Following the expiration of the tenure of Professor Atahiru Jega as INEC’s Chairman, on 29th June, 2015, President Muhammadu Buhari swiftly appointed Mrs Amina Bala-Zakari as the Acting Chairman of INEC, thus displacing Ambassador Muhammed Wali, to whom Professor Atahiru Jega, relying on INEC’s ” internal and independent arrangement”, had handed over as his acting successor in office.

Since the President made that appointment, controversy has raged on its legality. In this intervention, we propose to discuss the issues of whether the President of Nigeria can appoint any person to occupy the office of the INEC Chairman ( or persons to occupy the offices of INEC Commissioners), in an acting capacity, when the office of INEC Chairman becomes vacant, pending when the office is filled, as prescribed by law; and whether the person that has been appointed in this instance, Mrs. Bala-Zakari, was legally eligible and qualified to be appointed as INEC’s Acting Chairman, or to be nominated and appointed as a substantive INEC Chairman.

Ordinarily, it would not have been necessary for us to treat the issue of the legal eligibility of Mrs. Amina Bala-Zakari to be appointed as a substantive INEC Chairman, because she has not been nominated for that office, and because a person that is legally qualified and eligible to be appointed to act in an office will probably be legally qualified and eligible to be a substantive occupant of that office.

However, given the tone and intensity of the controversy surrounding the Amina Bala-Zakari’s appointment, it does appear to us that those who are vehemently opposed to her appointment are not particularly worried about her acting chairmanship. They are observably apprehensive about the prospect of her likely transition from being an acting chairman to a substantive chairman.

In other words, there appears to be a belief that Amina Bala-Zakari’s acting chairmanship is probationary, and that if she is able to convincingly demonstrate her capacity for INEC leadership, perhaps by successfully and credibly organizing and delivering any of the forthcoming state elections, ( assuming her acting chairmanship subsists for that long), she may succeed in ” snatching” the INEC Chairmanship, using her acting status as a stepping stone.

Establishment and Composition of INEC

Section 153. (1) ( f) of the Constitution establishes INEC as one of certain executive bodies for the Federation. The composition and powers of INEC are as contained in Part 1 of the Third Schedule to the Constitution. See Section 153. (2). Under the Third Schedule, Part I, Column F, Paragraph 14 (1), it is provided that ” INEC shall comprise the following members – (a) a Chairman, who shall be the Chief Electoral Commissioner; and (b) twelve other members to be known as National Electoral Commissioners, who shall be persons of unquestionable integrity and not less than fifty years and forty years of age, respectively.” Under the said Third Schedule to the Constitution, Part I, Column F, Paragraph 14 (2), it is stated that “there shall be for each State of the Federation and the Federal Capital Territory, Abuja, a Resident Electoral Commissioner who shall – (a) be appointed by the President; (b) be persons of unquestionable integrity; and (c) not be less than forty years of age.”

The Chairman and members of INEC are in the public service of the Federation. See Section 318 (paragraph c) of the Constitution of Nigeria -Interpretation Section- which defines “Public service of the Federation” to mean ” the service of the Federation in any capacity in respect of the Government of the Federation, and includes- member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly”. See also Section 161 of the Constitution, which is the Interpretation Section of Sections 153-160 of the Constitution,( that provides for the establishment and functions of certain Federal Executive Bodies, including INEC), which states that ” in this Part of this Chapter, unless the context otherwise requires – (b) “office” means an office in the public service of the Federation”

Who appoints Chairman and Commissioners of INEC and how are they appointed?

Section 154. (1) of the Constitution provides that except in the case of ex officio members or where other provisions are made in the Constitution, the Chairman and members of INEC shall, subject to the provisions of the Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate. Thus, The Chairman and the Federal Commissioners and State Resident Electoral Commissioners of INEC are appointed by the President, upon the approval of the Senate. Section 153.(3) of the Constitution provides that in exercising his powers to appoint a person as Chairman or member of INEC, the President shall consult the Council of State. Under the Third Schedule to the Constitution, Part I, Column B, Paragraph 6 (a)(iv), the Council advises the President in the exercise of his powers with respect to INEC, including the appointment of its members.

Tenure of INEC Chairman and Commissioners

Section 155. (1) (c) of the Constitution provides that a person appointed into INEC as aforesaid shall remain a member thereof for a period of five (5) years from the date of his appointment. By virtue of Section 156 ( 3), the person can be re-appointed for another last and final term of five years.

