•••As her tenure ends on Tuesday
By Jide Ajani
In March this year several eminent Nigerian lawyers eruditely argued on the legal lawlessness surrounding the attempt to remove Professor Attahiru Jega, the then Chairman of INEC, by praying that he proceeded on compulsory leave. In making a legal case for the implausibility of that proposition, it was argued that “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 removed from that office by the President acting on an address supported by two-thirds ( 2/3) majority of the Senate praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct”.
By this argument, it is clear that removal of an INEC Chairman or any National Commissioner is illegal, without reference to 2/3 majority of the 109 members of the Senate for any other reason whatsoever.
Therefore, by this assertion, the purported letter granting Amina Zakari an early exit and a new mandate at INEC, received from the Head of Service, is a “strange animal” to Nigerian law.
Relatedly, the same legal schools of thought argued that “under the Constitution, the two grounds for removal of a chairman of INEC or any of the members of INEC from office are: (1) inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause); or (2) misconduct.
Neither was adduced in the case of Amina Zakari, making her exit on July 21, 2015, a decidedly legal issue, beyond the Head of service, and outside the ambit of presidential authority without reference to The Nigerian Senate.
The latter position is legally muscular, mainly because as the eminent Nigerian lawyers argued in March, this interpretation does not admit of any other cause, cannot be stretched by any mischievous elasticity of legal hermeneutics, because “the clause ‘any other cause’ under Section 157 of the Constitution, must be construed, esjudem generis”, as lawyers say, hence, “the chairman of INEC or any of the members of INEC can only be removed from office for inability to discharge the functions of their respective office, whether arising from infirmity of mind or body or “any other infirmity”, not to possess or dispossess others of the mandate, or to execute a temporary mandate at INEC for “any other cause” whatsoever.
Flowing from the above, it can be stated emphatically, unequivocally and without any iota of contradiction, that any act, orders, directives etc made by, carried out for or on behalf of INEC, in the name or order of Amina Zakari, after July 21st 2015, shall be illegal, null and void, and of no effect. It shall be construed as a matter or issue, a directive or order that was never made, did not exist and construed in illegality. Hence, It will not be stretching the truth by any scintilla of illumination, that to use the leadership of Amina Zakari as INEC leadership beyond July 21st is to embark on a risky voyage of illegality, fraught with many potential and possible political and administrative misadventures, because the legal mandate of Amina Zakari at INEC, as properly constituted before institutional laws for elections in Nigeria, expires on the night of Tuesday, July 21, 2015.
If any person or group of persons, should therefore embark upon any electoral exercises, delineation of constituencies, registration of voters, or validation of any electoral registers in any constituencies within Nigeria, on the orders of such a defective mandate beyond the 21st of July 2015, such a person or group of persons embarks upon an illegality. The germane question beyond July 21, is not any of the arguments advanced so far in regard to Mrs Amina Zakari, such as, whether she is qualified to be a chairperson of INEC, or ethically acceptable considering her consanguine and other issues that may or may not injure the impartiality and autonomy of INEC; the apt and most significant question is? Where will she derive the mandate to act beyond July 21 and who will accept such an individual with a legal defect as the arbiter of an election?
Admittedly, such a defect is incurable, because no one can embark upon a potentially contestable election by starting on an illegality. This means therefore that the most important question on the minds of all properly constituted authorities in Nigeria, who will not want to impregnate the polity with needless crisis, and who will not want to constipate the Independent National Electoral Commission with the gruel of indigestible illegality, is who will accept such an arbiter for elections?
This is because, as the erudite legal arguments of March 2015 has clearly enunciated, that Section 158 (1) of the Constitution forbids any 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.”
Moreover, it was also well argued, that, the spin that the Interpretation Act says that “he who appoints can suspend” does not apply to The INEC Chairman and members of INEC, who enjoy “security of tenures” under the Constitution, and therefore cannot be manipulatively and grotesquely removed from office before the end of their five-year tenure through any crude euphemism.
In particular, INEC as a body is singled out by the constitution in section 160 that its internal affairs is not subject to the control of the President.
Given the aforestated legal positions of the Nigerian constitution, which any breach of, constitutes an impeachable offence, before the legislature, the question before all Nigerians, as of the moment shall be none other than; who will Amina Zakari hand over to on July 21st 2015? This constitutional order must be carried out, without any vacillation or the nation will proceed to step into a chasm of illegality.