Is Jega now a Civil Servant for the Purpose of forced or subtle Removal? -By Jiti Ogunye

Chairman Jega, of the Independent National Election Commission (INEC)

Of late, some proxy waters testers, engaged obviously to run a deleterious proposition by the Nigerian public before any move to actualize the proposition, have started a campaign that Attahiru Jega could be eased out of office by President Goodluck Jonathan, even before the holding of the rescheduled general election on 28th of March and 11th of April, 2015.

According to these “legal pundits”, or more appropriately pundits of illegalities and lawlessness, by 24th of March, 2015, Jega, who was appointed the Chairman of Independent National Electoral Commission ( INEC) in June 2010, will be obliged to proceed on his terminal leave, ahead of the end of his tenure in June, 2015, marking the end of his five year tenure. This opinion has become so pervasive that the Media Assistant to the INEC Chair, Kayode Idowu has to react to it in the media. Last night, during the Chat of the President with the Media, President Goodluck Jonathan also reacted to it, dismissing it as an unfounded rumour.

Since this is the era of transformation in which senseless rumours and sheer absurdity later transmute into governmental action, where unfounded rumours do become founded actions, we hasten to warn that directing Jega to proceed on a so called terminal leave to pave way for the appointment of a new INEC Chair will be illegal and unconstitutional. And so will be his suspension from office pending the establishment of a case of misconduct against him, relying on the Hon. Justice Isa Ayo Salami and Sanusi Lamido Sanusi precedents. The only way Jega can be removed from office before the end of his tenure is through the path provided by the Constitution.

Section 153. (1) ( f) of the Constitution establishes INEC as one of certain executive bodies for the Federation. The composition and powers of INEC are as contained in Part 1 of the Third Schedule to the Constitution. See Section 153. (2). Section 154. (1) of the Constitution provides that except in the case of ex officio members or where other provisions are made in the Constitution, the Chairman and members of INEC shall, subject to the provisions of the Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate. Thus, The Chairman and the Federal Commissioners and State Resident Electoral Commissioners of INEC were appointed by the President, upon the approval of the Senate. Section 153.(3) of the Constitution provides that in exercising his powers to appoint a person as Chairman or member of INEC, the President shall consult the Council of State. Section 155. (1) (c) of the Constitution provides 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.

By virtue of the provision of Section 157. (1 &2) of the Constitution, 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.

It can, thus, be seen that under the Constitution, the two (2) grounds for removal of a Chairman of INEC or any of the members of INEC from office are: (1) inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause); or (2) misconduct.

To avoid any mischievous elastic interpretation that may suggest that the Chairman or any of the members of INEC could be removed from office on the ground of inability to discharge the functions of the office arising from “any other cause”, may we state, very emphatically, that the clause ” any other cause ” under Section 157 of the Constitution, must be construed, esjudem generis, in the light of “infirmity of mind or body”. In other words, the Chairman of INEC or any of the members of INEC could only be removed from office for inability to discharge the functions of their respective office, whether arising from infirmity of mind or body or “any other infirmity”. Clearly, “any other cause ” cannot be interpreted to mean, for example, ” failure to distribute permanent voters cards properly or distributing PVCs in an uneven manner all over the Country, as it is being alleged.

Section 161 (d) of the Constitution, the Interpretation Section of the Chapter of the Constitution that deals with the Federal Executive bodies, including INEC, defines “misconduct”. It provides that “unless the context otherwise requires “misconduct” means a breach of the Oath of Allegiance or oath of office of a member or a breach of the provisions of this Constitution or bribery or corruption or false declaration of assets and liabilities or conviction for(sic!) treason or treasonable felony” Before the INEC Chairman or any of her members can be removed for misconduct, he must be guilty of a breach of the provisions of this Constitution or bribery or corruption or false declaration of assets and liabilities or must have been convicted of treason or treasonable felony.

We submit, by elaboration, that the Chairman or any of the members of INEC could cease to hold office only by resignation ( since they are not under conscription and cannot be forced to continue to serve if they feel otherwise), incapacity in health to discharge the functions of their offices, death, and removal from office on grounds of misconduct, more or less like a judicial officer, governor or a president. Also, the INEC Chairman or any of the members shall ” cease to be member if any circumstances arise that, if he were not a member of INEC, would cause him to be disqualified for appointment as such a member” See Section 155 (2) of the Constitution.

We submit further that the President, acting by himself or through the Secretary to the Government of the Federation, Head of Service or the Attorney-General of the Federation cannot try or discipline ( suspend or remove from office)   the Chairman or member of INEC for alleged acts of misconduct. Why? Section 158. (1) of the Constitution forbids this by providing that “in exercising its power to make appointments or to exercise disciplinary control over persons, INEC shall not be subject to the direction or control of any other authority or person.”

The President will be acting rightly, however, if he formulates and presents his charges of misconduct to the Senate, seeking a removal of the Chairman or any of the members from office, and inviting the Senate to consider the charge and prepare an address, supported by a two-third (2/3) majority of members of the Senate to enable the President exercise his power of removal. The President, we hasten to caution, cannot remove or suspend the Chairman of INEC from office, and send a request to the Senate to endorse or approve of the removal. A removal comes after a Senate Address, not before. It is like the President assenting to a bill duly passed by the National Assembly. The President does not assent to an executive bill before presenting same to the National Assembly for consideration.

