INEC’S Impartiality: Buhari’s danger signal

President Muhammadu Buhari appears to be in danger of squandering his goodwill on account of his management of the Independent National Electoral Commission, INEC.    His administration’s shambolic first steps regarding the reconstitution of the election management body may set him against the over 12million Nigerians who did not vote for him and a few who are already grumbling about his style and those who is talking behind his back.
Stemming from the unconstitutional termination of the tenure of Amina Zakari by this government, to the whimsical appointment of same as ‘ACTING CHAIRMAN’; the continued vacuum, which the Buhari administration has created in INEC, while the perfidy of the unconstitutionality persists with the preparation for the Kogi gubernatorial election slated for November, to the lack of quorum, many are now wondering whether  Buhari is in full awareness of the dangers his attitude to appointing people to critical and sensitive positions constitutes.
Yet, INEC, just before Buhari’s inauguration, appeared to be the only public institution that was..
able to, one way or another, extricate itself from the malady of corruption and government interference.    This report explains the President  must, as a matter of urgency, disembark from this flight of fancy which makes him believe that he has all the time in the world to make appointments – mind you, his ministers may not be ready until October as the Senate is already on a six-week recess.
By Jide Ajani
There is a world of difference between meaning well and doing well. If you mean well and you don’t do well, you are nothing but a gas bag – Anonymous
When Professor Attahiru Jega, the immediate past National Chairman of  the Independent National Electoral Commission, INEC, wrote to President Muhammadu Buhari about the imminent end of his tenure, the appropriate thing expected from The Presidency was to invite him for a parley. That parley would have enabled  Buhari tap into the well of wisdom, knowledge and know-how of the election management body.  But, Buhari, acting like a President who is overtly overwhelmed by the demands of his office, ignored Jega.    That ignorance was at his peril.
Therefore, on Tuesday, June 30, 2015, Jega had no option but to do what he thought was wise within the context of information available to him, his globular understanding of INEC as well as the sentiments and sentimentalities of the National Commissioners he was leaving behind and, therefore, handed over to Ambassador Mohammad Ahmad Wali.
Jega was in order.
Conversely, Buhari’s inaction of ignoring Jega deprived Nigeria and Nigerians the need for institutional memory that the then INEC boss  would have provided and which would have guided the President in his choice of appointing an Acting Chairman for the electoral management body.
Therefore, having deprived himself of a briefing by Jega, which would have guided him in making some critical decisions about INEC, Buhari has today thrown INEC which, up till June 30, 2015, was seen as a beacon of hope in the sphere of integrity, discipline and incorruptibility, to the vagaries of nepotism, bias, prebendalism and sectionalism.
That Jega chose Wali, above Mrs. Amina Zakari, having worked with them, speaks volumes about that choice.    But Mr. President overturned it – even when his relationship with Zakari was in public domain, exposing himself to the dangers of being perceived as an individual with nepotism running in his veins.
Perhaps, there is a need to help Nigerians understand that even if Zakari were to be the most competent person – if truly she is – for the INEC job, the blunder by Buhari on the constitutional front has, all the more, turned her appointment into a fool’s errand with the dangerous potential of a throw-back of INEC to the murky days of malleability in the hands of a ruling party.
But what are the issues?    Firstly, the Head of Service’s letter, terminating the tenure of Zakari, was illegal.
The duration of office of both National and Resident Commissioners is five years under Section 155(1)(c) of the Constitution.
The tenure of Zakari ended on July 21, 2015, and not June 30, as illegally purported by the Head of Service.
The removal from office before the expiration of five years can only be done in accordance with Section 157(1) of the Constitution;  and not through an unconstitutional letter that her tenure ended with  Jega on  June  30, 2015 having not been appointed at the same time. The 1999 Constitution is clear on that score.
Secondly, the condition precedent for termination of tenure is the inability of the member to discharge his or her functions. The mode of removal is by the President acting on an address supported by 2/3 of the majority of the Senate.
Mrs. Zakari was never known to law or administrative perception to have erred and, therefore, the funny (yes, funny) letter that stated that her tenure should be deemed as completed with those of Jega and others, whereas   her tenure was meant to come to an end on  July 21, 2015, was unconstitutional, null, void and of no effect.  The Constitution does not give room for any form of discretion,  perhaps, because of the sensitive nature of the role of INEC in the sustenance of the country’s democracy.
