The EFCC was created as an anti-graft agency by the EFCC (Establishment) Act of 2004. Section 2(3) thereof gives the President absolute powers to appoint the EFCC Chairman. However, this appointment is subject to confirmation by the Senate. Without such a confirmation, the appointment remains inchoate and incomplete.
The President has done two right things .First, by appointing a 40-year-old youth, Abdulrasheed Bawa, as the new EFCC acting chairman .Second, by approaching confirmatory authority – the Senate – to accord it legislative imprimatur. But, he must also bear in mind that the Senate, not being a rubber-stamp body, is also entitled to decide whether to confirm or reject this new nominee.
I like the fact that Bawa is a youth on the blocks. He brings the much despised youth’s tomorrow to today. He will deploy to his job, the vitality of youthful energy, nerve, and verve.
When the eighth Senate of the NASS rejected former acting EFCC Chairman, Mr. Ibrahim Magu on two consecutive occasions over damning reports by the government’s secret Police Agency (the DSS), some pro-government apologists promptly moved to his aid. Shockingly, even some lawyers argued that Magu could remain in office till eternity, till kingdom come, irrespective of his two-time rejection by the Senate. Their contention (I could not believe this) was that he was very competent and he was fighting corruption frontally. I disagreed. I argued that Magu’s rejection by the Senate was final; and that he could not continue to act forever, whatever his performance quotient was. But Magu’s advocates were content defending, at all cost, the illegality and assault on our corpus juris.From (his) glittering resume, the cap appears to squarely fit Bawa's head as a new EFCC Chairman. However, there are some issues Mr. President and the Senate should be wary of, and therefore take steps to correct or address immediately. Click To Tweet
The reasons for his rejection were even more significant. The DSS’s report which the Senate acted upon said Magu had “failed the integrity test”. For an anti-corruption czar who was expected to be above board like Caesar’s wife, that report was damning enough. It stripped his continued stay in office of legality, integrity, and morality. But, the hawks prevailed until other issues cascaded in and forced the Salami Panel to suspend Magu from office. Fast forward. The appointment of Adbulrasheed Bawa as acting Chairman is a clear vindication of this my always held position – that soldiers go, soldiers come ; but barracks remain.
The object of this my short intervention is to interrogate the appointment of yet another Northern Moslem, albeit qualified, as the EFCC Acting Chairman. Do not misunderstand or misconstrue me. I am not against Adbulrasheed Bawa’s appointment. I’ve already saluted President Buhari above, for remembering the youth. Three things immediately stand in Bawa’s favour: his youthfulness (a mere 40 years); his educational qualifications and cognate experience; and the fact that he is a product of the EFCC institution itself.
In my two-day submission before the Justice Ayo Salami Panel last year, I was more concerned about restructuring, overhauling, repositioning, and re-engineering the EFCC in such a way as to make it a strong, viable institution, as against strong men. Google this. I submitted a 175-page write-up; 42 files; 215 exhibits; seven videos; and made 33 recommendations. I wanted a non-manipulabe anti-graft agency independent of, and far removed from political manipulations as in the past.
One of my most endearing recommendations was that never, never and never again, should the EFCC Chairman be appointed from the Nigeria Police Force. I saw such external appointments as great injustice to the rank and file of professionally competent EFCC operatives, who have been trained in the system. I had therefore recommended that the next Chairman of the EFCC must be a core EFCC operative, taken straight from the very cooking pot of the EFCC as an institution; and not external stranger elements.
This recommendation appears to have been bought into by the Salami Panel and the government. Consequently, beholding a 40-year-old Bawa, a pioneer member of the EFCC Cadet Officers Corp of 2005.With a Bachelor of Science degree in Economics, and a Master’s degree in International Affairs and Diplomacy, Bawa’s appointment gladdens my heart. Such has been my personal desire. I wanted Nigeria to have a non-partisan professional to head the EFCC.
What is more; Bawa’s credentials show that he is a trained EFCC operative with vast experience in investigation and prosecution of Advance Fee Fraud cases (we call this 419 cases), official corruption, (euphemism for government corruption) bank fraud, money-laundering, and other economic crimes. Abdulrasheed is said to have also undergone several specialised training courses in different parts of the world.