Qualification for Appointment

Section 156 of the Constitution provides that “(1) no person shall be qualified for appointment as a member of any of the bodies aforesaid if – (a) he is not qualified or if he is disqualified for election as a member of the House of Representatives, and (b) within the preceding ten years, he has been removed as a member of any of the bodies or as the holder of any other office on the ground of misconduct; (2) 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: 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; and (3) No person shall be qualified for appointment to any of the bodies aforesaid if, having previously been appointed as a member otherwise than as an ex officio member of that body, he has been re-appointed for a further term as a member of the same body.

Does the President have the Powers to appoint any qualified person as an Acting Chairman or Member of INEC?

It is our opinion that the President can, following the expiration of the tenure of the Chairman of INEC or any of its members, or upon the removal of any one of them from office as prescribed by law, appoint a suitably qualified person to act as Chairman or member of INEC, pending the appointment of a substantive replacement into any of such vacant offices, subject to the provisions of the Constitution. The exercise of this power, in our view, is “subject to the other provisions of the Constitution” because there are other vital considerations that must guide such appointments. For example, an INEC Chairman or any of the Commissioners who has served in either positions for two consecutive terms of five years each, may no longer be legally eligible to be appointed to act in the office of the Chairman or Commissioner of INEC respectively.

Under Section 171. (1 & 2) of the Constitution, the President is vested with the “power to appoint persons to hold or act in the following offices, and to remove persons so appointed from any such office; namely – (a) Secretary to the Government of the Federation; (b) Head of the Civil Service of the Federation; (c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad; (d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and (e) any officer on the personal staff of the President. Section 171 (6) of the Constitution then provides that any of the above listed appointments “shall be at the pleasure of the President and shall cease when the President ceases to hold office“.

It is submitted that the power of the President to appoint a person to hold the office of INEC Chairman or act therein is not derived from Section 171. We buttress this submission by referring to the provision of Section 171(2) of the Constitution, under which the Chairman and members of INEC are not listed as public officers that could be appointed and removed by the President, acting alone.

The power of the President to appoint any “suitably qualified” person to act as Chairman or member of INEC ( for an interim period) is derived principally from the Constitution of the Federal Republic of Nigeria, 1999, as amended, and from the Interpretation Act, Cap 123, Vol. 8, LFN, 2004.

Section 318 (2; 3: & 4) of the Constitution provides that ” (2) wherever it is provided that any authority or person has power to make, recommend or approve an appointment to an office, such power shall be construed as including the power to make, recommend or approve a person for such appointment, whether on promotion or otherwise, or to act in any such office; (3) In this Constitution, references to a person holding an office shall include reference to a person acting in such office; and   (4) the Interpretation Act shall apply for the purpose of interpreting the provisions of this Constitution.”

Section 11 of the Interpretation Act, Cap 123, Vol. 8, LFN, 2004, which is incorporated into the Constitution as an interpretation guide, provides that

“(1) where an enactment confers a power to appoint a person either to an office or to exercise any functions whether for a specified period or not, the power includes:

(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;

( b) power to remove or suspend him;

(c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to power to appoint-(i) to re-appoint or reinstate him; (ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested;

(2) a reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be”

We have argued elsewhere (Is Jega now a Civil Servant for the Purpose of forced or subtle Removal ?, Jiti Ogunye, Premium Times, February 12, 2015 that:

” Section 11(1) (b) of the Interpretation Act does not apply to the office of the Chairman and members of INEC, to enable the President, acting singly, to suspend or remove the Chairman of INEC from office. Under the Constitution, the powers to appoint or remove the Chairman and members of INEC to and from office have been specifically and carefully donated to two authorities in two branches of government: the President, the head of the Federal Executive Branch of Government; and the Senate ( the Upper House) of the Federal Legislature. The procedures of appointment and removal are provided. There is no omission or lacunae. There is no mention of (power of ) suspension (of INEC Chairman from office) in the Constitution. This is not because of legislative forgetfulness. If the framers of the Constitution wanted either or both of the two authorities to exercise the power of suspension over the Chairman and members of INEC, in addition to the powers of appointment and removal, that power similarly would have been vested in either or both authorities. Both the President and the Senate are appointing and removing authorities regarding the office of Chairman and members of INEC, and strictly and scrupulously must follow the procedure for removal or discipline therein.”

Our position on appointment or removal of substantive or permanent Chairman and members of INEC remain as articulated in that intervention. Our position vindicates the need to preserve the critical element of security of tenure of office of INEC Chairman and Commissioners, which is the intendment of the framers of the Constitution, who dubbed the electoral body an ” independent” body.

