Some senators, in separate interviews with our correspondent, faulted the constitutional references made by Vice-President Yemi Osinbajo and human rights lawyer, Mr. Femi Falana.
The lawmakers also indicated their intention to approach the Supreme Court for clarifications on Magu’s appointment.
The Presidency had stated its decision to retain Magu as the EFCC’s boss despite the rejection of his nomination by the legislature.
It had also said the decision would not be communicated to the Senate.
Speaking to journalists, the Chairman of the Senate Committee on Anti-Corruption and Financial Crimes, which has the oversight over the EFCC, Senator Chukwuka Utazi (PDP/Enugu North), however, faulted Osinbajo and Falana for quoting Section 171 of the Constitution as empowering President Muhammadu Buhari not to seek Senate’s approval for Magu’s appointment.
“When the Senate sits (resumes from recess), we will reply he Vice-President on points of law. As a lawyer, one may say something and not say the whole truth but stop halfway to confuse the people,” he said.
Utazi stated that those who felt that what the Senate did on Magu was wrong should also take note of Order 131 of the Senate, “which says that once you come (are nominated) twice without success, you cannot come back (re-nominated).”
He added, “Section 60 of the 1999 Constitution (as amended) empowers the Senate and the House of Representatives to make rules to guide their activities. That Section 60 is not inferior to Section 171 by any standard. The rule of the House is subsidiary legislation deriving its powers from the grand norm, which is the 1999 Constitution.
“The Constitution does not want to give us the rules that would be put in the Constitution. Therefore, by deriving its force from the Constitution, it is not inferior to any part of the Constitution.
“It is the same Section 60 that made the Attorney General of the Federation (and Minister of Justice, Mr. Abubakar Malami (SAN), to go to court when the Senate said it amended and adopted its rules, which they said was forged. He took the Senate to court and the reason was that it was a constitutional matter.
“We said it was an internal affair of the Senate but he said no; that even though Section 60 empowers us to do so, as the chief law officer of the federation, he would defend any infraction on the Constitution.
“The same executive cannot come back and say the same Section 60 that empowers the legislature to have its rules is inferior. Any lawyer can argue it; I am a lawyer.”
Also, Senator Adesoji Akanbi (APC/Oyo South) said the Senate might seek legal means to determine its next move on Magu.
When asked if the Senate might go to court to seek judicial interpretation of Magu’s rejection by the legislature, Akanbi said, “When we resume from break, we will consider all options. It is the beauty of democracy. We need to make consultations and, if need be, approach the Supreme Court for interpretation.”
He added, “It is now the issue of interpretation of the Constitution. If you followed what the Vice-President said, it was the decision of the executive. I believe that the Senate should sit down and make wide consultations on the interpretation of (the relevant parts of) the Constitution.
“My worry is that why did they (Presidency) have to resend the man (to the Senate for confirmation) in the first place, and the Senate denied him (rejected his confirmation) twice.
“The Presidency is just waking up now to interpret the constitution. Now, both arms of government have to consult and approach the matter constitutionally.”
In his submission, Senator Kabir Marafa (Zamfara Central) also called for wider consultations on the interpretation of the relevant sections of the law.
He, however, ruled out the possibility of worsening the crisis between the two arms of government.
“There is beauty of democracy in this thing. I don’t foresee any conflict. But for now, I am sure the lawyers will go to work and they will look at the various provisions and they will advise both sides.
“The executive will need more of the advice. I will also call Falana and hear from him because the Vice-President quoted him. I will call him for free consultation,” Marafa said.
Also, Senator Shehu Sani (APC/Kaduna Central), also said, “You can divide the Senate into three – those who are for Magu; those who are against Magu, and those who are neutral on Magu. As far as I am concerned, the best help Osinbajo can do to Magu is to host the APC Senate caucus and to put the ‘Presidential Villa house in order’.”
Senator Rafiu Ibrahim (APC/Kwara South), who was asked if the Senate might need to consult the judiciary on Magu’s appointment, said, “It is not for us; it is for the judiciary to do that. But we know our role constitutionally. We have done our own; let the President do whatever he likes and he will get to us.
“I am sorry to say that the Vice-President is not the President and he is no more the Acting President.”
Senator Mao Ohuabunwa (PDP/Abia North) equally said he was studying what the EFCC Act says on nomination and confirmation of the agency’s chairman.
He said, “I know that within government (civil service) rules, there is a limit to acting (in a capacity); there is no acting infinito. For us as a Senate, what happens is that if they (executive) have the powers to bring him for clearance, we have the powers to screen and accept or reject him.
“To say that we don’t have the powers to screen Magu is not true, because somebody said Magu was not supposed to have been sent to the Senate in the first place.”
A source close to the leadership of the National Assembly, who spoke on condition of anonymity, also dismissed Falana’s argument, as re-echoed by Osinbajo, as faulty.
The source added, “This institution is under serious assault. People are damaging the constitutional basis of this country because of the Senate. Look at what Osinbajo is saying, quoting Section 171. Is Magu a personal employee of the President?
“If lawyers want to be on this side, they can turn the entire law to the side they want.”
The Senate had twice rejected Magu’s nomination by Muhammadu, citing a security report by the Department of State Services, which indicted the nominee.
The lawmakers had said the rejection of Magu meant that he could not continue to function as the acting EFCC chairman, calling on Buhari to remove him from office.