Of late, some proxy waters testers, engaged obviously to run a deleterious proposition by the Nigerian public before any move to actualise the proposition, have started a campaign that the Chairman of the Independent National Electoral Commission, Prof. Attahiru Jega, could be eased out of office by President Goodluck Jonathan, even before the holding of the rescheduled general elections on March 28 and April 11, 2015.
According to these “legal pundits,” or more appropriately pundits of illegalities and lawlessness, by March 24, 2015, Jega, who was appointed the Chairman of INEC in June 2010, will be obliged to proceed on his terminal leave, ahead of the end of his tenure in June 2015, marking the end of his five-year tenure. This opinion has become so pervasive that the Media Assistant to the INEC Chairman, Kayode Idowu, has to react to it in the media. During the last chat of the President with the media, President Jonathan also reacted to it, dismissing it as an unfounded rumour. However this “rumour” is not fading. Instead it is gaining ground.
Since this is the era of ‘transformation agenda’ in which senseless rumours and sheer absurdity later transmute into governmental action, where unfounded rumours do become founded actions, we hasten to warn that directing Jega to proceed on a so-called terminal leave to pave the way for the appointment of a new INEC chairman will be illegal and unconstitutional. And so will be his suspension from office pending the establishment of a case of misconduct against him, relying on the Justice Ayo Salami and Lamido Sanusi precedents. The only way Jega can be removed from office before the end of his tenure is through the path provided by the Constitution.
Section 153 (1) (f) of the Constitution establishes INEC as one of certain executive bodies for the Federation. The composition and powers of INEC are as contained in Part 1 of the Third Schedule to the Constitution (See Section 153 (2)). Section 154 (1) of the Constitution provides that except in the case of ex officio members or where other provisions are made in the Constitution, the chairman and members of INEC shall, subject to the provisions of the Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate. Thus, the chairman and the federal commissioners and state Resident Electoral Commissioners of INEC were appointed by the President, upon the approval of the Senate. Section 153(3) of the Constitution provides that in exercising his powers to appoint a person as Chairman or member of INEC, the President shall consult the Council of State. Section 155 (1) (c) of the Constitution provides that a person appointed into INEC as aforesaid shall remain a member thereof for a period of five years from the date of his appointment.
By virtue of the provision of Section 157 (1 &2) of the Constitution, the chairman or any of the members of INEC may only be removed from that office by the President acting on an address supported by two-thirds ( 2/3) 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.
It can, thus, be seen that under the Constitution, the two grounds for removal of a chairman of INEC or any of the members of INEC from office are: (1) inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause); or (2) misconduct.
To avoid any mischievous elastic interpretation that may suggest that the chairman or any of the members of INEC could be removed from office on the ground of inability to discharge the functions of the office arising from “any other cause”, may we state, very emphatically, that the clause “any other cause” under Section 157 of the Constitution, must be construed, esjudem generis, in the light of “infirmity of mind or body”. In other words, the chairman of INEC or any of the members of INEC could only be removed from office for inability to discharge the functions of their respective office, whether arising from infirmity of mind or body or “any other infirmity”. Clearly, “any other cause” cannot be interpreted to mean, for example, failure to distribute Permanent Vote Cards properly or distributing PVCs in an uneven manner all over the country, as it is being alleged.
Section 161 (d) of the Constitution, the interpretation section of the chapter of the Constitution that deals with the federal executive bodies, including INEC, defines “misconduct”. It provides that “unless the context otherwise requires “misconduct” means a breach of the oath of allegiance or oath of office of a member or a breach of the provisions of this Constitution or bribery or corruption or false declaration of assets and liabilities or conviction for(sic!) treason or treasonable felony”. Before the INEC chairman or any of her members can be removed for misconduct, he must be guilty of a breach of the provisions of this Constitution or bribery or corruption or false declaration of assets and liabilities or must have been convicted of treason or treasonable felony.
