President Jonathan lacks power to send Jega packing

One needless controversy that seems to have been laid to rest in Nigeria is that

the President lacks the constitutional power to either suspend or sack the Chairman of the Independent National Electoral Commission. He can only do so by acting on an address of at least two-thirds majority of the Senate. What seems to be in dispute now is whether the INEC Chairman can be forced to go on leave ahead of the end of his tenure on June 24, 2015.

The issue of leave and conditions of service defined by Public Service Rules remains debatable for political office holders, many of whom work Monday to Sunday, putting in an average of 15 hours daily. While political office holders like the Chairman of INEC may draw one or two guidelines from the Public Service Rules, they are not in any way bound by them because their structure or system of work is completely different from that of the civil servants or public servants, as the case may be. If the president or governor is a public servant, that means he is also subject to the Public Service Rules and expected to go on pre-disengagement leave!

Section 156 (2) of the 1999 Constitution states that, “Any person employed in the public service of the Federation shall not be disqualified for appointment as Chairman or member of any of such bodies (i.e. INEC, NPC, RMAFC, etc.): Provided that where such person has been duly appointed he shall, on his appointment, be deemed to have resigned his former office as from the date of the appointment.”

This is a clear-cut provision that shows beyond any iota of doubt that the Chairman of INEC IS NOT AND CANNOT BE A PUBLIC SERVANT. Interestingly, the current Chairman of INEC, Prof Attahiru Jega, was once a public servant, being a university lecturer, and bound by Public Service Rules before his appointment in 2010. But once he crossed over to INEC as a political appointee, he ceases to be bound by that code. It is safer to describe the likes of Jega as political office holders rather than public servants in order to avoid any confusion. That is why their remuneration is determined by another political body, Revenue Mobilisation Allocation and Fiscal Commission. They may need a few of the provisions of the Public Service Rules as a guide but are not subject to them. Do we need any constitutional amendments to further make the point clearer?

We cannot solve all our problems through the instrumentality of law. As a matter of fact, it may be argued that the problem of Nigeria is not the absence of law but surfeit of it. The British have no constitution, or to choose the words of M.E. Boutmy in Studies in Constitutional Law, they “have left the different parts of their constitution just where the wave of history had deposited them; they have not attempted to bring them together, to classify or complete them, or to make a consistent and coherent whole.” Yet, the whole world will agree that the United Kingdom is sufficiently governed by law. The fact is, the rule of law and constitutionalism (obedience to constitutional principles) have been so much internalised such that it is safe to say these developed nations are governed by Convention rather than Constitution. That should be our dream in Nigeria rather than the current mischief of engaging unpatriotic lawyers to look for loopholes in every law with a view to exploiting them for selfish ends.

Again, if compliance with the law is a function of the number of pages in the constitution of a country, then Nigeria should have been a role model for the world. Regrettably, however, it is as if the more the number of laws in Nigeria, the higher the rate of lawlessness. Let’s take one example.

The United States introduced the 25th Amendment because they would not accommodate a President that is not as fit as a fiddle. Clause 3 of that Amendment reads: “Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.”

This is the precursor to Section 145 of the 1999 Constitution of Nigeria:   “Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President.”

It is evident we copied Section 145 from the US. But while successive presidents of the US have abided by the spirit and letter of this clause, what happened in Nigeria in 2010 when we had the opportunity to show that we belonged to the civilised world, during President Umaru Yar’Adua’s health crisis? Some of our lawyers – the spin doctors, specialists in casuistry and sophistry – argued that the provision said “WHENEVER”, meaning that it was not compulsory for Yar’Adua to transmit a letter to the National Assembly! And the nation was needlessly heated to the boiling point. History has now come full circle and these elements are at their game once more.

And whereas the constitution of the US contains just a few leaves, that of Nigeria is actually a textbook, verbose and prone to many errors, which some constitutional lawyers and commentators have identified in the past. During that crisis of succession in 2010, I had cause to point to the superfluity-cum-ordinariness of Section 5 (1) and 148 (1) of the 1999 Constitution in the light of the authority of the President that is singular, indivisible and indissoluble (Section 130), insisting that the Vice-President could not discharge the functions of the President without becoming the Acting President. Section 5 (1) was essentially imported from Section 79 of 1960 Constitution and Section 84 of 1963 Constitution, under a parliamentary system.

In the present case, for instance, how can Section 156 (2) of the 1999 Constitution make it crystal clear that the Chairman of INEC is not in the public service but the same constitution proceeds in Section 318 to list “member or staff of any commission or authority…” as being in the “public service of the Federation”?

Notwithstanding some of these incongruities, the redeeming feature is that the constitution is an organic document. It must be read together as a whole. And so the inconsistency in Section 318 above is cured by other provisions in the 1999 Constitution that emphasise not just the independence of INEC but that its chairman is not a public servant and consequently not in any way subject to the innumerable rules that affect workers in Ministries, Departments and Agencies. Here again is Section 158 (1) of the 1999 Constitution:

“In exercising its power to make appointments or to exercise disciplinary control over persons… the Independent National Electoral Commission shall not be subject to the direction or control of any other authority or person.”

The President lacks the constitutional power to direct the INEC chairman to proceed on one week let alone what is termed “a pre-disengagement leave”. Doing so would amount to constructive removal in that he will not be able to discharge the functions of his office during the time of the imposed leave. The framers of the constitution never contemplated such an absurdity. Jega’s tenure is five solid years and the constitution does not make provision for the post of Acting Chairman of INEC.

• Soyombo Opeyemi , a public affairs analyst, wrote in via [email protected]