2020, despite never being confirmed by the Senate.
Nwabueze noted that in keeping Magu in office without Senate confirmation, Buhari flouted the provisions of Section 2(3) of the EFCC Act which stated that “The Chairman and members of the Commission other than ex officio members shall be appointed by the President and the appointment shall be subject to confirmation of the Senate.”
Stressing that Magu’s tenure as EFCC chairman was illegal, Nwabueze said, “Magu was in fact kept as EFCC acting chairman for four and half years without Senate confirmation; his tenure of the office for those years is illegal, a gross manifestation of personal rule”.
Magu’s appointment was twice rejected by the Senate, reportedly based on a critical report by the Department of State Service (DSS) which impugned his credentials as a person unfit for the position of EFCC chairman.
Making further reference to the development, Nwabueze noted, “Instead of sending another person to replace him the Vice-President, Professor Yemi Osibanjo, was reported to have said: “Magu will be EFCC chairman as long as Buhari and I remain in office”.
Nwabueze observed, “Coming from an esteemed constitutionalist, this is an incredible thing to say. The statement amounted to a defiance not only of the command of the Constitution requiring the approval of the Senate for everyone to occupy certain important or strategic offices in the state (see section 147), but it is also a defiance of the decision of the Senate which twice rejected the appointment of Magu for weighty enough reasons. The statement is also a repudiation of the cogent reason for requiring Senate approval for important, strategic appointments.”
Nwabueze insisted that, for unconstitutionally standing by Magu, both Buhari and Osinbajo are liable for any misdemeanours committed by the suspended EFCC acting chairman during his ‘illegal’ stay in office.
“And so it happened that, for nearly four and half years, Magu functioned, albeit in an acting capacity, as chairman of EFCC without Senate approval. The implication, from the legal standpoint, is that the President and Vice-President who enabled him to so act and who defiantly stood by him while he was so acting are vicariously liable for his acts.
“Indeed, their liability is more than a vicarious one; by standing defiantly behind him for nearly four and half years while he did those acts, they are directly liable; it is as if they did the acts by themselves directly,” Nwabueze said.
Explaining the need for Senate confirmation in the appointment of certain category of public officers by the President, Nwabueze pointed out that “for this purpose the Senate is the ‘public eye’ for ensuring that the appointment of the President’s principal assistants conforms to the standards of integrity, competence and national interest required for the efficient management of the nation’s affairs.
“Apart from the scrutiny of the character and suitability of the persons for ministerial and other strategic appointments, the check also enables the Senate to ensure that such appointments comply with constitutional provisions prescribing qualifications and disqualifications for such appointments, and that, as directed by the Constitution, it reflects the federal character of the country.
He added, “The President may well lose sight of these in a desire to favour friends or to satisfy pressure from party leaders. There is, of course, nothing in the Constitution to prevent the President from re-submitting a name earlier rejected or the Senate from reversing an earlier rejection if it is satisfied, on the basis of fresh information, that the earlier decision had been wrong, but a reversal is not to be lightly made if the Senate is to retain credibility with the public.”
Nwabueze further pointed out that the President’s power to remove some public officials, including the Chief Justice of Nigeria, requires the Senate’s approval.