We submit, by elaboration, that the Chairman or any of the members of INEC, could cease to hold office only by resignation ( since they are not under conscription and cannot be forced to continue to serve if they feel otherwise), incapacity in health to discharge the functions of their offices, death, and removal from office on grounds of misconduct, more or less like a judicial officer, governor or a President. Also, the INEC chairman or any of the members shall “cease to be member if any circumstances arise that, if he were not a member of INEC, would cause him to be disqualified for appointment as such a member.” See Section 155 (2) of the Constitution.
We submit further that the President, acting by himself or through the Secretary to the Government of the Federation, Head of Service or the Attorney-General of the Federation cannot try or discipline (suspend or remove from office) the Chairman or member of INEC for alleged acts of misconduct. Why? Section 158 (1) of the Constitution forbids this by providing that “in exercising its power to make appointments or to exercise disciplinary control over persons, INEC shall not be subject to the direction or control of any other authority or person.” The President will be acting rightly, however, if he formulates and presents his charges of misconduct to the Senate, seeking a removal of the Chairman or any of the members from office, and inviting the Senate to consider the charge and prepare an address, supported by a two-third majority of members of the Senate to enable the President exercise his power of removal. The President, we hasten to caution, cannot remove or suspend the Chairman of INEC from office, and send a request to the Senate to endorse or approve of the removal. A removal comes after a Senate Address, not before. The Senate Address backed by a two-third majority of its members is a condition precedent (not an event subsequent to) to the exercise of power of the President to remove the chairman or any of the members of INEC from office on ground of misconduct It is like the President assenting to a bill duly passed by the National Assembly. The President does not assent to an executive bill before presenting same to the National Assembly for consideration.
As the President illegally did with the erstwhile CBN governor, the President also cannot suspend the chairman or member of INEC on the grounds of misconduct in anticipation of removal from office. The spin that the Interpretation Act says that “he who appoints can suspend” does not apply here. The INEC Chairman and members of INEC enjoy “security of tenures” under the Constitution, and cannot be manipulatively and grotesquely removed from office before the end of their five-year tenure though the crude euphemism of terminal leave.
We now come to the question of whether the chairman and members of INEC are in the civil service of the federation, whose appointment and tenure of office are subject to the Public Service Rules.
Section 169 of the Constitution provides that “there shall be a civil service of the federation.” Section 318 – the Interpretation Section of the Constitution- defines “civil service of the federation”. It says it “ means service of the federation in a civil capacity as staff of the office of the President, the Vice-President, a ministry or department of the government of the Federation assigned with the responsibility for any business of the Government of the Federation”.
In the light of this interpretation, is the INEC Chairman or any member of INEC in the civil service of the federation? The answer is no. Although there may be members of staff of INEC, in her administration, who are, primarily, civil servants, before being seconded or posted to INEC, this does not mean that INEC is part and parcel of the Civil Service of the Federation. Jega, is, therefore, not in the Civil Service of the Federation. The Public Service Rules do not apply to his employment.
Under Section 171 (1 & 2) of the Constitution, the President is vested with the “power to appoint persons to hold or act in the following offices, and to remove persons so appointed from any such office.; namely – (a) Secretary to the Government of the Federation; (b) Head of the Civil Service of the Federation; (c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad; (d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and (e) any officer on the personal staff of the President.
Very instructively, Section 171 (6) of the Constitution provides that any of the above listed appointments “shall be at the pleasure of the President and shall cease when the President ceases to hold office”. Apart from the fact that the Chairman and members of INEC are not listed under Section 171(2) of the Constitution as public officers that could be appointed and removed by the President, we all know that the term of a President if four years, while that of the Chairman and members of INEC is five years; renewable. The Chairman and members of INEC do not hold office at the pleasure of the President and their terms of office do not cease when the President ceases to hold office. Maurice Iwu was appointed by Olusegun Obsanjo, inherited by Umar Yar’Adua and sacked by Goodluck Jonathan, for example.
Ogunye (Legal practitioner)
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