Add to these the fact that, in appointing any Commissioner, it ought to be done in consultation with the National Council of State  and subject to  Senate confirmation.    Were all these done in respect of Zakari?    No!
That is why Section 1 of the 1999  Constitution (as amended) declared unambiguously: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons (including Mr. President) throughout the Federal Republic of Nigeria”.
INEC is established under Section 153 of the Constitution.
These are the real issues.    Attempting to muddy the waters with allegations of nepotism, while strong, constitute a mere sidekick.    The matter of rule of law and full obedience to and compliance with the 1999 Constitution is at the heart of the matter.
One institution that has been working to shed itself of its inglorious past and indeed has been giving hope to the Nigerian people since 2010, following the appointment of  Jega and a few other well-known individuals with civil society background, is INEC. Though, with room for improvement, Jega never ceased to let Nigerians know that the improvements can only come if the processes are allowed to go through in a constitutional manner. This is one national institution, above others, that all Nigerians,  irrespective of political leanings or association, must protect and preserve to serve the national interest and not the transient interest of any political party, especially the All Progressives Congress, APC, as demonstrative of the puerile arguments and defence being put forward by the party in the face of the obvious and manifest illegality that is being engaged by Buhari.
The current one-man leadership situation in INEC is worrisome, because the laws guiding tenure of INEC Commissioners is five years and widely known.
Some argue that the inaction of  Mr President  is indicative of a poor appreciation of the critical role of INEC as a fundamental institution for sustainable democracy in Nigeria – especially after the Commission stood its ground to ensure  seemingly free and fair 2015 general elections which brought Buhari to power – against all odds, might it be added.
What  Buhari is now attempting to turn INEC into is, therefore, unimaginable given that the current government emerged from elections conducted by the same electoral management body.
Today, the same INEC is in near total paralysis.
It is even more improbable to surmise that Nigerians, particularly well-known vocal elites from civil society, would keep a loud silence that is suggestive that no wrong can be done by the current government. There are those who argue that this silence, in the face of an erosion of the most fundamental pillar of democratic governance, may be in anticipation of favours from government. This contention is being asserted in the light of arguments by some sections of civil society to justify the ill-advised appointment of an “Acting Chairperson” for the Commission by The Presidency, without constitutional backing by elevating a “general” interpretation provision over and above a “specific” provision of the Constitution despite the Supreme Court’s repeated declaration, particularly in the Adedayo Vs PDP (2013), 17 NWLR (Pt. 1382) 1 at 95 paragraphs B-C; the Supreme Court had this to say: “The law is well settled that a specific provision prevails over and above that which is general”.
Furthermore, Section 318(2) that some lawyers are hiding under to encourage a breach of the Constitution is not helpful to their position because it says: “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”.
If the context referred to is one in which the appointment process begins and ends with the President, without recourse to any other authority, the above provision applies.
But in this instance, Mr President  does not have the power to “approve” such appointment but can only “recommend” while the Senate alone has the power to “approve” or “confirm” such appointment after a mandatory consultation with the National Council of State as stipulated in Section 154(1) and (3) of the constitution. In the extant context, the President does not have both the power to “recommend” and “approve”. The Constitution deliberately insists upon the exercise of plurality of power in the appointment of the Chairperson of INEC because of the necessity that all stakeholders should have a say in who arbiters political contests.
Thus, the paralysis of INEC should not have happened under a regime that is a beneficiary of a constitutionally constituted INEC that conducted the 2015 elections. Could it be contemplated that INEC would not conduct election to the office of President and governors whose tenure would end usually by May 29 after every four years? If just to constitute the body the nation is observing this unbelievable situation, what would be the fate of INEC in the area of funding?    Or would the nation be told to wait for Mr. President to fund INEC at his convenience?
Added to this mosaic of political quandaries, the political stake of the imminent Kogi and Bayelsa elections have crept up to pyretic levels as uncertainty pervades the leadership question at the nation’s electoral management body. With profound economic, geographic and politically strategic issues underpinning the elections in both states, the issue of who acts as a credible umpire for the elections has become the subject of intense concern by politicians from all the major political parties. A win or loss may signal an ebb or resurgence in the fortunes of both major parties, which may have signature effects on other elections that may be conducted further down the line such as in Edo and Ondo States.
Given such stakes, all parties are keen to debate the status, acceptability and competencies of the appointees of INEC in the Senate.
