Constitutional posers trial Zakari’s stay in INEC

Constitutional posers trial Zakari’s stay in INEC Okechukwu Jombo, writes that ,Acting National Chairman of INEC Amina Zakari’s continued stay in INEC is generating moral and constitutional questions For the umpteenth time the continued stay in office of the Acting National Chairman of the independent National Electoral commission INEC Amina Zakari has refused to die down especially now that her tenure as National Commissioner has ended. Lawyers,Politicians,Public commentators have continued to ask what she is doing there in INEC.In response the Deputy Director Publicity Nick Dazang in trying to justify her stay said“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 INEC National Commissioner justified her appointment in an interview by 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’’ All the two speakers have hinged their arguments on the constitution and therefore it is pertinent to know what the book said INEC is established under section 153 of the constitution. And the mode of appointment of the chairman and members is constitutionally provided for under Section 154(1) and (2) of the constitution only. The President, in exercising his power to appoint the chairman or member 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, though, 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 He has gone out of the constitution he swore to uphold and defend, did the president act according to the above provisions of the constitution with respect to council of state made up of former Heads of State and governors of the 36 states as well as Senate confirmation? The duration of office of both National and Resident Commissioners is five years under Section 155(1)(c) of the constitution. UNDER a democracy with a written constitution, unlike British parliamentary system that is unwritten, the power exercisable by any elected or appointed state official like Mr. President must be derived from the constitution; otherwise, it is null and void. That is why section 1 of the 1999 constitution (as amended) declared unambiguously that, “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.” The tenure of Amina Zakari ends on July 21, 2015 and must vacate office except re-appointed in consultation with 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), and not through unconstitutional letter that her tenure ended with Prof. Attahiru Jega on June 30, 2015, having not been appointed the same time. The condition precedent 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. Therefore, the 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, 2015, is unconstitutional, null and void and of no effect. From the foregoing; every step with respect to appointment 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. From the foregoing,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; That 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; and He now opined that the position of the government whereby the acting INEC chairman was asked to consider her tenure ended on June 30, 2015, and yet to hold office as the acting chairman of the body is utterly contradictory and unconstitutional. This is because the “acting chairman” he explained has not been re-appointed and she cannot be conducting the affairs of INEC as a non-member of the body. The situation he insisted is a legal anathema, which must be corrected urgently because every passing day that she sits on that remains a violation of the constitution of the Federal Republic of Nigeria. In the same line another lagos based lawyer Ebun-Olu Adegboruwa has dragged Zakari and the Federal Government to a Federal High Court in Lagos state, a lawyer 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. “I have today, July 22, 2015, filed an action, at the Federal High Court, Ikoyi, Lagos, to declare her appointment as acting chairman of INEC as illegal and unconstitutional, for her to vacate office immediately and for the court to restrain her from presiding over the conduct of any election in Nigeria, including the governorship elections of Kogi and Bayelsa States. “In the originating summons, I am seeking the following orders: “A DECLARATION, that the 1strespondent is not entitled to appoint the 4th respondent as acting chairman of the 3rd respondent, such appointment being illegal, unconstitutional, null and void. “A DECLARATION that the appointment of the 4th respondent as acting chairman of the 3rd respondent is unconstitutional, null and void and of no effect whatsoever. “A DECLARATION that effective July 21, 2015, the 4threspondent has ceased to be a national commissioner or a member of the 3rd Respondent cannot be appointed as chairman or acting chairman of the 3rd Respondent. “AN ORDER nullifying the appointment of the 4th Respondent, by the 1st Respondent, as the acting chairman of the 3rd Respondent, being in flagrant violation of the Constitution of the Federal Republic of Nigeria, 1999. “AN ORDER, directing the 4th Respondent, to forthwith vacate office as acting chairman of the 3rd Respondent. “A PERPETUAL INJUNCTION. restraining the 4th Respondent and the 4th Respondent from proceeding with the organization or conduct or supervision of any election in Nigeria, under the leadership of the 4thRespondent as its acting chairman, in violation of the Constitution of the Federal Republic of Nigeria, 1999. “AN INJUNCTION, restraining the 4th Respondent from further parading herself or holding herself out or functioning as the chairman or acting chairman of the 4thRespondent, in violation of the Constitution of the Federal Republic of Nigeria, 1999.” “Long with this case, I also filed an application for an order of interlocutory injunction to restrain Mrs. Zakari from parading herself as acting chairman or member of INEC and also to restrain her from presiding over or organizing any election in Nigeria, including the governorship elections in Kogi and Bayelsa States. These are the orders that I am seeking in the application: “AN ORDER OF INTERLOCUTORY INJUNCTION. restraining the 4th Respondent from presiding over affairs of the 3rd Respondent or from supervising, organising or conducting any election in Nigeria, in her capacity as acting chairman of the 3rd Respondent, pending the hearing and final determination of this suit. With this oppositions one doesn’t need to be told that Amina Zakari is sitting on a keg of gun powder in INEC Reply, Reply All or Forward | More