by Jide Ajani
When Sunday Vanguard published that some emirs were piling pressure on President Muhammadu Buhari to appoint his alleged god-daughter, Hajia Amina Bala Zakari, as replacement for Attahiru Jega, the then outgoing Chairman, Independent National Electoral Commission, INEC, it sounded like a fairy tale.
But Tuesday, June 30, the action of Buhari, overruling the handover to Ambassador Wali and, instead, replacing him with Zakari, confirmed what many saw as a plot on how the North plans to have a strangle-hold on Nigeria’s electoral process as well as compensation for a loyal ‘daughter’.
INSIDER DEALINGS AT INEC
Midway through the collation of results for the 2011 presidential election, something strange – very strange – and unknown to law, happened. The Independent National Electoral Commission, INEC, suspended the collation of results. The Commission was acting on a petition from the Congress for Progressive Change, CPC. Rightly, and in the estimation of CPC, there appeared to be grounds to suspect that the election was not as free as most Nigerians were led to believe – and this formed part of the case built by the party against Goodluck Jonathan’s Peoples Democratic Party, PDP, when CPC challenged the outcome of that year’s presidential election which had Muhammadu Buhari as its candidate.
Whereas results were trickling in (and there was always an interlude between the announcements of batches of results), INEC, purporting to be acting on the petition from CPC, allegedly technically suspended the process.
The provisions of the Electoral Act never granted powers to INEC to suspend or keep in abeyance the announcement of results of an election that had held or even the contemplation of canceling such an election, but, instead, bestowed such powers on the law courts.
But what most Nigerians did not know was that part of the reasons for the delay in the announcement of the results was the petition from CPC.
Indeed, insiders in the electoral body alleged at that time, and also insinuated the now controversial Mrs. Amina Zakari, known to be very close to Buhari, into what was going on.
In the event of no act of document tampering because of the controversy that her appointment by the President has generated, the petition by the CPC, which the Commission was purportedly acting on, would still be domiciled at INEC.
For President Buhari, who rode on the back of the vigor and determination of Nigerians to engage change, it is not only curious but strangely indecipherable why INEC, which, notwithstanding the mild imperfection but largely reformative actions of Attahiru Jega, should be thrown into this cesspit of controversy.
PRESIDENT, OBEY THE LAW
Under a democracy with a written Constitution, unlike the British parliamentary system where the Constitution is unwritten, the power exercisable by any elected or appointed state official like Mr. President must derive from the Constitution; otherwise it is null and void.
That is why Section 1 of the 1999 Constitution (as amended) declares unambiguously: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons (including Mr. President) throughout the Federal Republic of Nigeria”
INEC is established under Section 153 of the Constitution.
The mode of appointment of the Chairman and members is provided for under Section 154(1) and (2) of the Constitution only. The President, in exercising his power to appoint the Chairman or members of INEC, the Constitution mandatorily, says “the president shall consult the council of state” and such appointment again “shall be subject to confirmation by the Senate.
Now, in writing a letter (which in all ramifications is unconstitutional), through the Head of Service purporting to appoint Amina Zakari in an “acting capacity” as Chairman of INEC, a position that is unknown to the Constitution Mr. President swore to uphold and defend, did the President act according to the above provisions of the Constitution with respect to the National Council of State, made up of former Heads of State and Governors of the 36 states, as well as a Senate confirmation? The direct answer is NO.
TERMINATION OF TENURE BY FIAT IS ILLEGAL
The duration of office of both National and Resident Commissioners is five years under Section 155(1)(c) of the Constitution.
The tenure of Amina Zakari ends on July 21, 2015, and must vacate office except re-appointed in consultation with the Council of State and subject to Senate confirmation.
The removal from office before the expiration of five years can only be done in accordance with Section 157(1) of the Constitution of the Federal Republic of Nigeria; and not through an unconstitutional letter that her tenure ended with Jega on June 30, 2015 having not been appointed at the same time.
The condition precedent for termination of tenure is the inability of the member to discharge his or her functions. The mode of removal is by the President acting on an address supported by 2/3 of the majority of the Senate.
Mrs. Zakari has not been known to law or administrative perception to have erred and, therefore, the funny (yes, funny) letter that stated that her tenure should be deemed as completed with those of Jega and others whereas her tenure comes to an end on July 21, is unconstitutional, null, void and of no effect.
