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.
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
BUHARI’S LOSS OF INSTITUTIONAL MEMORY
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.
MUDDLING THE ISSUES
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.
WHY ATTEMPT TO POLLUTE INEC?
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.
KOGI AS A POLITICAL TEST CASE
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”.
THE FUTURE OF BAYELSA
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.
WHY THE CREDIBILITY OF INEC MATTERS
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.
THE LIKELY CONTENDERS
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.