My published flagship treatise of few days ago, captioned 'Jega's tenure ends on March 24, 2015 by operation of law' provoked a helluva of commendations, as well as contrary opinions. There's also a small minority of fringe partisans who hauled curses and threats against me; and strangely, the Nigerian State. One particular sad, but funny fellow called me 'the new ABN', as in Arthur Nzeribe's (IBB's?) infamous Association for Better Nigeria. Warts and all, I took it all in good grace.
I dedicate this sequel to citizen Yinka, who sent me a well-articulated email with a lot of salient questions. In summary, Yinka advanced a sound thesis that the onset of Jega's terminal leave before the elections may have some adverse impact on the legality or validity of the ensuing presidential election. I consider it a quaint legal question because it flows from the provision of the law which named the 'Chief Electoral Commissioner' (read: Chairman of INEC or Jega) as the 'announcer' of the presidential election result. Having thus considered Yinka's posers, below, therefore, is summary of my take:
First, It is conceded that under Section 27(2)(h) of the Electoral Act, the result of the Presidential election is to be announced by the 'Chief Electoral Commissioner'. Under Section 156, the Chairman is identified specifically as the Chief Electoral Commissioner. However, under Section 152, the Commission is empowered to delegate any of its functions to any of the National Commissioners. In my considered view, the operative phrase – 'any of its functions', includes conducting the presidential election and the announcement of result thereof. Therefore, other than Jega, any of the 12 national commissioners can, under the discretionary delegation of the Commission, act as the Chief Electoral Commissioner, in the interim, for the specific purpose of announcing the said result.
Second, Section 159(4) of the Constitution, which is also pertinent, provides that "Subject to its rules of procedure, any such body may act or take part in any decision notwithstanding any vacancy in its membership or the absence of any member". Without doubt, 'such body' as stated here includes INEC, as enumerated under Section 153 of the Constitution. 'Any vacancy' can mean anything from terminal leave, removal or suspension from office, death, etc. And 'any decision' includes conducting elections (presidential, etc.) and announcement of the results (the core functions of the Commission).
Third, Section 161(c) of the Constitution states that "any reference to "member" of a body established by section 153 of this Constitution shall be construed as including a reference to the Chairman of that body". I believe that you can (interpretatively) expand this provision to read that 'a reference to the Chairman shall be construed as a reference to a member who happens to be the Chairman', including a member 'acting' as Chairman, either as a result of a foreseeable vacancy, delegation, or worse. Further, keep in mind that the Attorney-General of the Federation had, in a related legal opinion (requested by Jega), stated that all the 12 Commissioners, including Jega, are constitutional equals; and that Jega is thus not a CEO but merely a primus inter pares (first among equals).
Fourth, Section 159(3) of the Constitution says that "Whenever such body is assembled for a meeting, the Chairman or other person presiding shall, in all matters in which a decision is taken by vote (by whatever name such vote may be called) have a casting as well as a deliberative vote". In my view, the phrase 'other person presiding' bears a constitutional recognition that the Chairman may not always be available … for whatever reason, including terminal leave, expiration of tenure, or even by an act of force majeur; and the Commission's 'decision' can be on any matter within the purview of the Commission's core functions, including most notably, conducting elections and announcing their results.
Finally, let me conclude by adding this caveat: the Chairmanship of INEC should not be personalized to the point of the apprehension that elections will be adversely affected by any sudden vacancy in that office. Let it be clear that, in addition to this much feared terminal leave, vacancy can also suddenly occur from physical/mental incapacity, removal from office, resignation or even death. Plus, we have till 29th April to hold these elections – a time span that is more than sufficient to appoint and confirm another substantive Chairman.
So, with all the forgoing considered, the material questions to ask are these: what if we are here dealing with another garden-variety vacancy, not occasioned by 'terminal leave', but by any of the other events aforementioned? In such other likely scenarios, will it still make sense to postulate that the validity or credibility of the ensuing elections will thereby be adversely affected?
Aloy Ejimakor, a lawyer writes from email@example.com
08032651660 (Texts only)