OKECHUKWU JOMBO, writes that acting National Chairman of INEC, Amina Zakari’s continued stay in INEC is generating moral and constitutional questions
The continued stay in office of the acting National Chairman of the Independent National Electoral Commission, INEC Amina Zakari has refused to sit well with lawyers and activists who insist that her tenure has elapsed.
Lawyers, politicians and public commentators alike have continued to query her continued stay in INEC long after her tenure expired. The former national chairman, Professor Attahiru Jega, while bowing out handed over to Ahmed Wali as the most senior national commissioner, but few hours later, President Muhammadu Buhari reversed Jega’s hand over and instead handed over to Hajia Amina Zakari as the Commission’s acting national chairman, the first in the history of electoral commissions in Nigeria to have an acting chairman.
The action of the president did not go down well with the opposition Peoples Democratic Party, PDP, who has been kicking, describing the acting national chairman as the president’s daughter.
“Mrs. Zakari who has a strong relationship with President Muhammadu Buhari and a very prominent APC Northwest governor is collaborating with the ruling party to post Resident Electoral Commissioners of its choice to Kogi and Bayelsa ahead of the forthcoming governorship elections in those states.
“President Buhari, in appointing Mrs. Zakari, failed to take into cognizance the moral call to detach himself from the operation of the electoral body thereby completely eroding the independence of the commission.
“We want Nigerians to know that with this appointment, INEC has been stripped of its independence and can no longer command the confidence and respect of the citizens and all other critical stakeholders in the nation’s electoral process.
“We however find it astonishing, discouraging and disheartening that the spokesperson of the President will address Nigerians and lie to the entire citizenry that Mrs. Zakari never had any relationship with the President or an APC Governor in the Northwest. This is the height of deception coming from the respected office of the President of our dear country.
“We ask, is the spokesperson of the President, oblivious of the public fact that the Acting Chairman of INEC was once a staff of Afri-Project Consortium, a company well associated with the President?
“Is he by any means feigning ignorance of the fact that Mrs. Zakari also worked in the past as Secretary of Health and Human Services, Social Development and later, that of Agriculture and Rural Development in the Federal Capital Development Authority, then under a current APC governor of the Northwest?” PDP asked.
However, INEC’s Deputy Director of Publicity, dismissed PDP’s concern arguing that “there should be no controversy over the appointment of the Acting Chairman by the President because in Section 153 to 159 of the Nigerian Constitution, the President has the power to appoint the INEC Chairman subject to ratification by the Senate.
“There is a letter by the Head of Service appointing Zakari as the Acting Chairman pending the appointment of a substantive chairman and this is already in the public domain.”
Also Ambassador Lawrence Nwuruku, a national commissioner in INEC justified her appointment saying, “she is legally appointed by the president with a letter from the head of service to back it up until either a substantive chairman is appointed in her place or she is cleared by the Senate until that happens she is the acting INEC National Chairman.”
INEC is established under section 153 of the constitution. And the mode of appointment of the chairman and its members is constitutionally provided for under Section 154(3) of the 1999 constitution. “In exercising his powers to appoint a person as chairman of the Independent National Electoral Commission, INEC, the President shall consult with the Council of State.”
The opponents of the appointment of Hajia Zakari argue that the president has not fulfilled this part of the constitution. In fact, the constitution never gave room for chairman of INEC to be on an acting capacity.
They argue that the tenure of Hajia Zakari should have ended on July 21, 2015 and any other day she further stays in office is a flagrant violation of the demands of the 1999 Constitution.
Those vehemently opposing her appointment argue that the practice where the Head of Service wrote a letter to Hajia Zakari terminating her appointment as a national commissioner before the constitutional expiration of her tenure, and then reappointing her as the acting national chairman cannot stand because that is not the constitutional requirement for removing a national commissioner of INEC.
To remove a national commissioner of INEC, section 157 (2) states, “Subject to the provision of subsection (3) of this section, a person holding any of the offices to which this section applies may only be removed from that office by the president acting on an address supported by two-thirds majority of the Senate praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.”
Subsection 2 states “This section applies to the office of the chairman and member of the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Federal Character Commission, the Nigeria Police Force, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission and the Police Service Commission.”
So removal from office, before the expiration of five years, can only be done in accordance with Section 157 (1), and not through any letter from the Head of Service of the federation.
From the foregoing, every step with respect to appointment and removal of chairman and members of INEC is constitutionally provided for in mandatory terms involving critical stakeholders like 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.
A legal practitioner, Chief Nwankwo Obuma reeled out what he termed legal truths of what has happened. According to him, “there is no provision for the position of INEC chairmanship in an ‘acting capacity’ under the Constitution exercisable by the President, but power to appoint a substantive chairman and members of INEC.”
The constitution he said and no other statute have covered the field on issues relating to the appointment and removal from office of INEC members. On this note he summed up by saying that the letter written to the “acting chairman” requesting her to consider her term of office to have come to an end is written in violation of Sections 157(1) of the Constitution.
According to him, “there is no implied removal from or elongation of term of office under the Constitution. Therefore, when the term of office of the acting INEC chairman constitutionally lapsed on July 21, 2015; she automatically ceased to be a member of the electoral body and as such, ceased to occupy the hitherto unconstitutional office of “acting chairman” because she cannot be acting in that capacity from outside the body.”
He added that if the acting chairman is to be reappointed, the constitutionally recognised modes in Section 154(1) should be resorted to all over again.
Similarly, another Lagos based lawyer, Ebun-Olu Adegboruwa has dragged Zakari and the Federal Government to a Federal High Court in Lagos seeking the court to remove her from the position because her appointment has ‘expired’.
The plaintiff who wants the court to bar her from parading herself as the INEC boss, said: “on July 21, 2015, the statutory tenure of Mrs. Amina Bala Zakari, as a member or commissioner of INEC, came to an end. She has not been re-appointed by the President upon due consultation with the Council of State and the re-appointment has not been communicated to the Senate for confirmation. Consequently therefore, the presence of Mrs. Zakari in INEC is a constitutional aberration that must not be allowed to continue.”
With the controversies that have trailed the tenure of Mrs Zakari and her preparations towards conducting elections in Kogi and Bayelsa states, has the President not left sensitive constitutional matters open to litigation? Only time will tell.