Without going into the moral or political
appropriateness (or otherwise) of Nuhu Ribadu’s removal as Chairman of
the Economic and Financial Crimes Commission (EFCC), I think it is
important to clarify the position of the law with regard to his removal.
Reading through various commentaries, whether for or against the removal
or somewhere in-between, one gets the uncomfortable feeling that the
legality or otherwise of Ribadu’s removal has unnecessarily become an
issue.
The first thing to point out is that the
EFCC is not a body/organization created by the Constitution but by
statute. It is not one of the bodies listed under Section 153 of the
Constitution. Bodies created under this section are the only ones whose
members have what is akin to constitutional protection of tenure and
even that isn’t absolute. Section 157(1), subject to the provisions of
subsection (3) which only applies to the National Population Commission,
states that “a person holding any of the offices to which this section
applies may only be removed from that office by the President acting on
an address supported by two-thirds majority of the Senate praying that
he be so removed for inability to discharge the functions of the office
(whether arising from infirmity of mind or body or any other cause) or
for misconduct”. Subsection (2) goes on to list the positions that these
provisions apply to as “the offices of the Chairman and members of the
Code of Conduct Bureau, the Federal Civil Service Commission, the
Independent National Electoral Commission, the National Judicial
Council, the Federal Judicial Service Commission, the Federal Character
Commission, the Nigeria Police Council, the National Population
Commission, the Revenue Mobilisation Allocation and Fiscal Commission
and the Police Service Commission”. The Economic and Financial Crimes
Commission (EFCC) isn’t one of them.
The statute that governs appointments into
and removals from the board of the EFCC is the Economic and Financial
Crimes Commission Establishment Act (2004). Section 2(3) states: “The
Chairman and members of the Commission other than ex-officio members
shall be appointed by the President and appointment shall be subject to
the confirmation of the Senate”. Section 3(2) on the other hand deals
with removal and it states: “A member of the Commission may at any time
be removed by the president for inability to discharge the functions of
his office (whether arising from infirmity of mind or body or any other
cause) or for misconduct or if the President is satisfied that it is not
in the interest of the Commission or the interest of the public that the
member should continue in office”.
Thus, on the question of appointment, it
is clear from the above that the intention of the legislation is that
the President and the Senate agree on an appointee, just as expected in
the appointment of Ministers. But, despite the four-year term as stated,
it is not a protected tenure because of the effect of Section 3(2) which
deals with removal. That Section clearly indicates that the President
has a wide-ranging discretionary power to sack any member, including the
Chairman at any time, if he is “satisfied that it is not in the interest
of the Commission or the interest of the public that the member should
continue in office”. In other words, he does not need to consult with
anybody or any group nor is he required to disclose his reasons, as far
as he’s satisfied himself of these.
Moreover, those making the argument that a
reappointment does not require another Senate confirmation are not
backed by law or logic. In law, an appointment and reappointment are two
separate appointments. After four years, if the President feels the man
has done a good job and deserves another four years, the Senate must
feel the same way to make his appointment possible. That is why, even if
the President were to reappoint a minister after a term, whether to the
same or different office, the Minister will still need to be confirmed
by the Senate for the new term. In fact, there are precedents on this
matter and none better than the case of Ms Ifueko Omoigui, boss of the
Federal Inland Revenue (FIRS), whose position is exactly like Ribadu’s.
Ms Omoigui, like Ribadu, was reappointed
for another four year term by the ex-president, Chief Olusegun Obasanjo,
but while Ms Omoigui’s name was sent to the Senate for confirmation, as
required by Section 11 of the Federal Inland Revenue Service
(Establishment) Act 2007, no one sent Mr Ribadu’s in line with Section 2
of the EFCC (Establishment) Act 2004. Perhaps, Yar’adua had made up his
mind to remove him long before now; but, of course, that’s just a
conjecture. The hard fact is Ribadu, like everyone in his position
reappointed needed to be confirmed by the Senate. I personally see no
sense in the Attorney General, Michael Aondoakaa raising the issue since
it’s become a mute point with Ribadu leaving. The President's Special
Adviser on Communications, Olusegun Adeniyi has now told us Ribadu's
name would have been sent to the Senate for confirmation, but for his
continued attempt to blackmail the Yar'Adua government. While the
morality of such a claim stinks, since this is coming out now only after
the cynical way Ribadu is being ousted, it still does not change the
fact that in law, he needed to be confirmed. However, those who harbour
the hope that whatever was done in the time Ribadu wasn't confirmed
would be declared a nullity would be shocked. It affects nothing where
the EFCC is acting as an institution in the arrest and prosecution of
cases.
One person who’s not been spared the wrath
of the commentariat is the Inspector General of Police, Mr Mike Okiro.
People keep harping on about him not having any power to send Ribadu on
course while the latter occupies a “statutory” position, but that is
simply missing the point. As far as Ribadu is still a serving police
officer, he’s still governed by the Police Act and the service rules
which empower the IG as Ribadu’s boss to make decisions and
recommendations as to which officers go on particular courses. Where the
course in question is at the level of Nigerian Institute of Policy and
Strategic Studies (a federal parastatal in the Presidency), for an
officer of Ribadu’s position, such requires the approval of the
President. If there’s a ‘crime’ committed by the IG, then it is no more
than recommending Ribadu’s name for the course. But no matter what we
think his intentions are, he has a right to do so and when he did so, he
sought presidential approval which was granted and which was all he
announced. Okiro didn’t make the decision, because he who approves
decides. We are free to speculate that sending Ribadu on a course means
his removal (I personally consider it a constructive sack), but when all
is said and done, the Presidency is yet to issue a definitive statement
in this regard. Until this is done, we can only speculate as to what
their intentions are. It may not look great by popular consensus, but no
law has been broken.
To me, what all this shenanigans reveal is
the fact that those who hurriedly put the EFCC (Establishment) Act
together were not sincere. I think, at the time, between Obasanjo and
Kanu Agabi, they tried to tightly control things. The last Senate
attempted, after the fallout of the EFCC media list and the realization
that there’s too much puppeteering of the Commission from Aso Rock, to
amend the EFCC Act; but obviously there was no time to get into it fully
before the infamous election that has brought us here. So, following
this development, I think this is the perfect time revisit those
proposed amendments to at least give the Commission some kind of
independence from the presidency.
The power of appointment and dismissal
granted the President under Section 3(2) of the EFCC Act is not healthy.
This must be drastically curtailed via the involvement of the National
Assembly with the aim of giving appointees security of tenure. It needs
no more than simply reproducing the provisions of Section 157(1), which
I have quoted above, in the EFCC Act. That will mean the President
cannot just wake up and sack the EFCC Chairman or send him on any course
as in this Ribadu's case without first coming to the Senate to make his
case publicly to the Senators and Nigerians. Even after that, he will
not get his wish, except two-thirds of the Senators agree with him. And
I'm sure if the national mood is that the Senate shouldn't support his
request to oust the Chairman, the Senate will not support him. Any
President will have to weigh the humiliating consequences of seeking to
remove an effective or popular Chairman of the EFCC in the future.
There is also a seemingly innocuous
Section 43 of EFCC Act which states: “The Attorney General of the
Federation may make rules or regulations with respect to the exercise of
any of the duties, functions or powers of the Commission under this
Act”. Kanu Agabi must have inserted it there as the Attorney-General who
drafted the Act to oversee what his young protégé was doing, being the
one who recommended Ribadu to Obasanjo for the position. But it all just
reveals how much between him and Obasanjo they tried to personalize and
micromanage the workings and operations of the Commission. This is a
provision which could be used negatively to devastating effect by a
‘criminally smart’ Attorney General, because what it means is that the
EFCC is operating at the pleasure of the AG, in spite of the so-called
EFCC Act. I mean, if a man can just wake up and on his own make rules or
regulations that affect the exercise of any of the duties, functions and
powers of an institution like the EFCC, of what use is the EFCC
Establishment Act itself? Without prejudice to the Attorney General’s
power to institute, take over or discontinue criminal proceedings
against any person as contained in Section 174 of the Constitution, I
think this provision (Section 43 of the EFCC Act) should be totally
expunged from the Act before people like Aondoakaa begin to wake up to
its ‘value’.
If these are done – making the Senate
approve by two-third majority a proposal by the President to sack the
EFCC Chairman or any member of the EFCC board, expunging Section 43 and
then finally ensuring that the EFCC is funded from a consolidated fund,
we will then really know the value of the Commission. This is because it
will not feel the need to kowtow to Aso Rock. In fact, Aso Rock will be
as worried as the rest of society if they’re involved in any kind of
hanky-panky. That is when we can begin to say we are institutionalizing
the battle against corruption. While not attempting to make any comment
on Ribadu's own personal moral convictions, it's clear that Obasanjo was
able to intimidate him enough to get away with murder, because the
younger man knew he could be sacked just like that without any
repercussion.
For now, what we are witnessing is no more
than some new masters coming into town and sacking the incumbent sheriff
because they want to put their own man there to do their own bidding,
just like the incumbent sheriff did the bidding of the last emperor. We
can all speculate and claim the war against corruption is now going to
suffer, but all that would be sheer hypocrisy considering what went on
in the Obasanjo years. We all knew deep down that the corruption war was
going nowhere because it was already corrupted by those who claimed to
be fighting it, Ribadu included. Thus, if now we are serious about
fighting corruption, let’s first get the basic law right with the
proposed amendments to the EFCC Act and then let’s see how those we put
in charge apply the law to the job. Our efforts would achieve better
results asking the Senate to effect the necessary amendments to the EFCC
Act immediately instead of expending energy arguing over whether or not
Ribadu should stay.
Kennedy Emetulu,
London
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