By Ikechukwu Nnochiri
The controversy dogging the appointment of Mrs. Amina Bala Zakari as acting chairman of the Independent National Electoral Commission, INEC, by President Muhammadu Buhari, has continued with legal practitioners sharply divided on the matter. Whereas some of the lawyers who spoke to Sunday Vanguard faulted the appointment which they qualified as an impeachable offence against Buhari, others disagreed, saying the appointment was not in violation of extant provisions of the 1999 Constitution, as amended.
The crisis kicked-off almost immediately after the President announced his choice of Zakari as interim replacement for the former INEC boss, Professor Attahiru Jega.
The appointment came notwithstanding the fact that the tenure of the Commissioner of INEC was due to lapse on July 21.
Jega had, on June 31, a day he bowed out of office, formally handed over to another INEC National Commissioner, Amb. Ahmed Wali, to function in acting capacity pending the recommendation and confirmation of a substantive Chairman for the commission .
However, barely eight hours after, Wali, who is due to retire on August 11, took over, an order from the Presidency directed him to relinquish the position to Zakari, who leading opposition voices have insisted is associated with Buhari.
Jega bowed out with six INEC National Commissioners who were appointed the same day with him- their tenure having expired.
The commissioners were M.K. Hammanga (Adamawa), Dr Ishmael Igbani (Rivers), Prof. Lai Olurode (Osun), Dame Gladys Nwafor (Abia), Mrs Thelma Iremiren (Delta) and Dr Nuru Yakubu (Yobe).
Remarkably, another National Commissioner, Abdulkadir Oniyangi, who was appointed the same time with Zakari, has since July 21, vacated his position, a development that has further raised feathers to the effect that the president may have overreached himself in proclaiming the Chairman of INEC without the consent of the Senate.
How constitutional was the action of Buhari?- This remains the question that has split lawyers.
Specifically, by virtue of the provision of Section 157 (1 &2) of the Constitution, the Chairman or any of the members of INEC may only be appointed by the President acting on an address supported by two-thirds (2/3rd ) majority of the Senate.
By this argument, it is clear that the appointment of an INEC Chairman or a National Commissioner is illegal, without reference to the 2/3rd majority of the 109 members of the Senate for any reason whatsoever.
More so, Section 158 (1) of the Constitution forbids premature removal of an INEC National Commissioner for any reason by the President, by providing that “in exercising its power to make appointments or to exercise disciplinary control over persons, INEC shall not be subject to the direction or control of any other authority or person.”
Meantime, legal luminaries who justified Zakari’s appointment, in acting capacity, include constitutional lawyer, Professor Itse Sagay, SAN, who maintained that the appointment was valid and backed by relevant provisions of the Constitution.
“As far as I know, he (Buhari) has only appointed her as acting chairman. It is in an acting capacity, that is all. She was appointed to act when her tenure was still on and from what I gathered, the tenure was terminated by the appointment. Her tenure, as acting Chairman, is a totally new one and has legal entity.
“The appointment is valid in acting capacity. If she is going to be the Chairman, then, the President has to send her name to the Senate for approval”, Sagay argued.
His position was supported by an Abuja based lawyer, Mr. Oghenovo Otemu, who argued that Section 157 of the Constitution did not cover the appointment of acting Chairman for the INEC, but a substantive Chairman.
He said: “With her tenure having expired, the President was right to have appointed her in acting capacity. If the President wanted, he could have picked anyone from outside the Commission to replace Jega in acting capacity. Mind you, Jega was not even a Commissioner before he was appointed, he came from outside. Since July 21, it could be assumed that Mrs Zakari is someone from outside that has been appointed, just like Jega. I, therefore, think that the Peoples Democratic Party is making a fuss over nothing”.
But constitutional lawyer and human rights activist, Chief Nkereuwem Akpan, maintained that Buhari committed a constitutional blunder in the appointment of Zakari as Acting INEC boss. Akpan said: “There is nothing in the extant and sacrosanct provisions of the 1999 Constitution or any other law, for the time being, in force that supports these sordid and bare faced breaches by the President.
“This President swore to an oath to defend the Constitution and not to flout its provisions. This President rode to power on the promise that he would fight graft and impunity. I hope Nigerians have not been scammed. I hope our dreams of change are not met with nightmares so soon in the day. Whoever is advising the President should be fired because I suspect sabotage.
“Appointment of the INEC Chairman must pass through Senate confirmation and any attempt to circumvent the law is an impeachable offence. Therefore, it is my view that Mrs. Zakari’s appointment is unconstitutional, void and not supported by any law in operation in Nigeria. In the eyes of the law, it is assumed that there no one heading INEC”.
Another lawyer, Mr. Ugochukwu Ezekiel, said the appointment was constitutionally wrong.
“The powers of the President is to appoint the INEC Chairman, not to appoint an acting INEC Chairman. Don’t forget that she was an INEC Commissioner and her tenure has lapsed. As it stands now, she is no longer an INEC Commissioner; therefore, legally, she is a private person and, for her appointment to go through, it must follow constitutional requirements. She must pass through screening and confirmation by the Senate.
“From whatever angle you look at it, the appointment did not follow due process. I am not interested about her relationship with the President, those are emotional matters which has no place in law”, Ugochukwu added.
The PDP had criticised Buhari over the appointment, saying Mrs. Zakari secured the job on the coat-tail of her ‘favourite uncle’ (Buhari).
“The President decided to make a mockery of our laws by appointing his blood relation as the Chairman of INEC and this is the height of nepotism and is indeed the height of corruption”, the opposition party stated. “What is worse than corrupting the electoral process? In fact, we dare say that this is the height of corruption.”
Implying a cobbled arrangement by the ruling All Progressives Congress APC, the PDP spoke through its National Chairman, Prince Uche Secondus.
It said: “We urge Mr. President to take a critical look at the issue of the appointment of Mrs. Amina Zakari as Acting Chairman of INEC for which our party has severally raised some salient issues why she is not suitable for that position. It is incontrovertible that Mrs. Zakari by virtue of her blood relationship with Mr. President cannot preside over the affairs of the Independent National Electoral Commission.”
Meanwhile, a lawyer, Mr. Ebun-Olu Adegboruwa, has gone to court to challenge the constitutionality of Zakari’s appointment.
The plaintiff, in the suit he filed at the Federal High Court, is contending that the appointment was illegal and unconstitutional.
He is praying the court to, among other things, restrain Zakari 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 an order that the President is not entitled to appoint Zakari as acting chairman of INEC and that such appointment is illegal, unconstitutional, null and void”, he stated.
“I am seeking an order that Zakari’s appointment is unconstitutional, null and void and of no effect whatsoever.
“I am also seeking a declaration that effective from July 21, 2015, Zakari ceased to be a National Commissioner or a member of INEC and cannot be appointed as Chairman or acting Chairman of the Commission.” Adegboruwa is praying the court to nullity the appointment of Zakari by the President as the acting Chairman of INEC, being in violation of the 1999 Constitution.
“I am seeking a perpetual injunction restraining her from proceeding with the organisation or conduct or supervision of any election in Nigeria, under her leadership as its acting chairman, in violation of the constitution of the Federal Republic of Nigeria, 1999”.
The lawyer, in addition, wants the court to restrain Mrs Zakari from parading herself as acting Chairman or member of INEC.
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