PenCom: Presidency may side-step Senate confirmation

… As new DG, commissioners assume office tomorrow

From Fred Itua, Abuja 

There are strong indications that the new Executive Management Team (EMT) of the National Pension Commission (PenCom) may officially take over the affairs of the regulatory agency tomorrow, contrary to Section 19(3) of Pension Reform Act (PRA) 2014, which requires their confirmation by the Senate.

This followed the issuance of appointment letters to the new Director-General (DG), Alhaji Aliyu Dikko Abdulrahman and other members of his team by the Office of the Secretary to the Government of the Federation (OSGF), last Friday. 

The presidency had on Thursday, April 13, 2017, announced the removal from office of the former EMT, led by Mrs. Chinelo Anohu-Amazu, and their replacement by a new set of Commissioners, led by Alhaji Aliyu Dikko Abdulrahman.

In the said announcement, the presidency had said that their appointments were subject to senate’s confirmation. Section 19 (3) of PRA 2014 provides that “The Chairman, the Director-General and the Commissioners shall be appointed by the President subject to the confirmation by the Senate.”

However, Daily Sun gathered reliably that the nominees have received a go-ahead to resume at PenCom head office tomorrow, after the Workers’ Day holiday.

A source in the Senate, who pleaded anonymity, said “such barefaced impunity and flagrant disrespect for the rule of law” could lead to zero budgetary allocation to the affected agencies if confirmed to be true, that they would be resuming without senate confirmation.

The senate’s refusal to confirm Ibrahim Magu as Economic and Financial Crimes Commission, EFCC, substantive chairman, led to the presidency,  through the Vice President, Yemi Osinbajo, a professor of law, to come up with an alibi that by virtue of section 171 of the constitution, Magu does not need a senate’s confirmation.

He had, among other things, said: “If you look at that section, it talks about the appointments that the president can make. They include appointments of ministers, ambassadors and heads of agencies such as the EFCC. In that same section 171, the constitution rightly said 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 legislation conflicts with constitution, it’s the constitution that prevails.” It is this same section, Daily Sun gathered; the presidency is again relying on to side-step the senate’s confirmation over the appointment of new EMT, for PenCom.

But, another renowned lawyer, Yusuf Ali, SAN, added his voice to debate recently, insisting that Osinbajo goofed over Magu.

In an exclusive interview with our sister publication, Sunday Sun, Ali, among other things, said “I want to believe that the vice president was quoted out of context. The interpretation of our laws and constitution rests with the courts alone. Section 171 provides that the senate should confirm some people that are nominated for offices. But the constitution does not say it is only those offices mentioned that need confirmation. The EFCC Act stipulates that the appointment of its chairman must be confirmed by the Senate. And until a competent court nullifies that section of the EFCC Act, that is the law of Nigeria.

“So, there is no person; no matter how highly placed, who can nullify the law except the court. As at today, it is a requirement of our law that whoever is nominated as the EFCC chairman must be confirmed by the Senate. And I want to presume that the vice president who took an oath to uphold the laws and the constitution of Nigeria will not say something that will amount to a breach of the law. Since the Senate has rejected Magu as substantive chairman of the EFCC, I form a very humble view that it is illegal for him to continue to act. If he has not been nominated at all, it is no problem. But having been nominated and rejected, that is the end of his acting because by the same logic, if the president nominates somebody for ministerial appointment, and the senate rejects the nomination, the president cannot appoint the person as acting minister. So, if the president cannot do that, he cannot continue to use somebody who has been rejected by the Senate in acting capacity. The constitution supersedes only when the court declares it null and void. No individual in this country can sit in his office and declare the Act null and void.”

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