From the foregoing, every step with respect to the appointment of the Chairman and members of INEC is constitutionally provided for in mandatory terms involving critical stakeholders like the Council of State and the Senate. The Constitution does not give room for any form of discretion perhaps because of the sensitive nature of the role of INEC in the sustenance of the country’s democracy.
UNCOMFORTABLE LEGAL TRUTHS
Therefore, the following legal truths are manifest:
Firstly, there is no provision for the position of INEC chairmanship in “acting capacity’’ under the Constitution exercisable by the President.
What exists is the power to appoint a substantive Chairman and members of INEC. The Constitution, and no other statute, has covered the field on issues relating to the appointment and removal from office of INEC members.
So, the error of omission on the part of The Presidency to monitor the tenure of appointees should not be papered over by what is becoming an embarrassing rule of the thumb to terminate such appointee’s tenure unconstitutionally. It is the paradigm of ‘go-slow’ that appears to be creeping-in that should be blamed for this presidential tardiness.
Stemming from the first issue on the sacrosanctity of the Constitution, the letter written to Zakari, requesting her to consider her term of office to have come to an end, is written in violation of Section 157(1) of the Constitution.
There is no implied removal from or elongation of term of office under the Constitution; that letter purporting to terminate her tenure is no more than a flagrant and gratuitous abuse of power.
Therefore, when the term of office of the aberrant acting INEC Chairman constitutionally lapses on July 21; she automatically ceases to be a member of the electoral body and as such ceases to occupy the hitherto unconstitutional office of “acting Chairman” because she cannot be acting in that capacity from outside the body.
If the acting Chairman is to be reappointed, the constitutionally recognised modes in Section 154(1) should be resorted to all over again.
The position of the government whereby the acting INEC Chairman was asked to consider her tenure ended on June 30, and yet to hold office as the acting Chairman of the body is utterly contradictory and unconstitutional.
This is because the “acting Chairman” has not been re-appointed and she cannot be conducting the affairs of INEC as a non-member of the body. The situation is a legal anathema that must be corrected urgently because every passing day that she sits as Chairman of INEC constitutes a grave violation of the Constitution of the Federal Republic of Nigeria which Buhari has sworn to uphold?
The issue of “Acting Chairman” is a routine administrative procedure within such independence executive bodies like INEC wherein the Chairman would request any of his colleagues to stand in for him whenever he travels or even when he is within jurisdiction but indisposed. It does not constitute an “appointment” contrary to the claim of The Presidency as the only authority who truly can make such appointment. What happened on Tuesday, June 30, when Jega handed over to Wali is purely an internal administrative process as an independent body until a substantive Chairman is appointed.
Sunday Vanguard was made to understand that for the five years that Jega spent in INEC, he must have handed-over to a number of his colleagues, National Commissioners, whenever he would be absent without recourse to The Presidency and at no time did The Presidency interfere by appointing an “Acting Chairman” in those instances which is not different from what happened on June 30.
The power of the President to make a substantive appointment of the Chairman and other members of the commission is not at large but rather circumscribed by the Constitution. Section 154 (1) and (2) specifically states that the President, in exercising the power to appoint the Chairman and other members of INEC, “shall” consult the Council of State and “shall” subject such appointment to Senate confirmation.
In this so-called appointment of an “Acting Chairman” unknown to the power of the President, at what time did the President carry out the mandatory “consultation with the Council of State” and “confirmation by Senate” as required by the Constitution for a valid appointment?
If in five years, according to a Director in INEC who pleaded anonymity (except there is any proof of information to the contrary), Jega asked other National Commissioners to act as Chairman whenever he travelled outside Abuja and may never have appointed Amina Zakari. Does that not suggest that there could be a reason(s) for not allowing her to act all through the five years ?
WHAT GOES AROUND COMES AROUND
Because of the conflict of interests based on ethnic, social, religious and political considerations, Nigerians largely disregard the law but prefer sentiments.
When in 2010, there was a clamour for the removal of Professor Maurice Iwu as National Chairman of INEC, Sunday Vanguard openly opposed the proposition because it was not constitutional. Iwu was removed anyway.
