INEC: A gamble with integrity?

THE seeming insensitivity being shown by the President over the unconstitutional appointment of Amina Zakari is too early an indication of impunity, for a popularly elected government that promised to stop impunity in the conduct of the affairs of state.

Many stakeholders in the civil society joined Nigerians in embracing and celebrating the election of President Muhammadu Buhari through a credible and acceptable election process. It is for the same reason of maintaining credibility and the acceptability of the electoral process that the civil society as the bridge between the family, the political public and the market, should also pay close attention to the recent process of appointing Mrs Zakari as the Acting Chairperson of INEC because of its normative and legal contradictions for the autonomy of INEC and the management of the electoral process.

Mrs Zakari wrote in her resume, professional work under a consortium previously strongly associated with President Buhari’s late brother in-law and his preferred consultants for his work at the Petroleum Trust Fund – AfriProject consortium. His preference for Mrs Zakari and his further zeal to reverse the last administrative action of Prof. Jega to project that preference, is injurious for the independence of INEC as an electoral management institution for several normative and legal reasons.

Normatively, it contradicts the intentions of local, regional and global best practices for the autonomy of an electoral management body to be in the hands of someone with close ties to the appointor; it negates the recommendation of the Uwais Committee on Electoral Reform regarding the autonomy of the Commission, which called for a “review of the composition, administrative autonomy and funding of INEC and State Independent Electoral Commissions (SIECs);” Regionally, it breaches the spirit and letter of the African Charter on Democracy, Election and Governance where it is stated in Article 17:1 that state parties shall; “Establish and strengthen independent and impartial national electoral bodies responsible for the management of elections.” Globally, it contradicts best practices such as Article 3:1a-b of the Venice Convention, which indicated that; the conditions for implementing the principles of electoral heritage of universal, equal, free, secret and direct suffrage shall include; “Procedural guarantees through the organisation of elections by an impartial body, where there is no longstanding affinity and tradition of administrative authorities’ independence from those holding political power”. 

Legally, there is no constitutional provision for the office of an “acting chairperson” of INEC appointed from outside the Commission, any person acting in such capacity can only be delegated by the extant chairperson, and the constitution has not been amended to give the President such powers, nor the powers to overrule the administrative decisions of an INEC chairperson.

Moreover, the only legal way to appoint a National Electoral Commissioner is by reference to the National Council of State and through the approval /confirmation of the Senate, hence, legally, Mrs Zakari cannot stay one day longer than 21st July 2015 as an appointee in INEC.

The letter empowering her to so act emanating from the Head of Service, is ultra vires. There is no provision in Nigerian laws which gives the Head of Service any role in the appointment of a chairperson of INEC. In legal terms, the whole appointment of Mrs Zakari by the President is a legal fiasco, a constitutional malformation.

In exercising his constitutional powers, the only legal ambit allowed the President is to accept Prof. Jega’s last order and appoint new National Electoral Commissioners constitutionally.

Given the nature of elections and the involvement of the President’s potential and actual interests in elections, possibly in 2019, the obvious conflict of interest that could arise with Mrs Zakari overseeing elections between the President’s party and other parties are too obviously correlated. The appointment of Mrs Zakari is not a flaw of competence, but a flaw of integrity and impartiality which underpins the autonomy of INEC. It is vital to the credibility of the process outcomes of the core task of the commission.

Credibility and acceptability of elections depend on impartiality as one of its touchstones. Hence one of the global authorities on the subject of election malpractices, Sarah Birch asserts that that electoral malpractice can occur in three principal dimensions, one of which is manipulating the design of the institutions governing elections to the advantage of one or more electoral contestants, in violation of the principles of inclusivity, impartiality, openness or transparency such as through gerrymandering, malapportionment, over-restrictive franchise or candidacy regulations, campaign regulations that lead to inequalities among contestants,  and lack of observer access to electoral processes.

Such propositions strengthen the suspicions of opposing political stakeholders, who are justified in suspecting unhealthy intentions of political manipulation by the appointment.

The impression being conveyed by the President and those around him is that the President feels more secure in future elections only with Amina Zakari from the same North West zone with him.

It is incumbent on the civil society to prevent possible erosion of INEC’s independence, by probing further the conflict of interest issues and the wider ramifications on President Buhari, regarding the conduct of free and fair elections in the near future in Nigeria.

It will be sad, if it is established that a democratic President who has benefited from unfettered elections, has deliberately begun his tenure by trying to telescope the possibilities of free electoral contest through spurious appointments to the leadership of the institution responsible for ensuring free credible and acceptable elections. What is currently subsisting in INEC since Prof. Jega’s exit is a democratic deficit to our democracy. Certainly, Nigerians did not vote for the enfeebling of INEC.

•Adebisi Esq. wrote from Oyo State.