Kogi And Bayelsa Guber Polls: INEC’s Crisis Of Legitimacy

Taken aback by the spate of criticism of   Mr. President, over his  appointment of Mrs Amina Zakari as ‘Acting Chairperson’ of the Independent National Electoral Commission, INEC, by some of   those who lent their support to his blitzkrieg presidential campaign, there is now a necessitating need to examine the arguments against the appointment to find ways of foraging an eschewal that can mitigate the issue from an administrative and legal gaffe to a mere faux pas – if that were to be possible.

First, some have sought administrative precedence to blindside the sticklers for convention and administrative traditions.

In exploring this option, they readily and conveniently – though ignorantly – point to the contention for the leadership of the Commission between Barrister Phillip Umeadi and Chief Soyebi in June, 2010, after Professor Maurice Iwu’s tenure was illegally cut short by the then President Goodluck Jonathan.

This must have been a very attractive correlation because it also occurred in a transitional period for the Commission, when Umeadi was replaced with Soyebi as the Acting Chairperson.

But these are two separate issues.

Whereas in the case of Umeadi and Soyebi, what the government did was to obey the 1999 Constitution of the Federal Republic of Nigeria, the Zakari instance is the reverse.

Unfortunately, they need to be reminded that when  Soyebi was chosen instead of Umeadi, the Jonathan government merely urged the Commission to comply with the prevailing legal requirement at that time which required that a Chairperson of the Commission shall be 50years and above; and since Umeadi was not 50years then, he was unqualified for the position.

Thus, using that as a pole to lean on is quite unfortunate.

What we have now is a breach of the law and it needs to be pointed out in no unmissable terms.

Then again some have turned to the line of least resistance by pursing hermeneutic   averment made on the matter by legal authorities who stated that the President had the power to appoint an ‘Acting Chairperson’ because of the general provisions of Section 318 (2) of the 1999 Constitution as amended.

This Section provides that “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”.

This must have been a comforting line of thinking but since the intent was not just in finding justification but in also ensuring that such justification was fool-proof, it becomes necessary to subject this position to legal analytical rigour.

Supreme Court intervention

Unfortunately, this line of argument is a general provision, whereas   appointments for electoral Commissioners of INEC has been fettered by a specific provision, namely; that it is subject to the provisions of the Constitution; subject to consultation with the Council of State, and   subject to Senate confirmation.

These explications by Section 154 (1) and (3) of the 1999 Constitution, as amended, are specific provisions. It is generally considered trite in interpretation of statutes that where there is conflict between general and specific provisions of an enactment(in this instance there is none) but assuming there is one, specific provisions shall prevail over general provision as laid-down by the Supreme Court in several cases, a few of which easily come to aid here.

In 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”.

Similarly, in F.B.N. Plc. Vs Maiwada (2013), 5 NWLR (Pt. 1348) 444 at 485 paras. D-E, the Supreme Court said, “The general provision of the law, as in Section 573(1) of the Companies and Allied Matters Act, is subject to the specific provisions of Section 2 (1) and 24 of the Legal Practitioners Act”; and, finally, in Abubakar Vs Nasamu No. 2 (2012), 17 NWLR (Pt. 1330) 523 at 576-577 paragraphs G – A, the Supreme Court said:

“From the facts of this matter, the authorities are galore that where there are two provisions – one special and the other general and both covering the same subject matter – the matter falling within the ambit of the special provisions of the enactment are to be governed by the terms of the special provisions as per paragraph 18(1) as an instance.”

The landmark pronouncements of the Supreme Court in the foregoing clearly weigh down the other arguments and have made the task of defending the President’s appointment more difficult.

Destitute of support from the Constitution and any statute, Mrs Zakari’s few supporters sought an escape route around tenureship.

But what could possibly be advanced to justify extending the tenure of Mrs Zakari without traumatizing the laws and normative attributions of INEC?

A further foraging of the legislative templates for election governance lent no support, because the Constitution is eloquent in specific directive order, unequivocally, stating in Section 155 (1) (c) “that a person appointed into INEC as aforesaid shall remain a member thereof for a period of five years from the date of his appointment”.

Further, Section 157 (1 & 2) of the Constitution also specifies that 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.

That presented more legal mountain climbing for the President because Mrs Zakari was never known before the law to have breached any code, nor was she infirm or unable to discharge her responsibilities. And were these to have been her portion, there was never a 2/3 majority vote by the Senate.

Left with no other possible constitutional exits, it is quite clear that, legally, no justifications can be brought forward to assist the matter of the President’s appointment of Mrs Zakari as an ‘Acting Chairperson’ of INEC.

All explanatory solicitations so far are nothing but huge mountains because the barriers are against the Constitution which is impossible to impeach.

The only other possible exit may then be an urging to Kelsen’s General Theory of Law and State, hoping to enthusiastically persuade citizens that such breach of the Constitution is prompted by a “”doctrine of recognition through necessity”.

But recognition by necessity must be tested by the principles of legitimacy and efficacy, where an application of the doctrine renders a system inoperative because the system cannot be efficacious or legitimate in acting with de facto rather than de jure authority.

The quorum hurdle

Therefore, it is better to revert to the grundnorm, the Constitution.

Further creating an emergency of legitimacy and efficacy are the facts of the Kogi and Bayelsa elections and the contestation of Mrs Zakari’s appointment in court.

Given that her tenure lapsed legally since July 21, 2015, there is no platform to fight for her legitimacy which will limit her moral authority to conduct these elections with the required credibility.
Defending her appointment is increasingly becoming tedious.

The President should do the constitutional needful and expend energy in making new appointments constitutionally, than defending its breach, a fight that will definitely be a mountain to climb.

Then there is the issue of quorum.

The 1999 Constitution, as amended, stipulates in Section 159(1) that Commissions, such as INEC, must have a quorum of one third of its members to take important top management decisions. The National Commissioners of INEC are 13, comprising the Chairman and 12 National Commissioners. One third of 13 is not less than five national commissioners.

Consequent upon the death of Prof. Akinola M. Salau, a National Commissioner at INEC, the number of National Commissioners have gone down to four – even without prejudice to the on-going controversy over the legitimacy of the tenure of the ‘Acting Chairperson’, Mrs. Zakari, a matter that is already the subject of litigation at a federal High Court.

This is because the authentic tenure of Mrs. Zakari, begotten in consultation with the National Council of State and confirmed by the Senate when she was appointed ended on July 21, 2015.

Meanwhile, Section 159 (1) states that “the quorum for a meeting of any of the bodies established by Section 153 of this Constitution shall be not less than one-third of the total number of members of that body at the date of the meeting”.

In the case that the meaning of Section 159 is stretched elastically and crudely, a quorum in the event of a two-member Commission gives the Acting Chairman the latitude to take decisions since one of two is more than one third.

Yet, there are some very important issues for INEC to deal with.

Among the important issues that remain unresolved by the Commission is the delivery of the Permanent Voter Cards (PVC) of a substantial number of voters. Yet there is the uncoordinated and alleged compromise of outstanding litigations in various tribunals on the results of the just conducted general elections.

Importantly, the Kogi State governorship election is slated for November 21, 2015, and INEC, as presently constituted, runs the risk of taking decisions that would be challenged in court. (Vanguard)

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