Subjecting appointment of Customs CG to confirmation unconstitutional, says Lawyer

Subjecting appointment of Customs CG to confirmation unconstitutional, says Lawyer

Sunday, June 4, 2017 6:10 pm


Senate Chambers

Jethro Ibileke/Benin

A retired military General, Idada Ikponmwen, has faulted Nigeria’s Senate on the recently passed Bill which subjects the appointment of Comptroller-General of Nigeria Custom Service to its confirmation.

The retired General who now practices law in Benin, Edo State, kicked against the new Bill which was passed on June 1, during a chat with journalists over the weekend.

Tagged: “A Bill for an Act to Repeal the Customs and Excise Management Act, to establish the Nigeria Customs Service, reform the Administration and Management of Customs and Excise in Nigeria,” was passed following the adoption of the report of its Committee on Customs, Excise and Tariff.

According to the Senate, the Bill consolidates into a single reference document, the NCS legal authority which is scattered in multiple enactment, and to bring the Customs and Excise Management Act (CEMA) 1958, in line with modern day reality and international best practices.

While making it mandatory for the President to appoint the Comptroller-General from officers within the Customs Service, the Senate also scrapped the Governing Board of the Service and replaced it with the NCS Commission.

The Commission, would be headed by a Chairman, who must be either a retired Comptroller-General or Deputy Comptroller-General, would also be appointed by the President for a period of four years.

The appointment of the Chairman of the Commission is also subject to confirmation by the Senate, with the tenure renewable once.

But reacting to the enactment of the Bill, Ikponmwen, a notary public, said the Senate by its action, contravened Section 171 of the Nigeria’s Constitution which vested the right solely on the President to approve the Heads of Extra Ministerial Departments, in which the Comptroller-General of Nigeria Custom Service falls.

“I read in the Newspapers two days ago that the bill on the Custom Service had gone through all the necessary readings and was ready to be processed forward for passage into law.

“From what I gathered from the reading, both from the internet and the newspapers, that this Bill will make the position of the Comptroller-General of Customs one that must be approved by the Senate before it can become effective.

“I was also made aware from these readings that the persons to be appointed by the President must be a person who is in the Custom Service, not from outside.

“The bill also talks about the erstwhile Custom Board which was the Governing Custom Board, will now be abolished and in its place, you have Nigeria Custom Service Committee.

“Let us at this point make it clear that the positions of the Head of Custom, by whatever names you call it, happens to be relating to Extra Ministerial Department. And the appointment to Heads of Extra Ministerial Departments under Section 171 of the Nigeria Constitution, is not one that requires the approval of the Senate.

“So, if exactly they now pass a law to say anybody that should be appointed to that position or to the Board of that organization, must have their approval, it means that they are acting clearly in conflict, out of tune and at variance with the Constitution which is the supreme law, the grand norm of Nigeria.

“The Constitution in Section 171, talks about the appointment that can be made by the President of this country in his position as the head of government. He names ambassadors and those of the kinds in foreign nations. He names permanent secretaries, Heads of Extra Ministerial Departments, personal staff of the President.

“It is the President that nominates and appoints people into these positions. Under this same positions, it is clear that only those of the ambassadors require the approval of the senate.

“So, by implication, other positions named, do not require senatorial approval, and that is the Constitution. So, any other laws now passed, to say that the President alone cannot appoint all other positions mentioned other than the ambassadors’ positions, will be contrary to our Constitution. And if it is contrary to our Constitution , it will be illegal,” Ikponmwen argued.

The retired General noted that for the interest of the nation and strict adherence to the rule of separation of powers, the Senate should avoid undue interference into the rights of other arms of governments.

“The separation of powers doctrine must be made real. It is a very important aspect of our Constitution. Separation of powers which means that the judiciary has its function, the legislature has its function, and the executive has its function very clearly divided.

“And by saying that separation of powers doctrine is the hallmark of our Constitution, we are saying that no arm of the government must be seen to have taken over the work of another arm. And in all this, it is the court that actually has the final say to decide whether an action is within the legislative power of the legislature or an action is properly within the executive arm of government.

“And that if this is not so, the court will strike down any such action either as ultra-vires or inter-vires on the basis of the doctrine enshrine in our Constitution.

“So, looked at from this angle, and recognizing that the President is the person charged with the responsibility for administering executive function of this country and for policy formulation, it then means clearly that the President is the man who has the power to organize, reorganize, shape and reshape any executive arms of  government in Nigeria.

“It is the duty of the President to organize, to streamline and to provide measures for improvement of any executive arms of government.

“Having said that, I want to say clearly that the action of the Senate as evident by the Bill that they have just processed and ready to pass into law, is unconstitutional,” he said.

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