The seeming stalemate between the Presidency and the Senate over the confirmation of Ibrahim Magu as substantive chairman of the Economic and Financial Crimes Commission (EFCC) is still very much in the news. In this interview, a renowned lawyer, Yusuf Ali (SAN), debunks Vice President Yemi Osinbajo’s submission, saying that the constitution does not stipulate that the Senate must confirm the appointment of the head of the anti-graft agency.
What is your opinion on the submission of Vice President, Prof Yemi Osinbajo, saying that the constitution does not say that the Senate must confirm the Chairman of the Economic and Financial Crimes Commission (EFCC)?
I want to believe that the vice president was quoted out of context. The interpretation of our laws and constitution rests with the courts alone. Section 171 provides that the Senate should confirm some people that are nominated for offices. But the constitution does not say it is only those offices mentioned that need confirmation. The EFCC Act stipulates that the appointment of its Chairman must be confirmed by the Senate. And until a competent court nullifies that section of the EFCC Act, that is the law of Nigeria.
So, there is no person; no matter how highly placed, who can nullify the law except the court. As at today, it is a requirement of our law that whoever is nominated as the EFCC chairman must be confirmed by the Senate. And I want to presume that the vice president who took an oath to uphold the laws and the constitution of Nigeria will not say something that will amount to a breach of the law. Since the Senate has rejected Magu as substantive chairman of the EFCC, I form a very humble view that it is illegal for him to continue to act. If he has not been nominated at all, it is no problem. But having been nominated and rejected, that is the end of his acting because by the same logic, if the president nominates somebody for ministerial appointment, and the senate rejects the nomination, the president cannot appoint the person as acting minister. So, if the president cannot do that, he cannot continue to use somebody who has been rejected by the Senate in acting capacity.
Don’t you also agree with his submission that the constitution supersedes the EFCC Act?
The constitution supersedes only when the court declares it null and void. No individual in this country can sit in his office and declare the Act null and void.
There have been claims and counter claims over the ownership of the money recovered in Ikoyi by the EFCC. How would you assess the capacity of the anti-graft agency to investigate?
That confirms what we have been saying that the tactics of the EFCC will not yield results. For me, even as a layman, what ought to have happened before they went after the money is for them to lay siege on the house and monitor the people coming in and out of the place, watch their movement and what they normally bring in.
By so doing, they would have been able to know the people behind the money. Instead, they went into the place before looking for the owner. How would they find the owner? Some of us have been criticized for saying that investigation is not a matter for newspapers. It is after you have done your thorough investigation and you have gathered enough evidence that you take the person to court. But most of the allegations are done on the pages of newspapers. We have seen other agencies in other parts of the world the way they do their things. Let’s try to do things with the best international practices. FBI will not go to somebody’s house and show it on television. Of course, other people who have the same issue will take a cue from it and run away.
Now, everybody is claiming the ownership of the money. It shows that there is no investigation at all done.
Is it for lack of capacity to do investigation or just to play to the gallery?
I think it is to play to the gallery. And that has been the style of the EFCC from day one. From its inception, they would first of all declare suspects as criminals only to discover that they are innocent. The pattern has continued. Investigation is a serious business, but so many things are wrong with the way it is being done. In most cases, they would have labeled and maligned somebody before taking him or her to court and then discover that he or she is innocent. How do you ameliorate the image of such individual and that of his family? The court cannot act on sentiment or what is published on the pages of newspapers.
What is the implication of the way and manner the operatives invaded the house and made exposure of the money recovered to the whole world?
This country is being ridiculed by the day. It is confirming the general notion that Nigerians are corrupt people, they are crooks. No foreign investor will come to a country where everybody is seen as criminal. And that is what we are suffering economically.
If you call your daughter a prostitute, you won’t find a reasonable man that will be a suitor. That is the story of Nigeria. If we are all treated as crooks and criminals, no foreigner will want to come here and invest his money.
Many people have criticized the anti-corruption war of this administration saying it is selective and partisan. How would you react to the suspension of the SGF and the DG of NIA?
I have made this position very clear from the beginning, and I have been criticized by the people in the Presidency. And that is that there is no anti-corruption war going on in Nigeria. What is going on which I commend the president for is that we have identified a few people that were thought to be corrupt. A war against corruption has to be holistic. As we are talking, people still pay money at checkpoints.
Essentially, what has changed in our lives is the way Nigerians do their businesses. People still mount the checkpoints and you have to settle. People don’t render services unless their palms are greased. So, a war against corruption must be something that will be total. Corruption is not only about taking money. Nepotism is corruption, tribalism is corruption, favouritism is corruption. For me, if we want to start a new war against corruption, then we have to go back to the drawing board and do a very thorough job about it.
Like I said, I commend the president for his resolve to tackle corruption. And a few people have been identified and allegations have been made. The fact that the president has now suspended Babachir David Lawal is commendable. But people forgot that it was the same Senate that rejected Magu that investigated the IDP money and came out with a report that indicted Lawal. If the Senate is that credible, why can’t we give the Senate the benefit of the doubt when it rejected Magu? For me, the president is trying. But the issue of corruption is not a one-man war. All of us must believe in him. We need to do a more serious work, if we want to tackle corruption because I have not seen any changes in the way Nigerians do their things.
Would you say the Senate is right in saying that it will not confirm the Resident Electoral Commissioners, if the President refuses to sack Magu?
Don’t forget, the Senate does not have the police to ensure that its decisions are obeyed. So, they will use the weapons they have. And the only weapons they have is to tell the president and his people that ‘look, we are not going to do this or do that.’ They may even say they are not going to allocate funds to that particular body. The law is made for all of us to obey. If a law court has not declared that section of the EFCC null and void, nobody can say it is void, no matter the opinion of the person, no matter how highly placed.
What then is the way out of the impasse?
I think they are dealing with an arm of government that is strong enough to know what to do. The other time, Donald Trump took Obama healthcare to the Congress, and the Congress refused to repeal it and the man took the humble pie and went back. Once you are selective in what you want to obey and what you don’t want to obey, then you are inviting breakdown of law and order. It is in the interest of those in government to obey laws. If the citizens too decide to take the laws into their own hands, there will be no peace. So, people in government must live by example. Most people don’t like tax but they have to pay tax to be law abiding citizens. We cannot afford to be selective in our adherence to the rule of law. Once we start to do that, we will be inviting anarchy and chaos.