From ADEBISI ONANUG, The Nation
LAWYERS: INEC Chief can’t be sent on leave
Speculation is rife that Independent National Electoral Commission (INEC) Chairman Prof Attahiru Jega may be sent on pre-retirement leave this week. Will it be legal for President Goodluck Jonathan to do that? No, say lawyers, who argue that Jega is not bound by civil service rules.
DURING last month’s Presidential Media Chat (PMC) Dr Goodluck Jonathan denied that there were plans to send Independent National Electoral Commission (INEC) Chairman Prof Attahiru Jega on terminal leave. Despite his denial, the issue keeps popping up.
Last Thursday, the All Progressives Congress (APC) senators raised the alarm about a plot to force Jega on terminal leave this week.
The caucus said the plot to send Jega away before the rescheduled March 28 presidential election was being orchestrated by some members of the ruling Peoples Democratic Party (PDP) and others in high places.
It said those behind the scheme intended to serve Jega a letter from the office of the Head of Service of the Federation, directing him to proceed on leave.
The senators said the President lacks the power to remove Jega under any guise without the Senate’s consent.
The Minority Leader, Senator George Akume, told reporters in Abuja that the plot would be resisted.
Akume, who described the plot as unwarranted, said: “We oppose the removal (of Jega) because it is criminal, illegal and unconstitutional.”
The handwriting has been on the wall that PDP is no longer comfortable with Jega conducting the general elections. The party, it is believed, is bent on removing him before the March 28 presidential and National Assemblies the elections.
Akume referred to an Office of the Head of Service of the Federation’s memo dated August 11, 2010, titled: “Re: Request for clarification on pre-retirement leave”, which states the categories of officers involved in pre-retirement leave.
Paragraph two thereof states: “I am to further inform you that paragraph 1 of the Circular clarified that the content of the circular is only applicable to core officers who run their Civil Service to retirement at thirty-five (35) years of service or sixty (60) years of age and not for a definite tenure as is the case under reference.”
Akume noted that terminal leave is only applicable to core civil servants who retire after 35 years of service or 60 years of age and not for those who have a definite tenure as in Jega’s case. He said Jega could only be removed, if he had done anything to warrant such action – with the consent of two-thirds majority vote of the Senate.
Does the President have powers under the constitution to remove Jega or ask him to proceed on terminal leave? Section 157 of the 1999 Constitution as amended states: “(1) Subject to the provisions of subsection (3) of this section, a person holding any of the offices to which this section applies may only be removed from that office by the President acting on an address supported by two-thirds 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.
“(2) This section applies to the offices of the Chairman and members of the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Federal Character Commission, the Nigeria Police Council, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission and the Police Service Commission.”
Activists oppose bid
Anthony Cardinal Okogie and other prominent Nigerians have condemned the plot.
Okogie said: “If he is not due or not meant for terminal leave, which then would be an illegal move, then the court will have to look into it. Prof Jega has his fundamental human right. If he is not meant to be on terminal leave, then he can fight for his fundamental human right.”
Activist lawyer, Prof. Itse Sagay (SAN) said it would be rash and irresponsible of the government to remove Jega.
“If they do that, they will scuttle the election and that will slide the nation into a political and constitutional crisis.They should leave things the way they are. The polity is not owned by one person. It is owned by all of us,” he said.
Retired Police Commissioner Abubakar Tsav also feared that forcing Jega out “will create a lot of problems. If Jega conducted elections in other states very well, especially Ekiti State and the PDP hailed him, why are they scared about this?” he said.
“Any attempt to remove him will create confusion in the country. It will make the international community to see the country as unserious. In fact, it appears the ruling party is scared of General Muhammadu Buhari’s popularity.”
Lagos lawyer, Festus Keyamo, said of the alleged plot: “First of all, Prof Jega is not subject to civil service rules. So, it will be wrong to send him on terminal leave based on civil service rules. Second, this would be the second brazen attempt to destroy the sanctity of the forthcoming elections, the first one being the postponement of the election, and this would be the second brazen attempt. And it will be a second one too many.”
A constitutional lawyer Fred Agbaje berated Federal Government for not debunking the rumours which, according to him, has been flying around for over a month.
“The citizens are justified in their perception of the intention of the government to remove Jega under the guise of terminal leave. It has grave implications for the country. The fears are justified going by the antecedents of the government at denying things of this nature or matters that bother on national interest.”
But the supervising Minister for Information, Edem Duke, said the government is not planning to remove Jega before the elections, adding that he would leave office in accordance with laid-down service rules.
Duke said: “On the issue of the INEC chairman, I align myself with what the president said that he has no plan to sack the INEC chairman. That is not to say that if it is time for the INEC chairman to naturally exit his office, then the natural course of things will not take place.
“It is like talking of a civil servant who has done 35 years or achieved the age of 60; we now begin to say that he must not retire or he must retire. I think all of that is in the terrain of the presidency and he has spoken.”
