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.”
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, unconstitutional, 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 Mr. President 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.
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, therefore, the following legal truths are manifest:
• 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 and no other statute have covered the field on issues relating to the appointment and removal from office of INEC members;
• 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;
• 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 lapses on July 21, 2015; she automatically ceases to be a member of the electoral body and as such, ceases to occupy the hitherto unconstitutional office of “acting chairman” because she cannot be acting in that capacity from outside the body;
• If the acting chairman is to be reappointed; the constitutionally recognised modes in Section 154(1) should be resorted to all over again; and
• 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” has not been re-appointed and she cannot be conducting the affairs of INEC as a non-member of the body. The situation 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.