As the President illegally did with the erstwhile CBN Governor, the President also cannot suspend the Chairman or member of INEC on the ground of misconduct in anticipation of removal from office. The spin that the Interpretation Act says that ” he who appoints can suspend” does not apply here. The INEC Chairman and members of INEC enjoy “security of tenures” under the Constitution, and cannot be manipulatively and grotesquely removed from office before the end of their 5 year tenures though the crude euphemism of terminal leave.

We now come to the question of whether the Chairman and members of INEC are in the civil service of the Federation, whose appointment and tenure of office are subject to the Public Service Rules.

Section 169 of the Constitution provides that “there shall be a civil service of the Federation.” Section 318-the Interpretation Section of the Constitution– defines “civil service of the Federation”. It says it ” means service of the Federation in a civil capacity as staff of the office of the President, the Vice-President, a ministry or department of the government of the Federation assigned with the responsibility for any business of the Government of the Federation”.

In the light of this interpretation, is the INEC Chairman or any member of INEC in the civil service of the Federation? The answer is no. Although there may be members of staff of INEC, in her administration, who are, primarily, civil servants, before being seconded or posted to INEC, this does not mean that INEC is part and parcel of the Civil Service of the Federation. Jega, is, therefore, not in the Civil Service of the Federation. The Public Service Rules do not apply to his employment.

Under Section 171. (1 & 2) of the Constitution, the President is vested with the “power to appoint persons to hold or act in the following offices, and to remove persons so appointed from any such office.; namely – (a) Secretary to the Government of the Federation; (b) Head of the Civil Service of the Federation; (c) Ambassador, High Commissioner or other Principal Representative of Nigeria abroad; (d) Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated; and (e) any office on the personal staff of the President.

Very instructively, Section 171 (6) of the Constitution provides that any of the above listed appointments “shall be at the pleasure of the President and shall cease when the President ceases to hold office“. Apart from the fact that the Chairman and members of INEC are not listed under Section 171(2) of the Constitution as public officers that could be appointed and removed by the President, we all know that the term of a President if four years, while that of Chairman and members of INEC is five years; renewable. The Chairman and members of INEC do not hold office at the pleasure of the President and their terms of office do not cease when the President ceases to hold office. Maurice Iwu was appointed by Olusegun Obsanjo, inherited by the Umar Yar Adua and sacked by Goodluck Jonathan, for example.

The Chairman and members of INEC are in the public service of the Federation. See Section 318 (paragraph c) of the Constitution of Nigeria -Interpretation Section- which defines “Public service of the Federation” to mean ” the service of the Federation in any capacity in respect of the Government of the Federation, and includes- member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly”. We insist, however, that the provisions of the Public Service Rules do not govern and regulate the appointments of the Chairman and members of INEC. They are appointed into office, and not employed into office. They serve their term(s) or tenure(s) and leave when their tenures end. They do not work, earn promotions and retire from Service, upon attaining 35 years in service or 60 years of biological age, which one is earlier.

Section 156 (2) of the Constitution provides that ” any person employed in the public service of the Federation shall not be disqualified for appointment as Chairman or member of INEC, 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 provision is significant. It underlines the fact and the law that there is a distinction between the Public Service of the Federation and INEC, a constitutionally created body.

Although the Chairman and members of INEC are public servants, the Public Service Rules do not govern their appointments. And this is in spite of the audacious provision of Rule 01001 of the Public Service Rules, which says that “the public service rules apply to all officers except where they conflict with specific terms approved by the Federal Government and written into contract of employment or letters of employment”

The Chairman and members of INEC are not under the disciplinary jurisdiction of the President, acting alone, or the Federal Civil Service Commission. The President cannot resort to the disciplinary procedure under the Public Service Rules to suspend the Chairman and members of INEC. INEC is a body specially created by the Constitution, which spells out the procedure for removal of her Chairman and members. A desperate elopement from the provisions of the Constitution and a resort to the public service rules to achieve any desire of an ouster from office will be unconstitutional.

We hope that the “rumour mongers” who are erroneously asserting that the President has the power to hire and fire and suspend the Chairman of INEC are not referring to the provision of Section 11 of the Interpretation Act. Reliance on this provision of this Section 11 of the Interpretation Act as the authority for any contemplated action of suspension of the Chairman of INEC, by the President, is misconceived. The “he who hires can fire” extra-legal rule of the thumb that was used to cut short Sanusi Lamido Sanusi’s CBN Governorship is not applicable here.