But interestingly, this same section of the polity, which forced the unconstitutional sacking of Iwu via a terminal leave, refused to allow same for Jega when it was obvious that the election he claimed he could organize on February 14, 2015 had no logistical or organizational basis as it was clear that Jega’s INEC was not ready. Even the March 28 date – some six weeks from February 14 – had to be passed on because of the looming constitutional crisis that any other postponement would have generated.
But because what is beginning to emerge in Nigeria is that what is right or legal or constitutional today must be contingent on the whims of the people whose interests would be satisfied, the country is gradually sliding.
ZAKARI’S NEW INEC
Funny enough, the ink of the letter purporting to make Zakari acting INEC Chairman has not even dried before she began her mis-steps.
For instance, the committees she packaged last week make a mockery of the need for effective management.
She set up 14 standing committees viz: 1.Appointment, Promotion and Disciplinary Committees (APDC): Hon. Amb. Lawrence Nwuruku, Chairman; Hon. Amb M.A. Wali, member; Hon. Dr. Chris O. Iyimoga, member. 2. Planning, Monitoring and Strategy Committee (PM&SC): Hon. Dr. Chris O. Iyimoga, Chairman; Hon. Prof. M.A. Salau, member; Hon. Amb. M.A. Wali. 3. Information and Voter Education/Outreach and Partnership Committee: Hon. Dr. Chris O. Iyimoga, Chairman; Hon. Amb. M.A. Wali, member; Hon. Amb. Lawrence Nwuruku, member. 4. Health and Welfare Committee: Hon Dr. S. Abdulkadir Oniyangi, Chairman; Hon. Amb. M.A. Wali; Hon. Prof. M.A. Salau, member. 5. Operations and Logistics Committee: Hon. Dr. Chris O. Iyimoga, Chairman; Hon. Amb. Lawrence Nwuruku, member; Hon. Amb. M.A. Wali. 6. Estate, Works and Transport Committee: Hon. Amb. M.A. Wali, Chairman; Hon. Amb. Lawrence Nwuruku, member, Hon. Dr. Chris O. Iyimoga. 7. Election and Party Monitoring Committee: Hon. Amb. M.A. Wali, Chairman; Hon. Dr. Chris O. Iyimoga, Hon. Prof. M.A. Salau, member. 8. Board of Survey and Technical Equipment Acquisition Committee: Hon. Amb. Lawrence Nwuruku, Chairman; Hon. Prof. M.A. Salau, member Hon. Amb M.A. Wali, member. 9. Tenders Board Committee: Hon. Amb. M.A. Wali, Chairman; Hon. Amb. Lawrence Nwuruku, member, Hon. Dr. Chris O. Iyimoga. 10. Legal Services Clearance Committee: Hon. Dr. Abdulkadir Oniyangi, Chairman; Hon. Amb. M.A. Wali; Hon. Amb. Lawrence Nwuruku, member. 11. Board of Electoral Institute Committee: Hon. Amb. Lawrence Nwuruku, Chairman; Hon. Dr. Abdulkadir Oniyangi, member; Hon. Dr. Chris O. Iyimoga, member. 12. Information Technology and Voter Registry: Hon. Amina Bala Zakari, Chairman; Hon. Amb. M.A. Wali, member; Hon. Amb. Lawrence Nwuruku, member, Hon. Dr. Chris O. Iyimoga, member; Hon Dr. Abdulkadir Oniyangi, member; Hon. Prof. M.A. Salau, member. 13. Finance and General Purpose Committee: Hon. Amina Bala Zakari, Chairman; Hon. Amb. M.A. Wali, member; Hon. Amb. Lawrence Nwuruku, member, Hon. Dr. Chris O. Iyimoga, member; Hon. Dr. Abdulkadir Oniyangi, member; Hon. Prof. M.A. Salau, member. 14. Security Committee: Hon. Amina Bala Zakari, Chairman; Hon. Amb. M.A. Wali, member; Hon. Amb. Lawrence Nwuruku, member, Hon. Dr. Chris O. Iyimoga, member; Hon. Dr. Abdulkadir Oniyangi, member; Hon. Prof. M.A. Salau, member.
How many commissioners are left in INEC? A close observation of the committees would show that names were merely recycled and the acting chairman simply chose to chair committees where she can have a grip on the commission.
Jide Ajani is a columnist with Vanguard Newspapers, where this article was first published.
The opinions expressed in this article are solely those of the author.