Furthermore, the coming elections may be an opportunity to test the sort of political ambiance the ruling party is prepared to create and promote to sustain the gains of the 2015 general elections, given the largely adversarial quibbling that characterised the contest for legislative positions at the National Assembly which threatened to fissure the party along its primogenitorial political components.
It may, therefore, be an opportunity to heal the wounds as a common group with common interests or to deepen it with narrow interests prevailing in support of diverse candidates in the primary elections. Such fears are heightened by the fact that Kogi is considered an integral part of the Middle Belt or the  North Central Zone.
Already there are over 25 candidates running for nomination as gubernatorial candidates of APC in the state. In the first instance, any candidate for the election must have the full backing of the party and is strictly at the mercy of the party structures. The party will constitute the panel that will conduct the nomination and recognize the emergent candidate as sponsor with INEC, a very different process from the National Assembly elections.
For the main opposition party, the Peoples Democratic Party (PDP), the election offers an opportunity for reinvention, given some changes in its national leadership structures and the opportunity to test the ruling party’s claims at the center on matters of free, fair and credible election – one widely acknowledged achievement of former President Goodluck Jonathan. Also, it is likely to become one of the most viable states in Nigeria with the right leadership. In economic terms, the state should be one of the national economic jewels, because it has over 30 mineral deposits, possible oil and gas deposits along the Anambra oil and gas basin; it also has confirmed vast deposits of iron ore that may become one of the highest earners, if derivation from extractive minerals is made to reflect on the state revenues as proposed by the National Conference resolution. Additionally, the state has rail and road networks linking most parts of the country which can make it the hub of the national economy with integration of its road, waterways (it is a confluence point for Nigeria’s two biggest rivers) and possible cargo airport infrastructure.    With such economic advantages, it is a state that may rightly be called “the sleeping giant”.
In the same way, Bayelsa State is like a small giant that is only just rising up from its slumber. It harbors the oldest point of commercial oil and gas exploration in Nigeria and still hosts a significant amount of oil and gas activities; but,  more important, is its untapped maritime potentials, a sector that is self-sustaining and in which its people have a natural seafaring flare. Aside from the economic stakes, Kogi shares borders with Edo and Ondo States. Political events in Kogi may, therefore, have diffusionary impacts in both states, just as Bayelsa may have ripple effects in Edo, being a South-South state where the political trend may be open for new vistas, given that former President Jonathan Goodluck is no longer on any of the political ballot calculations that had impacted South-South leanings in recent elections.
Under these untested political dynamics, the role of a national electoral umpire with credibility, and unquestioned legitimacy becomes a very important ingredient if the electoral process must meet an acceptable national benchmark at the levels of the last regime, as well as international standards of electoral integrity. Hence, Nigerians are looking forward to  Buhari’s commitment to acceptable democratic practices in these early elections, as attempts to hijack or capture the leadership of INEC by the new government, in its postnatal stages, may send the very wrong signals to the international community, a costly public relations gamble for a government that is struggling to find internationally friendly markets for its one-commodity dependent economy.
With such issues to consider, the names of possible Chairpersons have been tested in the media, but among the names that have been mentioned in the media, only a few may likely meet the general expectations of Nigerians, going by public reactions and comments about these  individuals for consideration. Among them is Justice Uwais, who chaired the Electoral Reform Committee under President Umaru Yar’Adua’s regime that recommended the critical electoral changes, some of which have turned the electoral process around.
However, some have given his age, nearing 80 years, as a hindrance given that the job of an umpire is a very high pressure job, the dynamism of the electoral arena and the strain demanded of the job holder. In fact, many argued that the death of Prof. M. Salau, a National Commissioner of INEC, is not unconnected with the age of the man who was also above 72 years, because, for the short period he was in INEC before the election, he was always sleeping in front of media cameras. For Uwais, some have also added that the alleged security issues surrounding his son’s association with the terrorist organization, ISIL, may be an unwanted distraction that the office can do without, given the United States’ renewed relationship with Nigeria – just as Zakari’s close, very close association with Buhari is a serious signal for bias.