However, the President, acting alone, can legally and constitutionally appoint a “suitably qualified” person to act as the Chairman or a member of INEC, whenever a vacancy occurs, pending when he nominates the person that will occupy and hold the office on a permanent basis and sends such name to the Senate for confirmation. A broad, liberal and purposive reading and interpretation of the provisions of Section 154. (1), Section 153.(3) , and Section 318 (2; 3: & 4) of the Constitution, and Section 11 of the Interpretation Act support the view that the President in appointing a suitably qualified person as INEC Chairman, can act alone , without recourse to the Senate or Council of State.

Based on the foregoing exposition and consideration of the above-cited relevant provisions of the Constitution and Interpretation Act, it is obvious that the President acted legally in appointing Mrs. Amina Bala-Zakari as the Acting Chairman of INEC. Prior to her appointment, she was a serving INEC Commissioner, whose five year tenure was almost at an end, implying that she is deemed qualified under Section 156 of the Constitution to be appointed as either an acting Chairman or a substantive Chairman. Also, being a serving INEC Commissioner, she is assumed under the Third Schedule, to the Constitution Part I, Column F, Paragraph 14 (1), to be a person of “unquestionable integrity and not less than fifty years and forty years of age“.

The President, legally, will also be in order if he were to nominate her as the substantive Chairman of INEC for the confirmation of the Senate, if the President believes she is of “unquestionable integrity and not less than fifty years of age“.

In reaching this conclusion , we have adverted our mind to Section 158 (1) of the Constitution, which provides that “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”; and Section 160 (1) of the Constitution, which provides that (1) Subject to subsection (2) of this section, any of the bodies may, with the approval of the President, by rules or otherwise regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions.”

We submit, however, that these two provisions should not be misconstrued as restricting the powers of the President to appoint an acting chairman for INEC. The provisions are only constitutional guarantees of the independence of the business and operations of INEC. The provisions, as the law currently stands, do not govern the composition of INEC membership, as to warrant or validate the short-lived ” appointment” of an acting chairman or ” hand over” to an ” acting chairman” by a departing Professor Atahiru Jega. Being an appointee and not an appointing authority, Professor Jega, validly, could not have appointed an acting successor. That was an error. It amounted to a usurpation of the powers of the President.

Going by precedents, the head of Nigeria’s electoral body is usually sourced from outside the electoral body. However, the law not only allows a serving commissioner ( member) of INEC like Mrs. Amina Bala-Zakari to be appointed as an acting Chairman, while serving as a Commissioner, but also subsequently as a substantive Chairman. As we stated above, Section 156 (2) of the Constitution permits this when it provides that ” any person employed in the public service of the Federation ( including INEC) shall not be disqualified for appointment as Chairman or member of any of such bodies ( including INEC) : 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

In concluding, may we state that we have no shred of doubt that the objection to the emergence of Mrs. Amina Bala-Zakari as Acting INEC Chairman and possibly INEC’s Chairman is not predicated on legal grounds. We believe that opposition to her acting chairmanship are from three quarters: peers, politicians and misogynists. Out of twelve Commissioners and several resident electoral commissioners, she has been favoured with an acting chairmanship and may well clinch the substantive chairmanship.

This must be a source of worry to other contenders for the office. Also, since her appointment was made by the President who is a politician with partisan interest, without the input of rival politicians in the Senate, whose parties have vested interests in the upcoming elections, that may be superintended by her in her acting capacity, naturally Nigerian politicians will become jittery, and thus will want to shoot her down. And since she is the first woman to be appointed as an INEC head in a male dominated INEC, and in a male dominated political system, chauvinists, resistant to gender inclusion or mainstreaming will attempt to haunt, hound and halt her.

We were, therefore, not surprised, when, upon her appointment, some commentators wondered whether she could withstand intimidation, threats and pressure from politicians and state authorities. “If she were Jega, could she have calmly disarmed Orubebe and the forces behind him, and save the announcement of the result of the 2015 presidential election from planned truncation ?”, some of the public analysts had asked.

Moving forward, President Buhari should exercise his powers to make nominations to fill the vacant offices of INEC Chairman and Commissioners. In making these nominations, certainly, geo-politics ( including the issue of federal character) will be part of the considerations. Indeed, there are people who would point to precedents and argue that ” since a northerner is in power, a southerner or a person from the southern ethnic minorities should be the INEC Chairman”. There could be other considerations. But we hasten to advise that competence, credibility and integrity should be the decisive considerations.

Mr. Ogunye, lawyer, legal commentator, author, and essayist, is the Legal adviser of Premium Times.