May 6, 2021


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Nigeria, constitutional democracy or regime of personal rule?

6 min read

By Ben Nwabueze


This write-up describes the character of the government under President Buhari by reference to two main characteristics viz, subversion of the EFCC Act and of the constitution.

Section 2(3) of the EFCC Act provides 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.” It needs to be emphasised that it is the appointment, not the nomination, that is subject to Senate confirmation, but an appointment made by the president, while valid in a formal sense, is not complete until it is confirmed by the Senate; it is at best inchoate, and Senate confirmation is needed to complete it and make it fully effective or, putting it differently, it (the appointment) is not completely constituted without the Senate confirmation; until it is so confirmed, the appointee cannot begin to act.

The statement by the vice-president that “Magu will be EFCC chairman as long as Buhari and I remain in office” is thus a manifest subversion of section 2(3) of the EFCC Act. 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.

In all the cases under the constitution where the approval of the Senate is required for a proposed appointment by the president, the approval is a condition for the validity of the appointment; the appointment cannot take effect without the approval. The deployment of any members of the armed forces on combat duty outside the country must be approved by the Senate in advance (s.5(3)(b). The appointment of various categories of public officers requires the prior or subsequent approval of the senate to be effective. Three formulas are employed. In the case of ministers, the president first makes nominations which, if confirmed by the senate, are then finalized by formal appointment by the president (s.147(2). The senate must make a response to the nominations within 21 days of receiving them or else the appointments will be deemed to have been made (s.147(6). It seems that this provision is satisfied if a nomination, without being confirmed or rejected, is merely returned for more information. For the second category of officers, ambassadors, high commissioners or other principal representatives of the country abroad, it is provided that their appointment by the president shall not take effect unless it is confirmed by the senate (s. 157(4). The appointment is first made by the president but its effect is postponed pending the senate’s approval. The third formula permits an appointment to be made in the first place by the president with immediate effect, subject to subsequent confirmation by the senate. It lapses in the event of the senate’s rejection. This relates to appointed members of the civil service commission, electoral commission, judicial service commission, national population commission and police service commission (s.157(2), the auditor-general (s.80[1]), the Chief Justice of Nigeria (s.211(1), justices of the Supreme Court (s.211[2]), president of the Court of Appeal (s.218(1), and members of the Code of Conduct Bureau (5th Sch., para. 16[2]).

It is provided that where any authority or person has power to make, recommend or approve an appointment to an office, such power shall be construed as including power to make, recommend or approve a person for such appointment, whether on promotion or otherwise, or to act in any such office (s. 277[2]). The power given to the president to appoint an acting auditor-general (s. 80[2]) is thus subject to senate approval like the substantive appointment itself. The provision does not however apply to the appointment of a person to act as Chief Justice of Nigeria or president of the court of appeal, because of the specific provision that, without the approval of the senate, it shall cease to have effect after three months (ss. 211[4] and [5] and 218[4] and[5]).

As regards the removal power, the president’s power to remove the Chief Justice of Nigeria, the auditor-general, the chairman and members of the civil service commission, the council of state, electoral commission, judicial service commission, national population commission and the police service commission is also checked by the requirement of senate approval. Again different wording is employed in the three cases, but the effect of the provision relating to the chief justice and the chairmen and members of the named executive bodies is that the approval of the senate is a condition for removal; the president cannot remove without it. The provision relating to the auditor-general says that he shall be removed from office by the president upon an address by the senate praying for his removal s. 81[2]). In all these cases the address of the senate praying for removal must be supported by a two thirds majority of its members and be based on the ground of inability to discharge the functions of the office (whether arising from infirmity of mind or body) or misconduct.

Ibrahim Magu was appointed by President Buhari as chairman of EFCC in an acting capacity on November 9, 2016, and his appointment was sent to the Senate for confirmation, but was twice rejected, based on an adverse report by the Department of State Service (DSS) which impugned his credentials as a person unfit for the appointment. But instead of sending another person to replace him, Vice-President Professor Osibanjo, was reported to have said : “Magu will be EFCC chairman as long as Buhari and I remain in office.” 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, as stated above, for requiring Senate approval for important, strategic appointments.

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.

We must appreciate Professor Mahmood Yakubu, a professor of history from Bauchi State for saving nigeria’s constitutional democracy from emasculation. Yakubu was reappointed chairman of INEC by President Buhari in October, and his appointment expired on November 9.

As he stated on November 9, “the renewal of my tenure as chairman of the commission has been announced, subject to confirmation by the Senate. Our work as election managers requires us to enforce the law, regulations and guidelines. In doing so, we must demonstrate strict respect for, and compliance with, the constitution of Nigeria and subsidiary laws. Consequently, it will be inappropriate for me to remain in office beyond today, 9th November 2020, without confirmation by the Senate and swearing to another oath of office as provided by law.

Pending the conclusion of the statutory process, the remaining National Commissioners have resolved that AVM Ahmed Mu’azu (rtd) will oversee the affairs of the commission. It is therefore my pleasure to hand over to him in the interim.”

Professor Mahmood must be commended for not perpetuating the illegality of elongating his tenure after its expiration without Senate confirmation.


  • Professor Nwabueze, SAN writes from Lagos.