Section 171: Is this the road to dictatorship?

After affirming his disavowal to the practise and pattern of dictators, recent actions by the Muhammadu Buhari administration are generating fears that Nigeria’s democratically elected leader may be backsliding from his vows.

The president’s persistence on positioning Mr. Ibrahim Magu as chairman of the Economic and Financial Crimes Commission, EFCC, despite the Senate’s rejection of his nomination on two occasions was the first red flag as to the president’s fidelity to his democratic pledge.

That fear was heightened when the president’s number two man, Vice-President Yemi Osinbajo echoed the claim by one of the country’s leading lawyers, Mr. Femi Falana that the implication of Section 171 of the Constitution meant that the president could make appointments into extra-ministerial bodies without the approval of the Senate irrespective of the laws establishing such bodies. Echoing Mr. Falana, Osinbajo, himself a lawyer of repute had said: “In that same Section 171, the Constitution rightly said that certain appointments must go to the Senate such as ministerial and ambassadorial appointments. Those of heads of agencies like the EFCC do not have to go to the Senate. That’s what the constitution says. But the EFCC Act, which of course as you know is inferior, says that EFCC chairman should go to the Senate for confirmation. “I am sure that even a pocket book lawyer knows that when a legislation conflicts with Constitution, it’s the constitution that prevails. I agree with Mr. Falana that there was no need in the first place to have sent Magu’s name to the Senate, but we did so, and it was rejected by the Senate, but I believe that it can be re-presented.” Upon the vice-president’s argument, the administration has gone on to sustain Magu as chairman of the EFCC and thereby drawing flak from senators and concerned stakeholders. Concerned stakeholders Following that, the presidency moved to sack the director-general and governing board of the National Pension Commission, PenCom despite provisions of the Pension Reforms Act, PRA 2014 stipulating a guaranteed five-year term for the director-general. The sack of the PenCom board was laced with much drama. The director-general, Mrs. Chinelo Anohu-Amazu was removed from office via a statement issued by the Secretary to the Government of the Federation, Mr. Babachir Lawal on April 13, just four days before he was himself suspended. In removing Mrs. Anohu-Amazu, the SGF also announced the appointment of Mr. Aliyu Dikko from Kaduna State as her replacement for the top position as boss of the regulator of the pension industry. However, once the announcement was made, the constitutional bottlenecks to the action became obvious as it was in violation of the PRA, 2014. Indeed, the unilateral appointment of Dikko from Kaduna State was to further raise eyebrows as it violated Section 19(3) of the PRA 2014 stipulating that the chairman, director-general, and commissioners shall be appointed subjected to the confirmation of the Senate. However, whereas Section 21 (1) (j) of the PRA 2014 enables the president to remove any member of the commission without recourse to the Senate if he is satisfied that the person’s membership of the governing board is no longer of public interest, the president, however, shied away from using that his power and rather resorted to the use of Section 171 of the Constitution. The resort to Section 171 was seen as a ploy to protect the president from selective application of the PRA as Section 21 (2) of the PRA 2014 stipulates that in the event of a vacancy that the president should appoint a replacement from the same geopolitical zone as the person that is being replaced. Though the dismissal of Mrs. Anohu-Amazu had been announced since April 13, it was not until April 24 that her letter of disengagement was delivered to her and she handed over. While eyebrows were raised as to why the government would unilaterally sack a team that had raised pension assets from N2 trillion to N6.5 trillion under three years, many others were, however, concerned about the lack of reason given and the resort to Section 171 for the action. The resort to Section 171 was being interpreted as a last ditch effort by the administration officials to cover their flanks. It was an issue Senator Enyinninya Abaribe disagreed with. He said: “The provisions of the PRA are very clear, and you can see what is happening that there are some people from within the government that are causing problems for the government itself and I know it is something that the Senate is going to frown very seriously upon.” Remarkably, with the dust yet to settle on the developments at PenCom, the president was again reported to have wielded Section 171 in the decision to recall a retired permanent secretary in the Federal Ministry of Education, Dr. Jumaila Shuara back to service after her reported retirement. The attention of the House was brought to Mrs. Shuara’s case on February 22, 2017, during the 2017 budget defence of the proposals for the Federal Ministry of Education. A member apparently instigated by a whistleblower alleged that she should have retired in 2016 when she attained 35 years of service. Mrs. Shuara, however, retorted that her service had been extended, a comment that led the committee to ask to be furnished with the letter of her extension of service. Powers of the president The issue continued as a ding-dong affair between the committee on one side, and the minister of education, Adamu Adamu and the Head of Service of the Federation, Mrs. Winifred Oyo-Ita on the other side as both officials of the administration failed to provide the enabling justification. Based on the development, the House Committee by a resolution called on Dr. Shuara to refund all the money paid to her by the government after her point of retirement. It has now been revealed that Shuara’s engagement has been officially sanctioned by the president given latest developments that the president acted within the bounds of Section 171 of the Constitution. However, House members are kicking that the provision which allows the President to appoint persons as permanent secretaries, however, do not give him the leeway to extend the tenure of those who have retired. How the fresh revelation of the powers of the president as stated in Section 171 define the powers of the president and the limitations of parliament are bound to be tested in the near future in the judiciary.



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