Other lawyers speak
Lawyers agree that the President cannot unilaterally ask Jega to proceed on terminal leave, which amounts to removal. The appointment, tenure and removal procedure of other public servants are not specifically mentioned in the Constitution as in the case of the INEC chair. In other words, say the lawyers, Jega is not subject to the letters of the civil service rules.
They said it would be unconstitutional for the President to ask Jega to proceed on terminal leave without valid reason(s). They said the 1999 Constitution specifically provides that the INEC chair can only be removed if there is evidence that he is unable to discharge the functions of his office or for misconduct.
Besides, they noted that Section 157 of the 1999 Constitution provides that Jega can only be removed by the President with the support of two thirds of the Senate.
Asking him to go on terminal leave before the expiration of his term, they said, equates to removal from office and unless there is evidence that Jega is infirm in mind or body, or has engaged in gross misconduct, he cannot be removed under any guise before the end of his tenure.
A former Nigerian Bar Association (NBA) president, Chief Wole Olanipekun (SAN), said it is unimaginable that Jega would be removed in the middle of an electoral process.
“I do not think the President will do it or even contemplate it. Not at this period.
“Prof Jega’s tenure as INEC chairman is regulated by the constitution and under the same constitution, the INEC chairman is the returning officer for Presidential election. If Jega is sent on terminal leave now, it will amount to sabotaging the already scheduled elections.
“The President will have to nominate another person who will be subjected to security screening. After that the name will be forwarded to the National Assembly for approval and all this cannot be done within the weeks we have to conduct the elections.
“Let us assume they are able to conclude the clearance process. When does the man settle down to plan for election if May 29 is sacrosanct? There are a lot of logistics problem that will be involved and so, I have serious reason to believe that no president will contemplate such a thing at this time.
“The inherent dangers are limitless and if that is done, we should as well forget about holding elections and the May 29 handover date. If May 29 is sacrosanct, INEC chairman’s tenure is sacrosanct. People arguing that it is line with civil service procedure for a public officer who haven’t gone on annual leave should proceed on three months terminal leave should tell us if the President’s Ministers will also proceed on three months terminal leave. I think it is better not done.”
Abuja-based lawyer, Sebastine Hon(SAN) submitted that it would amount to a flagrant breach of the Constitution to force Jega to proceed on terminal leave.
“In the first place, Jega as INEC chairman is not a civil servant but a creation of the Constitution of Nigeria. This, then, removes him from the control, overt or covert, of civil service bureaucrats like the Secretary to the Federal Government or the Head of Service of the Federation. Consequently, neither of these bureaucrats has any scintilla of power to order him around.
“In particular, they cannot lawfully ask him to proceed on terminal leave as being speculated. He should ignore such directive if it is ever issued. Secondly, Jega enjoys a constitutional term of five full years. Unless the procedure for Jega’s removal from office as spelt out in section 157 of the Constitution is scrupulously complied with, upon the reasons for such removal as also adumbrated therein being strictly construed, Jega’s period can only come to an end five years after he was sworn in.”
According to Hon, “It must be borne in mind that section 155 of the Constitution is the federal equivalence of Section 201 of the same Constitution, which has created five-year tenure of office for similar ‘independent’ bodies established for the states.
“The Supreme Court, in voiding the dissolution of the Kwara State Independent Electoral Commission, held in Governor of Kwara State vs. Ojibara (2007) All FWLR (Pt. 348) 864 that the framers of the Constitution deliberately donated a five-year tenure to the members of the Commission – one year more than the four-year tenure of political office holders – ‘with a view to create continuity and stability in the electoral process and governance’ and that membership of that Commission is not meant to ‘change with the fortunes of the political parties in a state.’
It concluded that the conditions stipulated in the Constitution for the removal of members of the Constitution must be strictly complied with and that removal based on ‘the general interest’ of the State or due to change in government policy is not permissible. The Court of Appeal was to strictly follow this decision in Dangana vs. Governor of Kwara State (2011) All FWLR (Pt. 593) 1851, wherein it voided the dissolution before the expiration of their five-year tenure, of members of the Kwara State Judicial Service Commission. See, also, Okungbowa vs. Governor of Edo State (2014) All FWLR (Pt. 753) 1975″.
Hon contended that it would amount to a flagrant breach of the Constitution and a gross abuse of power for anybody to contemplate the removal, by whatever means or name, of Prof. Jega from office. Such move, he said, would send wrong signals to all impartial observers and will definitely, as is already apparent, overheat the system. “This ill-intentioned move must be vigorously resisted by all persons of good will,” he said.
Lagos lawyer Femi Falana (SAN) said since Jega’s appointment enjoys constitutional flavour he cannot be sent on sabbatical or terminal leave. He, however, recalled that his last media chat, the President gave the erroneous impression that he could hire and fire the chairman and national commissioners of the INEC.
