By Chief Mike A. A. Ozekhome, SAN, Constitutional Lawyer and Human Rights Activists.
My attention has just been drawn by readers and members of the public to a most damaging and misleading banner headline of my interview published at page 28 of a National Newspaper of 27th April, 2017, with the wrong screaming headline, “section 171 of the Constitution not superior to section 2(3) of EFCC Act – Ozekhome SAN”
The headline is not only inaccurate and false; it does not correctly portray the pith, text, substance and contents of my argument as fully reflected in the main body of the story itself. The banner headline is a pitiable caricature of the main story.
I did not, cannot and would ‘Never’ argue that the provisions of the Constitution, the grund norm of the land, the fons et origo (source and origin of all other laws), including Acts of Parliament, is inferior to the EFCC Act. Haba!
Any pocket lawyer, even non-lawyers, very well knows that the Constitution is the supreme law of the land. The 1999 Constitution proudly proclaims its supremacy in section 1(1), in the following words: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”.
Section 1(3) then goes on to state most unambiguously: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”.
The Supreme Court of Nigeria has upheld the supremacy of the Constitution in a plethora of cases, including: Abacha vs Fawehinmi (2000) 4 SC (PT. 11), PAGE 1; AG Abia State vs AG FED. (2002) 6 NWLR (PT. 763) 204; AG Ondo vs AG FED. (2002) 1 NWLR (PT. 772) 222; Balonwe vs GOV. Anambra State (2009) 18 NWLR (PT. 1172) 13.
The pith and substance of my argument is that there is no conflict whatsoever and howsoever between the clear provisions of section 2(3) of the EFCC Act which insists that the President shall have powers to appoint its Executive Chairman Subject To Confirmation by the Senate, and section 171 of the 1999 Constitution, which Never envisaged an EFCC created 5 years later, Never provided for it, but which merely provides for certain bureaucratic positions of government that are not created by Statute, such as Extra – Ministerial Departments (EMDs).
Such EMDs are not like statutorily created bodies, such as the EFCC, NNPC, CBN, NAFDAC, FRSC, Prisons, Customs, etc. Such EMDs once enacted into an Act of the National Assembly, they cease to be EMDs.
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They are governed solely by the provisions of the parent creating Act, and no more. I hereby maintain my stand that section 2(3) of the EFCC Act does not in any way howsoever, conflict with, or derogate from, section 171 of the 1999 Constitution.
Not that it is superior to, or that it overrides section 171. NEVER. Infra dignitatem.
The tail can never wag the dog. They are worlds apart. One is supreme ( the Constitution), but does not cover or apply to the specific matters of appointment dealt with only by the inferior EFCC Act, the very Act that breathed the oxygen of existence into the EFCC itself as an institution.
To say that section 171 of the 1999 Constitution does not apply to matters covered by the EFCC Act is not to say the Constitution is inferior to the Act, or that the provisions of the Act super cede those of the Constitution.
That is mere red herring. Such deliberate misrepresentation does not represent my clear words or intention in the interview.
For the avoidance of doubt, it is the EFCC Act, No. 1, LFN, 2004, and NOT section 171 of the 1999 Constitution, that created the EFCC and gave it life. Consequently, the origin, powers, composition, rules of engagement, practice and procedure, of the EFCC are governed solely by the EFCC Act, 2004, and not by section 171 of the 1999 Constitution, which deals with EMDs, and not the EFCC.
This does not in any way make the Act superior to the Constitution. It simply means that the Constitution is inapplicable to the EFCC in the peculiar circumstances of this case.
The Constitution can never envisage, nor provide for every matter in human affairs, especially, in a dynamic society such as we have. That is why the very Constitution itself, in section 4, gives powers to the National Assembly to “make laws for the peace, order and good government of the Federation”.
The EFCC Act of 2004 is one of such living and extant laws made for “the peace, order and good government of the Federation”.
It must be obeyed in full, not in bits and pieces. The Executive cannot pick and choose which portions to obey in the Act and which not to.
The Executive cannot enjoy EFCC’s power, to freeze citizen’s accounts and attach their properties ex parte, yet refuse to obey that very aspect of the Act (section 2(3)), that specifically provides for how it’s very CEO, the Executive Chairman, shall be appointed.
That will amount to approbation and re-probation. Such is forbidden in statutory interpretation. You cannot relish akara and moi moi delicacy, yet hate their parent, beans.
You cannot claim that your best food is egg, yet detest its maker, the chicken. This is my story, not the warped headline ascribed to me by the newspaper.
END