Other names that have been prominently mentioned include, but are not limited to Professor Abubakar Momoh, a prolific researcher appointed by Jega as the current Director General of INEC’s Electoral Institute. He is, however, alleged to have familial links with a prominent APC leader and former CPC Chairman, and spokesperson for Buhari’s media and publicity campaign council under the All Nigeria Peoples Party (ANPP), Mr Tony Momoh, who is his elder brother. Mr. Momoh, a former Lagos State University (LASU) lecturer, it was believed, was helped into INEC because of his familiarity with the former INEC Chairman from his days of activism, and was once reportedly beaten up by political supporters of a party, who accused him of posing as an election observer while actually fronting for ACN in an Ido-Osi polling unit, during an election re-run in Ekiti State.
He narrowly escaped death as he was almost lynched for allegedly being an ordinary election observer for ACN. But the discount he suffers is the alleged filial relationship with Momoh, a  former chieftain of CPC, who is a  very close friend  of  Buhari.
Other names that have been mentioned for the INEC top job include  Professor Olurode, a former National Electoral Commissioner in charge of the Electoral Institute who has been involved in several difficult national election assignments. His chances are considered bright mainly because he is from the South West, one of the regions that may be considered for the appointment.
The renown  activist is believed to be independent-minded and experienced at the task. Justice Ayo Salami, a  former President of the Appeal Court, is also being mentioned as a possible candidate, but has also been ruled out by some commentators who insist that the accusation of partisanship which characterised his last days in office was incompatible with another assignment as an electoral umpire. Some other names that have also been mentioned include  one Barrister Mike Igini who had been Resident Electoral Commissioner in Cross River State and was redeployed to Edo State after his tenure in Cross River.
He is known to be strict, fearless and courageous. He  conducted the last general elections in Edo State as the REC.      That was the only state in the South-South and South-East where Buhari was only able to muster enough electoral support to give him well over 46% beyond the minimum 25% required by the Constitution in the presidential election, just as both the APC and the PDP shared senatorial and federal seats in a well contested election, an outcome that made observers to consider his conduct of the elections as an even-handed contest.
Also on the list of names under consideration are Barrister Olisa Agbakoba, human rights campaigner and civil society leader who has a long history of public advocacy for democracy.    His contributions during the struggle to enthrone the democracy that is today being enjoyed are  invaluable and the records are there.    His name was considered in 2010 before Jega clinched the position. Mr Ishmeal Igbani, a former National Electoral Commissioner, and Engr. Nuru Yakubu, also a former National Electoral Commissioner, have also been listed among  the big contenders.
However, after the controversial 30,000 polling units PUs  saga in which Yakubu  played a frontal role before the whole agenda was dumped by Jega, his choice is likely to once again pitch the nation’s political stakeholders on a collision path along the North/South strain – in sharing the 30,000 PUs, the North got over 21,000 while the South got just a little over 8,000. His choice, it is argued by some commentators, would signal a crisis of regional tension. In particular, stakeholders from the South-West and South-East may be particularly vocal in resistance because the South-West states were allocated very few number of PVs compared to war-ravaged areas of the North East which got more  and the South East got less PVs as a region than the Federal Capital Territory, a development the South-East politicians considered insulting.
However, given the fear that some have expressed in some political quarters that recent appointments to such sensitive posts have created suspicions of nepotism, it is questionable if others on the list will be able to compete with Mrs. Zakari and Momoh for the position.
This is believed to be a matter of concern to Nigerians and the international community, particularly the United States  and the European Union, whether there might not be a regression from what the last government of Jonathan achieved with the appointment of  Jega outside the circle of his family ties, friends, party and even his region of South-South that was applauded by Nigerians.    Many question what would have been the outcome of the 2015 presidential election if  Jonathan had appointed an Orubebe as INEC Chairman, or junior brothers of his political allies, or a very known close ‘sibling’ as Buhari has done now with  Zakari’s appointment as “Acting chairman” unknown to the Constitution?
How could it be explained to the world that, at the time of this report, INEC can no longer function due to its inability to form the required quorum as directed by section 159 of the Constitution and that the Commission has commenced preparation for the Kogi, Bayelsa and even the 2019 general elections, because the government cannot constitute the Board of INEC? Given the fecund criticism that followed the appointment of Mrs. Zakari, whose tenure effectively and constitutionally expired on July 21, 2015, and is yet hanging around INEC loosely as an “Acting- Chairperson “, it appears the new government may have begun to squander its goodwill and democratic credentials so early in the day?
Buhari must mean well and be seen to be doing well before he allows his administration to be wrongly profiled because of perception challenges.