In April, Osinbajo had told TheCable, that he was in support of the view of Femi Falana, human rights lawyer, that the executive did not need to send the name of Ibrahim Magu, acting chairman of the Economic and Financial Crimes Commission (EFCC), to the senate for confirmation.
“There is an argument, whether or not we need to present him (Magu) for confirmation and that’s a compelling argument from Femi Falana,” Osinbajo had said.
“His (Falana) argument is that under the constitution, section 171, and 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 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.”
Two months after the statement was made, the upper legislative chamber refused to accede to Osinbajo’s request of confirming Lanre Gbajabiamila as the director-general of Nigeria Lottery Commission.
The senate also resolved to suspend the consideration of all the nominees which the executive sends to it for confirmation, asking Osinbajo to withdraw his statement.
Fielding questions from reporters at the post-FEC briefing, Abubakar Malami, attorney-general of the federation, said the cabinet cannot defend what it did not decide on.
“The fundamental consideration about the alleged statement is the fact that at no point ever did the federal executive council sit down to arrive at the decision in one way or the other as far as the issue of nomination or otherwise is concerned.
“Although the issue came up for discussion at the cabinet meeting since the cabinet was not particularly connected or reached a consensus to maintain a particular position, it cannot begin to defend what it did not decide on,” Malami said.
“So, I do not think it constitutes an issue for the federal executive council to make any clarification about because it has never been considered by the FEC.