Surely, from this glittering resume, the cap appears to squarely fit Bawa’s head as a new EFCC Chairman. However, there are some issues Mr. President and the Senate should be wary of, and therefore take steps to correct or address immediately. I do not just criticise or critique for the sheer sake of it. Let us interrogate some of them.
First, is Bawa statutorily qualified for the job? Section 2(1) of the EFCC (Establishment) Act, 2004, provides for a “Chairman who shall be “(i) the Chief Executive and Accounting Officer of the Commission; (ii) be a serving or retired member of any government security or law enforcement agency not below the rank of Assistant Commissioner of Police or its equivalent ”.
It can rightly and legally be argued in Bawa’s favour that he has passed this test of being drawn from the right pool prescribed above, being a “serving…member of [a] government…law enforcement agency”. This is the EFCC where he currently serves. However, he must also cross the hurdle of his present rank not being below the rank of an Assistant Commissioner of Police. I do not know his present rank; or do you? He will also come face-to-face with section 2(3) of the same EFCC Act. He “shall be appointed by the President subject to the confirmation of the Senate”. President Buhari cannot single-handedly do it. “Subject to” means “dependent on”; “subordinate to”; “accessory to”; “contingent upon”; “resting on”; “bound by”; “determined by”; “resting on”; “conditional on”; “hanging on”; or, “at the mercy of”. This simply means that no Chairman can be appointed by the President without Senate confirmation. It is all so simple. Mr. President sir, lobby the Senate to get what you want. Don’t let the usual genuflecting and boot-licking coterie of fawning advisers tell you Bawa can remain in office forever in an acting capacity without Senate confirmation.
The legal maxim of expression unius est exclusio altrius (once things are expressly provided for, others are excluded ) is applicable here. See the cases of ODUYOYE & ORS. v. LAWAL & ORS. (2002) LPELR-5473(CA); BLUE-CHIP COMMUNICATIONS COMPANY v. NIGERIAN COMMUNICATIONS COMMISSION (2008) LPELR-3882(CA); and OMATSEYE v. FRN (2017) LPELR-42719 (CA). Consequently, where the law expressly requires confirmation by the Senate for the office of EFCC Chairman, other provisions (such as the argument given for Magu that he must remain in office because he was competent and fighting corruption frontally) are wholly excluded.
Bawa is not a mere political appointee envisaged under section 171 of the Constitution, whom the president can simply appoint and dismiss at will. Such appointees are Ambassadors, Ministers, Permanent Secretaries, Special/Personal Advisers, and such personal staff or aides of Mr. President. The EFCC Chairman is a statutory creation by the EFCC (Establishment) Act. It is the same Act that establishes the EFCC itself (section 1); donates powers to the Chairman, who shall be “the Chief Executive and Accounting Officer of the Commission” (section 2(1)(a)(i); and, provides for a Board and its membership (section 2(ii)(b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m) and (n).
It is the same Act that stipulates the tenure of office to be four years for the Chairman and members of the Commission, except ex-officio members [section 3(1)]. It is the same Act that sets out the functions of the Commission (sections 5 and 6).
Where a law makes provisions for an act to be carried out in a particular procedure (way of doing something) that particular procedure must be followed; and such act cannot be done another way. See the cases of ADHEKEGBA v. THE HONOURABLE MINISTER OF DEFENCE & ORS. (2013) LPELR-20154(CA); THE REG. TRUSTEES OF UGBORODO COMMUNITY TRUST & ORS v. OJOGOR & ORS (2014) LPELR-23333(CA); ADETONA & ORS v. OBAOKU & ORS (2016) LPELR-41931(CA).
This is because it is settled law that where the words of a statute are clear and unambiguous, they should be given their literal interpretation. See NWANKWO & ORS. v. YAR’ADUA & ORS. (2010) LPELR-2109(SC); UGWU V. ARARUME (2007) LPELR-3329(SC); NOGA HOTELS INT’L S.A. V. NICON HOTELS (2008) All FWLR (Pt. 411) 840 at 850. Pp. 869-870, paras. E – A(CA); DURU v. FRN (2013) LPELR-19930(SC); and, EZELIORA & ANOR V. MUONAGOR & ORS (2011) LPELR-9208(CA).
The greatest hurdle Bawa may have to cross has to do with Nigerians’ perception concerning his section of origin and religion. Most Nigerians are already fed up and quite angry with President Buhari for thinking that the only people who are competent and qualified to head all the sensitive positions in the security and para-security architecture in Nigeria, and most commanding heights of the Nigerian polity, are simply Northerners and Moslems only. So, no Southerners or Christians can be found who are equally qualified and competent for these positions? Is the president really telling Nigerians that no Christian from the South is fully qualified to head the Army, Navy, DSS, EFCC, Security and Civil Defence, Fire Service, Immigration, Correctional Services (Prisons service), Customs, NIA, DIA, IGP, NEMA, NYSC, NSA, SGF, NNPC, CoS, Senate, CJN, President (Court of Appeal), CJ (FHC), CJ (FCT High Court), BOA, SEC, PTF, NIMASA, NPA, FIRS, AMCON, PenCOM, NCC, NDIC, NHIS, AGF, Accountant General (Federation), DPR, etc. Haba, Mr. President!!!The Federal Character principle exists. It was enshrined in sections 14(3) and 153(1) of the 1999 Constitution in our multi-ethnic and multi-religious society, to ensure equal participation of the various ethnic extractions and tendencies… Click To Tweet
We call this naked nepotism, cronyism, sectionalism, prebendalism, favouritism and abuse of office. Aside the Judiciary where it can be said the order of succession is fairly known, the rest appointments are whimsical, capricious and arbitrary.
So, youthful Bawa will face the outcry of many sections of a beleaguered country tired of lopsided appointments that make some foreigners ask me if we are a unitary country made up of one ethnic group and religion. I know we are not. I always tell them we are not. Eminent Sociologist, Professor Onigu Otite tells us we are a country of 374 ethnic groups. Bangura says we are over 400 ethnic groups. Remember the fear entertained by the minorities which led to the Willinks Commission Report of 1958? Remember the 1922 Clifford Constitution; 1946 Richards Constitution; 1952 Macpherson Constitution; 1954 Littleton Constitution; and the Constitutions of 1960 (Independence); 1963 (Republican); 1979; 1989; 1999 (Decree No 24)? Are we not actually regressing, retarding?
The Federal Character principle exists. It was enshrined in sections 14(3) and 153(1) of the 1999 Constitution in our multi-ethnic and multi-religious society, to ensure equal participation of the various ethnic extractions and tendencies in the governance of the country. This was to prevent the domination by one or few ethnic groups over others. This was to enhance and promote national unity, national loyalty, and a sense of belonging amongst all Nigerians. It was to ensure the equitable sharing of all bureaucratic, economic, media and political posts at all levels of government. But this is not the case.
The EFCC now appears permanently reserved for the North. Let us see the scary list: Nuhu Ribadu (2003-2007); Ibrahim Lamorde (Acting Chairman, 2008); Farida Waziri (2008-2011); Ibrahim Lamorde (2011-2015); Ibrahim Magu (Acting Chairman, 2015-2020, suspended]); Mohammed Umar (2020-2021); Abdulrasheed Bawa (Acting Chairman, 2021; just appointed).
I cannot see in this list Okechukwu, Akintayo, Oshogbhe, Oghenovo, Etuk, Ebiere, Adzuana, Toritsefe, Amenaghawon; or can you? Haba! So frustrated was I that in an earlier article espousing Bishop Matthew Kukah’s extraordinary qualities, I wrote in exasperation, “Are we not fast sliding into “Northern Republic of Nigeria”, or “Federal Republic of the North”, or “Northern Nigeria Republic”, or “Republic of Northern Nigeria”, or “Federal Republic of Northern Nigeria” or “Republic of Northern Nigeria and others”. Think about these.
Bawa, please, avoid being used as a willing tool to hunt down activists, dissenters, opposition elements, government critics, plural voices, etc. Focus on the core duties of your office as permitted by law. Good luck.
Ozekhome, PhD is a senior advocate of Nigeria
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