THE seeming insensitivity being shown by the President Muhammadu Buhari over the unconstitutional appointment of Amina Zakari is too early an indication of impunity, for a popularly elected government that promised to stop impunity in the conduct of the affairs of state.
Some of us who helped to shape public opinion in his favour, out of shame in the last weeks, have hidden under the excuses that afterall he has no Attorney General to advise him, no Chief of Staff or Secretary to Government. But more disturbing and worrisome is the fact that it appears the Vice President, who is a professor of law and a Senior Advocate of Nigeria, in the absence of an AGF, was not consulted or carried along on a matter bothering on constitutionalism.
Many stakeholders in the Civil Society group joined Nigerians in embracing and celebrating the election of President Buhari through a credible and acceptable election process. It is for the same reason of maintaining credibility and the acceptability of the electoral process that Civil Society as the bridge between the family, the political public and the market, should also pay close attention to the recent process of appointing Mrs. Zakari as the Acting-Chairperson of INEC because of its normative and legal contradictions for the autonomy of INEC and the management of the electoral process.
It is an incontrovertible fact that Mrs. Zakari wrote in her resume, professional work under a consortium previously strongly associated with President Buhari’s late brother in-law and his preferred consultants for his work at the Petroleum Trust Fund-AfriProject consortium. His preference for Mrs .Zakari and his further zeal to reverse the last administrative action of Prof. Attahiru Jega to project that preference, is a deeply injurious action for the independence of INEC as an electoral management institution for several normative and legal reasons.
Normatively, it contradicts the intentions of local, regional and global best practices for the autonomy of an electoral management body to be in the hands of someone with close, undeniable family ties to the appointor; it negates the recommendation of the Uwais Committee on Electoral Reform regarding the autonomy of the Commission, which called for a “review of the composition, administrative autonomy and funding of INEC and State Independent Electoral Commissions (SIECs)”.
Regionally, it breaches the spirit and letter of the African Charter on Democracy, Election and Governance where it is stated in Article 17:1 that state parties shall: “Establish and strengthen independent and impartial national electoral bodies responsible for the management of elections”.
Globally, it contradicts best practices such as Article 3:1a-b of the Venice Convention, which indicated that, the conditions for implementing the principles of electoral heritage of universal, equal, free, secret and direct suffrage shall include: “Procedural guarantees through the organisation of elections by an impartial body, where there is no longstanding affinity and tradition of administrative authorities’ independence from those holding political power”.
Legally, there is no constitutional provision for the office of an “acting chairperson” of INEC appointed from outside the Commission. Thus,any person acting in such capacity can only be delegated by the extant Chairperson, and the constitution has not been amended to give the President such powers, nor the powers to overrule the administrative decisions of an INEC chairperson. Moreover, the only legal way to appoint a National Electoral Commissioner is by reference to the National Council of State and through the approval /confirmation of the Senate, hence, legally, Mrs. Zakari cannot stay one day longer than 21st July 2015 as an appointee in INEC. The letter empowering her to so act emanating from the Head of Service, is ultra vires. There is no provision in Nigerian laws which gives the Head of Service any role in the appointment of a chairperson of INEC. In legal terms, the whole appointment of Mrs. Zakari by the President is a legal fiasco, a constitutional congenital malformation and possibly an impeachable offence if the legislature wishes to exercise diligent oversight. In exercising his constitutional powers, the only legal ambit allowed the President is to accept Prof. Jega’s last order and appoint new National Electoral Commissioners constitutionally.
But more important is the issue of “conflict of interest” and “moral hazard”. Considering her long standing history with the President’s family. Being an experienced National Electoral commissioner, the ethical commitment of Mrs. Zakari is morally suspect for not advising the President altruistically that there are normative standards that will be breached by her accepting such appointment.
Moreover, her not owning up to this risky contradiction is morally hazardous, because accepting the appointment despite the inherent flaws, which were obviously predicted by Prof. Jega who did not hand over to her, has exposed the President’s integrity to doubt and scrutiny.
The flawed appointment of Mrs. Zakari is not a flaw of competence, but a flaw of integrity and impartiality which underpins the autonomy of the Independent National Electoral Commission. It is vital to the credibility of the process outcomes of the core task of the Commission. Credibility and acceptability of elections depends on impartiality as one of its touchstones. Hence, one of the global authorities on the subject of election malpractices Sarah Birch asserts that electoral malpractice can occur in three principal dimensions. One of which is manipulating the design of the institutions governing elections to the advantage of one or more electoral contestants, in violation of the principles of inclusivity, impartiality, openness or transparency such as through gerrymandering, malapportionment, over-restrictive franchise or candidacy regulations, campaign regulations that lead to inequalities among contestants, and lack of observer access to electoral processes.
Such propositions therefore strengthens the suspicions of opposing political stakeholders, who are justified in suspecting unhealthy intentions of political manipulation by the appointment of Mrs. Zakari, given her alleged filial and other relationships with the presidency. The impression being conveyed by the President and those around him is that the President feels more secure in future elections only with Amina Zakari with whom he has family ties , from the same North West zone , and it is further alleged that the President lived in the home of Zakari’s father as a tenant at some point in life.
It is therefore incumbent on the Civil Society, in living up to its responsibility of dissuading a drift towards authoritarian control of the election management body, through the possible erosion of its independence, by probing further the conflict of interest issues raised against the person of Mrs. Zakari, and the wider ramifications the establishment of that fact has for the integrity of President Buhari, regarding the conduct of free and fair elections in the near future in Nigeria.
Mr. Rotimi Adebisi, a member of the Civil Society group, wrote from Lagos.