Constitutionality Of The EFCC Act 2004 Subjecting The President’s Appointment Of Members Of The Commission To Senate Confirmation

By Professor Ben Nwabueze The appointment of Ibrahim Magu as Chairman of
the EFCC has been before the Senate for
confirmation two times now, and has been twice
rejected. Amazingly, neither the Presidency nor
the Senate appears to have addressed or even
adverted to the critical constitutional issue whether the provision of section 2(3) of the EFCC Act 2004
subjecting the President’s appointment of members
of the Commission to confirmation by the Senate is
or is not in accord with the Constitution, the
supreme law of the land, section 1(3) of which
makes any inconsistent law null and void, and generally with the doctrine of the separation of
powers underlying the Constitution. The issue as
to what constitutes violation of the doctrine is thus
also raised. President and Ibrahim Magu The exact terms of section 2(3) of the EFCC Act
are significant and worthy of note. It says: “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.” The word appointment is underlined to emphasise that it is
the appointment, not the nomination, that is
subject to Senate confirmation, from which it
follows that Senate confirmation is not a condition
precedent to the validity of the appointment. Our inquiry must begin with section 5(1)(a) of the
Constitution which says that “subject to the
provisions of this Constitution the executive power
of the Federation shall be vested in the President.”
This provision is reinforced by section 130(2),
which designates the President, “the Chief Executive of the Federation.” The critical
constitutional issue raised by s.2(3) of the EFCC
Act is whether the subjection of the President’s
appointment of members of the Commission to
Senate confirmation is consistent with or is a
derogation from section 5(1)(a) of the Constitution vesting the executive power of the Federation in
the President. This raises the issue: what is executive power, or
rather what is its nature or extent? Or more
explicitly, what functions are embraced in it? The
term “executive power” may be defined, first and
foremost, by reference to functions that partake
indisputably of execution. Such, for example, is the doing or execution of physical acts, e.g.
construction works, provision of infrastructural
facilities or welfare services, other activities
involving physical action, like the conduct of
military operations, the minting of coins, the
printing of currency notes and stamps, and the award of contracts for such works. Interference
with such functions by the Legislative Assembly is
unconstitutional and void. The decision of the
Kaduna State High Court in a case in 1981
(Governor, Kaduna State v. The House of
Assembly, Kaduna State) affirms the unconstitutionality of legislative encroachment on
a function in this category – the award of
contracts for works to be done or services to be
provided. Also embraced indisputably within the domain of
executive power is pure administration, i.e., purely
administrative work within the executive
departments not involving physical action in the
sense mentioned above. This, too, cannot be
controlled by the legislature, subject to what is said below about purely administrative or ministerial
functions of a quasi-legislauve or quasi-judicial
nature entrusted to an agency created by statute. Executive power embraces not only activities
involving physical action or pure administration,
but also the making of instruments as a means of
carrying the provisions of a law into execution.
Legislative power is meant for use in prescribing
rules of general and uniform application to persons and things, whereas the application of those rules
to individual cases, whether by means of executive
instruments or judicial decrees, is inappropriate to
its true nature. Furthermore, by the explicit
stipulation of the Constitution, legislative power is
exercisable only by means of bills (section 58(1)). Accordingly, in the case mentioned above, the
Kaduna State High Court also held unconstitutional
and void, a law by which the State House of
Assembly transferred to itself powers of the
governor exercisable by executive instruments or
orders under the State’s Local Government Law, viz: power to create individual, named local
governments with designated capitals, to constitute
an emirate or traditional council for an emirate or
traditional area and to prescribe for it the device of
its seal, the composition of its governing council,
its area of authority with detailed demarcation of boundaries; power to order an inquiry into the
affairs of a local government council, and
following upon such inquiry, to dissolve the
council and either appoint a committee of
management or order an election. One more illustrative example of a function
distinctly executive in nature may be mentioned.
The organising and planning of celebrations to
mark the anniversary of an event of great national
importance pertains peculiarly to executive power;
there is nothing legislative or judicial about it. It belongs therefore exclusively in the domain of the
executive. Comity needed for fostering a
harmonious relationship between the two political
organs may well demand that the executive
consult and involve the legislature in planning and
organising such celebrations, but the demands of comity must not be confused with or be elevated
to a constitutional requirement.