Illegality of Jega’s terminal leaveBy Femi Falana, SAN

Before the simulated postponement of the general election scheduled to hold on February 14 & 28, 2015,
Chief Edwin Clark and some ethnic champions had called for the removal of the chairman of the Independent National Electoral Commission (INEC), Professor Attahiru Jega. On account of the closeness of the group to the Presidency not a few Nigerians believed that the Federal Government had decided to fire the INEC helmsman.

In his last media chat, President Goodluck Jonathan dismissed the rumoured plan to sack Professor Jega. He, however, said that since he appointed the chairman and members of the INEC he could fire any of them at will. Since last week it has been widely reported that Jega may be asked to proceed on terminal leave any moment from.

Terminal leave

Having regard to the national embarrassment which greeted the removal of a former governor of the Central Bank of Nigeria, Mr. Sanusi Lamido Sanusi (as he then was) last year, the attention of the President ought to be drawn to the limit of his powers with respect to the removal of the INEC Chairman.

Pursuant to section 155 of the Constitution, Professor Jega was appointed the INEC chairman by the President on June 24, 2010 following the confirmation by the Senate. Section 155 of the Constitution provides that the INEC Chairman shall occupy the office “for a period of five years from the date of his appointment”.

Since the appointment is for five years certain the term of office cannot be abridged by a pre-retirement leave of three months. As the appointment enjoys constitutional flavour Jega is not occupying the office at the pleasure of the President. In other words, the President lacks the power to hire and fire the INEC chairman. Under section 157 of the Constitution Jega can only be removed from office during his term of office by the President on an address supported by two thirds majority of the members of the Senate.

And the reason for the removal has to be based on evidence of his inability to perform or discharge the functions of the office due to infirmity of mind or body or misconduct. Since the Senate is not likely to endorse Jega’s sack it has been reported that the Presidency is toying with the idea of sending him on terminal leave.

Treatment of civil servants

Jega who is a professor of political science at the Bayero University, Kano was granted leave of absence by his employer, the council of the institution following his appointment as INEC chairman in June 2010. Since Jega is on secondment to the INEC he cannot be treated like a civil servant. Those who have cited the provision of the civil service rules which requires public officers to proceed on a three-month pre-retirement leave have failed to realize that the circular has to be read subject to section 154 of the Constitution which stipulates that the INEC chairman shall hold office for “a period of five years from the date of his appointment”. In the circumstance, Jega’s appointment cannot be validly determined until June 23, 2015.

In Independent National Electoral Commission v. Musa (2003) 10 WRN 1 at 125 the Supreme Court held that “The Civil Service Rules are not a legislation per se as provided by the Constitution nor subsidiary legislation, as they are not made under any enabling Act or Law.

These limitations are emphasized by Rule 01001 of the rules which provides in respect of some categories of public office holders that: ‘… these Rules apply only to the extent that they are not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria in so far as their conditions of service and any other law applicable to these offices are concerned.’

In view of the above categorical pronouncement of the Supreme Court it is indubitably clear that the provision of the Civil Service Rules on three-month pre-retirement leave is inconsistent with Section 155 of the Constitution which provides that the INEC chairmen shall remain in office for “a period of not less than five years”.

In the hierarchy of the superiority of laws the provisions of the Constitution take precedence over other laws or circulars. Indeed, section 1(3) thereof states that any law which is inconsistent with the Constitution is null and void to the extent of its inconsistency.

Tenured appointment

To that extent, the provision of the Civil Service Rules on terminal leave is inapplicable to the tenured appointment of Jega. Even in the case of Mr. Sanusi the Presidency claimed that he was not removed from office but placed on suspension to facilitate investigation.

That was the explanation adduced for removing the governor via suspension without going through the Senate. But with respect to Jega the President lacks the power to investigate, suspend or send him on terminal leave.

To confirm the autonomy of the INEC Section 158 of the Constitution stipulates that in exercising its power to make appointments or to exercise disciplinary control over persons the INEC “shall not be subject to the direction or control of any authority or person.”

Some have cited the case of Professor Iwu who was sent on leave prior to his removal by President Jonathan. Unlike Professor Iwu who had retired from the university when he was the INEC chairman Jega is still in the service of Bayero University.

By the provisions of the Universities Miscellaneous Act the retirement age of university professors is 70 years. Since Jega is 58 he would not retire from the public service until he attains the age of 70 in 2027. In the conditions of service of university staff there is no provision for pre-retirement leave but sabbatical leave, leave of absence, annual leave, casual leave, vacation leave and maternity leave (for female lecturers).

As a public officer cannot go on pre-retirement leave twice. It will be absurd to ask Jega go on terminal leave as INEC chairman in 2015 and then as a retiring professor in 2027. As Jega is not a civil servant the Head of Service of the Federation lacks the power to direct him to proceed on terminal leave. Indeed, the pre-retirement leave applicable in the civil service does not apply to a tenured appointment.

In a circular dated August 11, 2010, titled “Clarification on Pre-retirement Leave” the Head of Service was reported to have said that “I am to further inform you that paragraph 1 of the circular clarified that the content of the circular is only applicable to core officers who run their civil service to thirty-five (35) years of service or sixty (60) years of age and not a definite tenure as is the case under reference.”

Authoritative pronouncement

In the light of the authoritative pronouncement of the Head of Service on the matter it will be preposterous and illegal to direct Jega to proceed on terminal leave in any manner whatsoever.

In the light of the foregoing, if the President goes ahead to sack Jega he would have confirmed that the government has contempt for the rule of law.

The President owes himself a duty to resist the pressures to remove Jega from office on March 24. Changing the leadership of the INEC barely four days to the presidential election is likely to truncate the fragile democratic process. Having commended the INEC for conducting the 2015 General Election and the governorship elections in Edo, Anambra, Ekiti, Ondo and Osun States the President cannot find any justification for the planned removal of Jega.