Appointment of INEC Acting chair: Matters arising

CONTROVERSY continues to trail the appointment of the chairman of the Independent National Electoral Commis­sion (INEC), Mrs. Amina Za­kari. Many political analysts insist that her reappointment did not follow the provisions in the constitution.

There is a consensus among those in this school of thought that the tenure of the acting chairman, Mrs. Bala Zakari expired midnight, July 21.

Under section 155(1) (c ) of the constitution, the duration of the office of both national and resident INEC commissioners is five years. The implication of this is that Zakari’s tenure ended July 21, 2015 at midnight and is expected to vacate office except she is re-appointed by President Muhammadu Buhari in consultation with the Council of States and subject to the confirmation of the Senate. In the first instance, her appointment as a national commissioner was made in consultation with the National Council of State and was confirmed by the Senate and her appointment which is a five-year tenure ended on July, 2015. On June 30, 2015, President Buhari appointed Zakari as Acting Chairman of INEC following the expiration of the tenure of Attahiru Jega, its immedi­ate past chairman. He wrote a letter through the Head of Service which announced the termination of her tenure and her subsequent appointment. This action has generated a lot of controversy and many have questioned President Buhari’s action since the purported termination did not follow laid down constitu­tional provisions.

The procedure for the appointment of a chairman of the electoral body is duly laid out in section 157 (1) of the constitution. The section states that, “Subject to the provisions of the 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 cause) or for miscon­duct.”

Even though the presidency and even Zakari herself have insisted that her appointment followed due process, critical observers argue that none of the laid down provisions in the constitution were fol­lowed and that the contin­ued stay of Zakari in office has put a question mark on President Buhari’s pledge to uphold the rule of law.

A similar case recently came up in Lagos and it involved the Head of Service of the state, Mrs. Folashade Jaji who, acting on a direc­tive from Governor Baba­tunde Fashola, renewed the tenure of five members of the judicial council without approval from the Lagos State House of Assembly. The constitutional provi­sion for the appointment of members of the judicial commission indicates that the renewal of the tenure of any member of the constitution is subject to approval by the Lagos Assembly. The process of reappointment of five members of the commission was not followed according to the constitution and Jaji was summoned by the state lawmakers to explain her actions. When she appeared on the floor of the Assembly, the speaker of the House of Assembly, Mudashiru Obasa, pointedly told her that it was the prerogative of the Assem­bly to approve the reappoint­ment of any member of the commission. Jaji was told that she erred in that regard and she apologized.

Lawyer and public affairs analyst, Martins Agoziem believes that for a position as sensitive as that of the chairman of the electoral commission, there should not arise issues bordering on constitutionality. He said that if the constitutional issues are not addressed, President Buhari would be laying a bad precedence if he clearly disregards the procedure laid down by the constitution in appointing the commission’s chairman.

“This issue should not be treated with levity because President Buhari belongs to a particular party. There are procedures laid down on the constitution that should be followed in appointing the chairman of a sensitive commission like INEC. If he disregards those provi­sions, he would be sending the wrong signals and many would believe that there is an agenda which she is meant to achieve for the President and his party. If such an issue is not addressed, the Presi­dent would be setting a bad precedent, so it would be in his best interest to obey the provisions in the constitu­tion” he said.

Constitutional lawyer and human rights activist, Ebun Olu Adegboruwa insists that Zakari’s appointment was unconstitutional in the first place because there is no provision in the constitu­tion for an acting chairman, insisting that she must vacate the office.

In an interview with Daily Sun, he stated that Zakari’s continued stay in office without following due pro­cess amounts to a breach of sections 153 and 154 of the constitution.

According to him, “The tenure of Mrs. Bala Zakari expired by 12 midnight on July 21 and her continued stay in office would amount to a breach of the consti­tution. Since she has not vacated the office, we have filed a case against her at the Federal High Court asking her to vacate office and the court to restrain her from supervising or organising any elections in Nigeria especial­ly the governorship elections of Kogi and Bayelsa States. Mrs. Zakari is occupying that office illegally. The constitu­tion does not recognise the title of acting chairman of INEC either in section 153 or 154.

“The constitution states that INEC is different from all other agencies of the government and because the word ‘independent’ is added to its name, it has been given the power to carry out its own procedures without interference from the Federal Government. It is because of that independence that the past INEC chairman handed over to a senior commis­sioner before he left, expect­ing the President to appoint a substantive chairman.

“There are two reasons why Zakari cannot be re-appointed as chairman. The first is that her tenure has ex­pired. For you to be a chair­man, you must be a member of INEC either as a national commissioner or a resident commissioner. The mode of appointment of the chair­man is provided for, under section 154 (1) and (2) of the constitution which says the President, in exercising his power to appoint the chair­man or members of INEC shall consult the Council of State and such appointment shall be subject to confirma­tion by the Senate. Therefore, for her tenure to be renewed, these provisions have to be followed. But none of that has been done.

“But if it is eventually done, the question of Zakari’s neutrality then comes into play. She has a relationship with the President and Gov­ernor Nasir El-Rufai of Ka­duna State. The contention in many quarters is that the like­lihood of being influenced and the conflict of interests disqualify her. Those against her reappointment reason that PMB and El-rufai are entitled to a second term in office and may take part in an election that she’ll supervise. Also, they are members of the All Progressives Congress (APC), so there is bound to be a conflict of interest. The contention is that for any free and fair election to take place, the umpire should not have any form of relationship with any political party likely to take part in an election. Unfortunately, Zakari is close to PMB and El-rufai who are members of the APC, so the likelihood of bias when she conducts any election is very high.”

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