Nigeria: Confirmation Of The Appointment Of EFCC Chairman

Last Updated: 22 November 2018
Article by Felix C. Obetta

There has been an impasse within the Nigerian government. This stems from the controversy on whether the President's appointment of Economic and Financial Crimes Commission1 (EFCC) Chairman requires confirmation from the Senate. The Senate had rejected twice President Buhari's nomination of Mr. Ibrahim Magu as substantive EFCC Chairman. This prompted the Vice President Osinbajo to say that Magu does not need the confirmation of the Senate. This has led to standoff between the executive arm of government and its legislative counterpart. While the controversy rages, this is an attempt to provide a legal overview on the issue.


The relevant provision of the law in dispute is Section 2(3) of the Economic and Financial Crimes Commission (Establishment) Act (EFCC Act) and Section 171 of the 1999 Constitution of the Federal Republic of Nigeria as amended. Section 2(3) provides as follows:

"The Chairman and members of the Commission other than ex-officio members shall be appointed by the President and appointment shall be subject to the confirmation of the Senate.2"

The above provision of the EFCC Act is clear and unambiguous. The Supreme Court has in plethora of cases laid the foundation on the canons of interpretation. The Court has held that where the words of a statute are clear and unambiguous, they should be read and understood as they are. The Supreme Court per Rhode-Vivour, JSC in UTOMUDO VS. MILITARY GOVERNOR OF BENDEL STATE & 4 ORS.,3 held that:

"Where the words in a statute are clear and free from any ambiguity they should be read and understood as they are without any embellishment."

In this regard, the demands of Section 2 (3) EFCC Act is not in dispute. The President of Nigeria appoints, while the Senate confirms.

However, there seem to be an issue when the provision of Section 2(3) is juxtaposed with the provisions of Section 171 of the Constitution. The said Section 171 reads as follows:

"171 (1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the President.

(2)The offices to which this section applies are, namely

(a) Secretary to the Government of the Federation;

(b) Head of the Civil Service of the Federation;

(c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad;

(d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated4; and

(e) any office on the personal staff of the President."

The provisions of the Constitution clearly empowered the President to appoint persons to hold offices and act in that capacity and to remove such persons. This power appears to be untrammelled. However, the power is limited when it comes to appointment of Ambassadors, High Commissioner or other Principal Representative of Nigeria abroad, such appointment is subject to confirmation by the Senate (See Section 171 (4) of the Constitution). Apart from this limitation, all other appointment captured under the section is made at the discretion of the President. Section 171(6) of the Constitution provides as follows:

"Any appointment made pursuant to paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office"

It is worthy to note that ministerial appointment does not come under this provision. Specifically, Section 147 (2) of the Constitution made any appointment to the office of Minister of the Government of the Federation subject to confirmation by the Senate.

By virtue of Section 171 (2) (d), the President does not require Senate confirmation in order to appoint Heads of any Extra-Ministerial Department howsoever designated. The question that begs for interpretation is whether the EFCC comes under "extra-Ministerial Department"?

The Constitution did not define "extra-Ministerial Department". The Interpretation Act5 equally did not provide any explanation as to this. Despite this, it could be deciphered from the modus operandi of the government that "extra-Ministerial Department" are government departments which function independently of any ministry. Such extra ministerial departments carry out its duties without any ministerial control or oversight. EFCC operates as an independent department and is not under the control or supervision of any Ministry. EFCC co-ordinates and enforces all laws relating to economic and financial crimes. It has liaison offices in various agencies of the government and financial supervisory institutions that are involved in the eradication of economic and financial crimes. Extrapolating from the foregoing, EFCC is an "extra-Ministerial Department" of the government.

As can be gleaned from the express provisions of the Constitution, the legal draftsman intended that some Presidential appointment be made subject to the Senate's confirmation. In line with this, the draftsman made the appointment of Ambassador, High Commissioner or other Principal Representative of Nigeria abroad and Ministers of the Government of the Federation subject to confirmation by the Senate. If the draftsman had nursed the intention of making some other appointments subject to confirmation by the Senate, he would have gone ahead to state it clearly.

Going by this, it appears there is a conflict between the Constitution and the EFCC Act. While the EFCC Act subjected the President's appointment of EFCC Chairman to the Senate confirmation, the Constitution made such appointment independent of the Senate. In view of the age-long principle of the supremacy of the constitution, the provisions of the EFCC Act as captured under Section 2(3) becomes void to the extent that it is inconsistent with the provisions of Section 171 (2) (d) of the Constitution. Section 1(3) of the Constitution provides as follows:

"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."

In JABIN ONESA OGAGA V. THOMAS E. UMOKORO & 3 ORS.,6 the Supreme Court per Peter- Odili, JSC held thus:

"All existing laws and/or any provision in a state laws which are not in conformity or tend to derogate from the powers of such courts shall to the extent of such inconsistency, be void."

Though from the above, the EFCC Act which prescribed confirmation by the Senate will be void based on the Supremacy of the Constitution, we await the judicial interpretation to finally lay the issue to rest.


In the writer's opinion, the intendment of the legislature in making the appointment of the Chairman of EFCC by the President subject to confirmation of the Senate will be clearly appreciated if the Nigerian milieu is taken into cognisance. The position is quite sensitive and corruption has been an enigma in Nigeria. If the President is allowed to appoint and dismiss at his discretion, this might lead to political witch-hunting and selective fight against corruption. However, the law is the law and cannot be what it ought to be. The President's appointment of Economic and Financial Crimes Commission (EFCC) Chairman does not require confirmation from the Senate.


[1] The Economic and Financial Crimes Commission Establishment Act 2004, mandates the EFCC to combat financial and economic crimes. The Commission is empowered to prevent, investigate, prosecute and penalise economic and financial crimes and is charged with the responsibility of enforcing the provisions of other laws and regulations relating to economic and financial crimes

[2] (2014) 47 WRN Page 1

[3] Emphasis supplied

[4] Emphasis supplied

[5] Cap.I23 LFN 2004

[6] (2011) LPELR-SC.224/2003

Originally published March 4, 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions