One needless controversy that seems
to have been laid to rest in Nigeria is
that the President lacks the
constitutional power to either
suspend or sack the Chairman of the
Independent National Electoral
Commission. He can only do so by
acting on an address of at least two-
thirds majority of the Senate. What
seems to be in dispute now is
whether the INEC Chairman can be
forced to go on leave ahead of the
end of his tenure on June 24, 2015.
The issue of leave and conditions of
service defined by Public Service
Rules remains debatable for political
office holders, many of whom work
Monday to Sunday, putting in an
average of 15 hours daily. While
political office holders like the
Chairman of INEC may draw one or
two guidelines from the Public
Service Rules, they are not in any
way bound by them because their
structure or system of work is
completely different from that of the
civil servants or public servants, as
the case may be. If the president or
governor is a public servant, that
means he is also subject to the
Public Service Rules and expected to
go on pre-disengagement leave!
Section 156 (2) of the 1999
Constitution states that, “Any person
employed in the public service of the
Federation shall not be disqualified
for appointment as Chairman or
member of any of such bodies (i.e.
INEC, NPC, RMAFC, etc.): Provided
that where such person has been
duly appointed he shall, on his
appointment, be deemed to have
resigned his former office as from
the date of the appointment.”
This is a clear-cut provision that
shows beyond any iota of doubt that
the Chairman of INEC IS NOT AND
CANNOT BE A PUBLIC SERVANT.
Interestingly, the current Chairman of
INEC, Prof Attahiru Jega, was once a
public servant, being a university
lecturer, and bound by Public Service
Rules before his appointment in
2010. But once he crossed over to
INEC as a political appointee, he
ceases to be bound by that code. It
is safer to describe the likes of Jega
as political office holders rather than
public servants in order to avoid any
confusion. That is why their
remuneration is determined by
another political body, Revenue
Mobilisation Allocation and Fiscal
Commission. They may need a few of
the provisions of the Public Service
Rules as a guide but are not subject
to them. Do we need any
constitutional amendments to further
make the point clearer?
We cannot solve all our problems
through the instrumentality of law. As
a matter of fact, it may be argued
that the problem of Nigeria is not the
absence of law but surfeit of it. The
British have no constitution, or to
choose the words of M.E. Boutmy in
Studies in Constitutional Law, they
“have left the different parts of their
constitution just where the wave of
history had deposited them; they
have not attempted to bring them
together, to classify or complete
them, or to make a consistent and
coherent whole.” Yet, the whole
world will agree that the United
Kingdom is sufficiently governed by
law. The fact is, the rule of law and
constitutionalism (obedience to
constitutional principles) have been
so much internalised such that it is
safe to say these developed nations
are governed by Convention rather
than Constitution. That should be our
dream in Nigeria rather than the
current mischief of engaging
unpatriotic lawyers to look for
loopholes in every law with a view to
exploiting them for selfish ends.
Again, if compliance with the law is a
function of the number of pages in
the constitution of a country, then
Nigeria should have been a role
model for the world. Regrettably,
however, it is as if the more the
number of laws in Nigeria, the higher
the rate of lawlessness. Let’s take
one example.
The United States introduced the
25th Amendment because they would
not accommodate a President that is
not as fit as a fiddle. Clause 3 of that
Amendment reads: “Whenever the
President transmits to the President
pro tempore of the Senate and the
Speaker of the House of
Representatives his written
declaration that he is unable to
discharge the powers and duties of
his office, and until he transmits to
them a written declaration to the
contrary, such powers and duties
shall be discharged by the Vice-
President as Acting President.”
This is the precursor to Section 145
of the 1999 Constitution of Nigeria:
“Whenever the President transmits to
the President of the Senate and the
Speaker of the House of
Representatives a written declaration
that he is proceeding on vacation or
that he is otherwise unable to
discharge the functions of his office,
until he transmits to them a written
declaration to the contrary such
functions shall be discharged by the
Vice-President as Acting President.”
It is evident we copied Section 145
from the US. But while successive
presidents of the US have abided by
the spirit and letter of this clause,
what happened in Nigeria in 2010
when we had the opportunity to show
that we belonged to the civilised
world, during President Umaru
Yar’Adua’s health crisis? Some of our
lawyers – the spin doctors,
specialists in casuistry and sophistry
– argued that the provision said
“WHENEVER”, meaning that it was not
compulsory for Yar’Adua to transmit
a letter to the National Assembly! And
the nation was needlessly heated to
the boiling point. History has now
come full circle and these elements
are at their game once more.
And whereas the constitution of the
US contains just a few leaves, that of
Nigeria is actually a textbook,
verbose and prone to many errors,
which some constitutional lawyers
and commentators have identified in
the past. During that crisis of
succession in 2010, I had cause to
point to the superfluity-cum-
ordinariness of Section 5 (1) and
148 (1) of the 1999 Constitution in
the light of the authority of the
President that is singular, indivisible
and indissoluble (Section 130),
insisting that the Vice-President
could not discharge the functions of
the President without becoming the
Acting President. Section 5 (1) was
essentially imported from Section 79
of 1960 Constitution and Section 84
of 1963 Constitution, under a
parliamentary system.
In the present case, for instance, how
can Section 156 (2) of the 1999
Constitution make it crystal clear that
the Chairman of INEC is not in the
public service but the same
constitution proceeds in Section 318
to list “member or staff of any
commission or authority…” as being
in the “public service of the
Federation”?
Notwithstanding some of these
incongruities, the redeeming feature
is that the constitution is an organic
document. It must be read together
as a whole. And so the inconsistency
in Section 318 above is cured by
other provisions in the 1999
Constitution that emphasise not just
the independence of INEC but that its
chairman is not a public servant and
consequently not in any way subject
to the innumerable rules that affect
workers in Ministries, Departments
and Agencies. Here again is Section
158 (1) of the 1999 Constitution:
“In exercising its power to make
appointments or to exercise
disciplinary control over persons…
the Independent National Electoral
Commission shall not be subject to
the direction or control of any other
authority or person.”
The President lacks the constitutional
power to direct the INEC chairman to
proceed on one week let alone what
is termed “a pre-disengagement
leave”. Doing so would amount to
constructive removal in that he will
not be able to discharge the
functions of his office during the time
of the imposed leave. The framers of
the constitution never contemplated
such an absurdity. Jega’s tenure is
five solid years and the constitution
does not make provision for the post
of Acting Chairman of INEC.
Soyombo, a public affairs analyst,
wrote in via densityshow@
yahoo.com
www.punchng.com/opinion/jonathan-lacks-power-to-send-jega-packing/

Same was said of the CBN Gorvernor But we all know how that went down.

Maurice Iwu was sent on terminal leave 3 months to the expiration of his tenure, he was also an INEC chairman like Jega, what is the difference them when there was a legal precedence.

My take: Though the president has every power to remove Jega now, it will be wrong for him to sack Jega now with two weeks to a very major election, that will send wrong signals globally

luvinhubby:
Maurice Iwu was sent on terminal leave 3 months to the expiration of his tenure, he was also an INEC chairman like Jega, what is the difference them when there was a legal precedence.

My take: Though the president has every power to remove Jega now, it will be wrong for him to sack Jega now with two weeks to a very major election, that will send wrong signals globally

The president don't have power to sack the inec chairman without approval of the senate according to the constitution. Iwu did not contest the decision to terminate his appointment in a court