Section 11 of the Interpretation Act, Cap 123, Vol. 8, LFN, 2004 provides that “(1) where an enactment confers a power to appoint a person either to an office or to exercise any functions whether for a specified period or not, the power includes:(a) power to appoint a person by name or to appoint the holder from time to time of a particular office; ( b) power to remove or suspend him; (c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to power to appoint-(i) to re-appoint or reinstate him;(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested; (2) a reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be”

We argue that Section 11(1) (b) of the Interpretation Act does not apply to the office of the Chairman and members of INEC, to enable the President, acting singly, to suspend or remove the Chairman of INEC from office. Under the Constitution, the powers to appoint or remove the Chairman and members of INEC to and from office have been specifically and carefully donated to two authorities in two branches of government: the President, the head of the Federal Executive Branch of Government; and the Senate ( the Upper House) of the Federal Legislature. The procedures of appointment and removal are provided. There is no omission or lacunae. There is no mention of suspension. in the Constitution. This is not because of legislative forgetfulness. If the framers of the Constitution wanted either or both of the two authorities to exercise the power of suspension over the Chairman and members of INEC, in addition to the powers of appointment and removal, that power similarly would have been vested in either or both authorities. Both the President and the Senate are appointing and removing authorities regarding the office of Chairman and members of INEC, and strictly and scrupulously must follow the procedure for removal or discipline therein.

“It is trite that once the law has prescribed a particular method of exercising a statutory power any other method of exercise of it is excluded.’ ‘Except where the law gives a discretion to a public functionary he can only act in accordance with the express provisions of the law, as to do otherwise would enthrone arbitrariness.” See Ude v Nwara (1993), 2 NWLR, Pt 278, 661, para. D, 664, para. E-F.

We submit that the President of Nigeria cannot claim authority under the Public Service Rules or Interpretation Act to suspend or sack the Chairman or any of the members of INEC from office. The President cannot abandon the provisions of the Constitution and seek refuge under the Interpretation Act to suspend or sack the Chairman and members of INEC from office.

Assuming ( without conceding) that the power of suspension can be imported into the Constitution, the question is, who can exercise the power of suspension and how can it be exercised? Clearly the answer is not far-fetched. The Senate and the President are both the appointing and removing authority. Thus, that appointing authority, the Senate and President, shall jointly exercise the power to suspend the Chairman and members of INEC .

We submit that even if it is being suggested that the rule of suspension from office pending investigation of allegation of act of gross misconduct, as provided by Rules 04302-04306, and 04402 of the Public Service Rules, can be invoked by the President in suspending the Chairman or any of the members of INEC, we declare that the President cannot invoke that rule; it is only the Federal Civil Service Commission that can invoke these disciplinary powers.

For the avoidance of any doubt, Rule 04305 provides that ” suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer, and it is considered necessary in the public interest that he should forthwith be prohibited from carrying on his duties. Pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/ Head of Extra Ministerial Department ( if within his delegated powers0 shall forthwith suspend him from the exercise of the powers and functions of his office and from the enjoyment of his salary”

If Jega cannot be suspended from office by the President, can the President or the Presidency advise him to proceed on leave before the end of his tenure? The answer is no. Rule 100238 of the Public Service Rules provides that ” officers are required to give three months notice to retire from service before the effective date of retirement. At the commencement of three months, officers should proceed immediately on the mandatory one-month pre-retirement workshop/seminar. For the remaining two months, retiring officers are expected to take necessary measures to put their records straight so as to facilitate the speedy processing of their retirement benefits.”

As we have stated above, the Public Service Rules do not regulate the appointments and tenures of the Chairman and members of INEC. Rule 100238 does not apply to the tenure of office of members of INEC. When their term of office ends, they do not retire. They cease to hold office. And although they may earn severance or terminal benefits, they do not earn pensions and gratuities, unlike the employees (staff members) of INEC who have the same right and obligation as provided for in the Pension Reform Act. See Section 8 (4) of Electoral Act, 2010, a section that accords with Section 173 of the Constitution , which guarantees the right of a person in the public service of the Federation to receive pension or gratuity, as may be regulated by law.

It can, therefore, be seen that it cannot be reasonably suggested that Jega should proceed on terminal leave or pre-retirement leave, three months to the end of his tenure in INEC. The Public Service Rules do not support such a suggestion. Any circular on the applicability of the three month pre-retirement leave to all categories of public servants or officers, emanating from the Head of Service, even if such a circular is circulated to INEC, is useless, as far as the appointments and tenures of the Chairman and members of INEC are concerned. That circular, even if it is a law, will be in conflict with the supremacy clause in the Constitution ( Section 1(3), and will, to the extent of its inconsistency, be null and void and of no effect whatsoever. Even if the Chapter on Leave in the Public Service Rules is applicable to Jega, he cannot be asked to proceed on leave when a general election is being conducted, an election in which he is the returning officer in respect of the office of President. Under Public Service Rules, provisions are made for Deferred Leave and Return From Leave on Government Request whenever a serious assignment is at stake.

Nigeria is in the middle of an acute intra-ruling class power struggle. And every course of action may be contemplated by the combatants. Organizations and nations in history have been destroyed by ruling class power struggles. In the instant political power contestation in Nigeria, we enjoin all to remember that there is a Constitution and there are laws, which must be obeyed. And “the purpose of law”, according to Ovid, a 1^st Century Roman Poet, “is to prevent the strong from always having their way”.

Mr. Ogunye, lawyer, legal commentator, author, and essayist, is the Legal adviser of Premium Times.