“With respect, the chairman of INEC has renewable five-year tenure pursuant to section 155 of the Constitution. The appointment of the chairman of INEC is subject to the ratification of the Senate. Since Jega has declined to resign as demanded by some leaders of the PDP he can only be removed with an address of the President backed by a resolution supported by not less than two thirds majority of the members of the senate.”
To him, there is no basis for the fear of the ruling party over Jega’s neutrality or loyalty. He conducted the 2011 presidential election which won by Dr. Goodluck Jonathan. And he was so returned and declared. Regardless of the fear or anxiety of certain principalities it ought to made abundantly clear that Professor Jega is not a civil servant. His appointment is not at the pleasure of the President or the ruling party.
A member of the Ogun State Judicial Council, Abayomi Omoyinmi said it would be absurd for the President to want to remove Jega. According to Omoyinmi, “Section 157 of the constitution is clear on grounds upon which any Chairman of bodies established by Section 153 of the Constitution which includes INEC may be removed by the President acting on an address supported by two-thirds majority of senate. Such grounds include inability to discharge the functions of the office or for misconduct”.
Said Omoyinmi: “Jega cannot be removed from by the president unless it can be proved that he, Jega has been unable to discharge the function of his office arising from infirmity of mind or body. Jega has not exhibited this neither can any misconduct offence prove so far against him in the course of his duties.
“Any attempt to sack Jega based on terminal leave is illegal and unconstitutional because terminal leave is only applicable to core civil servants under the civil service rules and not definate tenure rule as in Jega’s case. The Federal Judicial Service Commission like INEC is one of the bodies listed under section 153 of the constitution. Can you then imagine if the Chairman of the Judicial Service Commission who is the Chief Justice of Nigeria is told to go on terminal leave before his tenure ends at the statutory age of 70years”, he argued.
A legal scholar Wahab Shittu said Jonathan removing Jega under the guise of retirement leave weeks to the election in which he is a contestant is like a team changing a referee before a football match kicks off.
“My answer to that will be to draw an analogy. The president is a contestant in the forthcoming presidential election. He’s an interested party. If you likened that to two football teams who are competing, can one of the teams just before the game starts decide to send the referee on suspension or on leave?
“The president cannot do that because he is in the race. If the president takes such a measure, it will be seen as a coup against the democratic process and a subversion of the will of the people.
“I want to believe that it is a speculation. It is in the realm of conjecture. It is something that can never happen because the president will not ordinarily toil with the wishes and aspirations of the Nigerian people.
“Jonathan cannot even ask Jega to proceed on leave without getting the support of two-thirds of the Senate. Again, every law derives it’s legitimacy from the will of the people. Nothing has been done by Jega to deserve any such treatment,” Shittu said.
Former Chairman of the Nigerian Bar Association(NBA), Ikeja Branch, Monday Ubani said the President and the ruling party should know that they cannot employ civil service rules that are applicable to civil servants to ask Jega of INEC, whose appointment is tenured, to proceed on any terminal leave before disengagement. He argued that Jega of INEC is not an employee of the President for him to be removed in such a lackadaisical manner.
“My submission is that neither the president nor any of his aides have the legal right to ask him to proceed on any terminal leave and they do not have the right to terminate or sack him without complying with the express provisions of the constitution that created the body of INEC in the first place”.
According to him, the chairman of INEC can only be sacked by the president if has the consent and approval of at least two third majority of the members of the upper chambers(the senate) and the grounds must include that he the INEC chairman is unable to perform his constitutional duties which grounds must be verifiable. The constitution of Nigeria is the supreme law of the land and it binds all authorities in Nigeria including the office of the president,
“In fact the president swore to uphold the provisions of the constitution on the day he was sworn in. The president can be impeached if he refuses, fails and or neglect to uphold the provisions of the constitution. Therefore it is my belief that the president or any other person will not toy with the supreme law of the land by violating any of the sections especially the one that applies to INEC in an election year. The president has stated that he has no reason to tamper with the office of INEC chairman and we echo amen to that statement believing that the president of Nigeria will not lie to his citizens.
He said the consequences of illegal removal of Jega from office will create unnecessary crisis in the country, the end of which nobody can fathom. Every political actor/actress is advised not to stress the foundation of this country which everyone knows is not very strong. Undue stress of the nation’s foundation could be catastrophic.
Former Chairman, NBA Ikorodu, Kazeem Adebanjo, said: “Constitutionally, Jega cannot be sacked just by a stroke of the President’s pen.” He hinged his position on Section 157 of the 1999 Constitution which, he said, prescribed the circumstances under which he can be removed from office. He noted that none of those reasons is applicable in his case. “It, therefore, beats one hollow to hear this rumour. Perhaps the APC predicated its suspicion on the antecedents of the President and his penchant for sidetracking the provisions of the law with impunity.”