Settling the dust over Zakari’s appointment as INEC’s Acting Chair
WITH threats to the validity of the gubernatorial elections holding in Kogi and Bayelsa States in November and December this year, the issue of the appointment of Mrs. Amina Bala Zakari as the acting Chairman of the Independent National Electoral Commission (INEC) has further amplified the controversy over the appointments so far made by President Muhammadu Buhari.
The argument, which put a question mark on whether the INEC can conduct a legally acceptable election under the watch of an acting Chairman, is already being prepared by opposition elements to nullify the elections even before they are conducted.
Zakari was pronounced as acting Chairman of the electoral body by President Buhari in place of Ambassador Abubakar Wali, the choice of former Chairman, Professor Atahiru Jega, whose five-year tenure lapsed on June 30.
The pronouncement has however attracted a lot of condemnations especially from the opposition Peoples Democratic Party (PDP), which, speaking through its Publicity Secretary, Olisa Metuh, alleged that Zakari “is to be used to conduct the Kogi and Bayelsa elections in favour of the All Progressive Congress (APC).
The party also alleged that “a strong relationship” exists between Zakari and Buhari, an allegation that was further buoyed by Alhaji Tanko who claimed that Zakari is actually Buhari’s in-law.
While the INEC boss has denied that she is Buhari’s in-law or that the President is her uncle as claimed by another source, outspoken critics of Buhari’s administration like Ekiti State governor, Ayo Fayose, have latched on that to call for her sack.
Fayose went further to argue that since Zakari’s tenure as a National Commissioner of INEC, a platform from which she was picked to replace Jega, expired on July 21, she is not qualified to hold the office or conduct any election organised by the body.
Although none of the critics doubted Zakari’s competence to lead the electoral umpire, having been a National Commissioner appointed by former President Goodluck Jonathan, whose supporters didn’t point out her relationship with Buhari during the conduct of the last presidential elections, or argued against the power of the President to pick his choice, attempts are being made to hang a moral albatross on her neck.
But apart from these attempts to vilify her on account of unsubstantiated relationship with the President that could undermine the integrity of the electoral body, the issue of illegality or otherwise of her handling the Kogi and Bayelsa governorship elections in acting capacity, has been pushed to the centre stage of national discourse.
With the hazy relationship between the Presidency and the Senate, which would endorse her choice, the incessant recesses in the National Assembly and the strong membership of the opposition PDP in the upper chamber, it is not clear whether Zakari could be cleared by the legislators before the conduct of the two elections.
Looking beyond the appointment THE National Chairman of African Democratic Congress (ADC), one of the INEC-registered political parties in Nigeria, Chief Ralph Okey Nwosu said Nigerians should look beyond the controversies of the appointment and task President Buhari to do the needful.
According to him, “People should not look at the issue as Zakari’s problem or assumed she lacks the capacity, the real problem lies with the presidency.
The pronouncement has however attracted a lot of condemnations especially from the opposition Peoples Democratic Party (PDP), which, speaking through its Publicity Secretary, Olisa Metuh, alleged that Zakari “is to be used to conduct the Kogi and Bayelsa elections in favour of the All Progressive Congress (APC). The party also alleged that “a strong relationship” exists between Zakari and Buhari, an allegation that was further buoyed by Alhaji Tanko who claimed that Zakari is actually Buhari’s in-law.
In my point of view, there is no reason we should have acting INEC chairman for more than a month. “I know that a lot of people have raised issues about her (Zakari’s) legality to conduct elections in acting capacity; they are not saying she lacks the merit or capacity but the way President Buhari has remained silent over the matter is making it look as if the presidency itself does not trust the woman’s capacity to handle the umpire.”
Nwosu also urged the President to mindful of the fact that electoral commission in the country has been shaky since 1999 but that the immediate past chairman, Jega tried to build confidence of the people in it “Mr. President should not, at this point in time, take any action either consciously or unconsciously that will erode the confidence of Nigerians in the electoral umpire.
We cannot continue to have acting chairman of the INEC.” Former Senate Minority Leader, Dr. Olorunimbe Mamora however suggested that it would be ideal to ensure that the Senate should confirm the appointment of whosoever will take up the chairmanship of the commission before such person handles any major assignment.
According to him, “This is just to forestall unnecessary controversies because I am convinced that some people would deliberately want to make issues out of it if the woman or any other person conducted any major election in acting capacity.”
Mamora said it is still possible the National Assembly to confirm any appointment between now and when the Kogi and Bayelsa elections will take place.
Irked by what he described as frivolities and unsubstantiated allegations, Governor of Old Kaduna State, Alhaji Balarabe Musa said there is no illegality in the appointment of Zakari. “I don’t see any credibility in the allegation that Zakari is related with Buhari, even at that what is wrong as long as it has nothing to do with her capacity to handle the assignment.”
Taking the argument from another angle, former Special Assistant to former President Jonathan on Public Relations, Dr. Olusanya Awosan said the controversies surrounding Zakari’s relationship with Buhari and legality of her conducting election in acting capacity “is like reducing the capacity of INEC as an institution to the responsibility of an individual.
In the first place, Zakari is not the only one to conduct the elections. There are other principal officers like the Resident Electoral Commissioners (REC), Returning Officer (RO) and others whose role are as important as that of the chairman.”
The legal arguments GOVERNOR Fayose opened the arguments against Zakari’s appointment from the legal angle when he said that Section 153 of the 1999 Constitution that established INEC does not make any provision for an acting Chairman, a position that was corroborated by Mike Ozekhome, SAN, who said that “the Constitution only allows for a substantive Chairman of INEC, not an acting one.”
This line of arguments has opened up the possibilities of complainants seeking to invalidate any election, even at the state level, conducted by an INEC under an acting Chairman.
However, another Senior Advocate, Ahmed Raji said, “The INEC acting chair has no direct statutory role in the said elections. They perhaps will be raising serious questions if the election being talked about is the presidential elections.
In state governorship election the acting or substantive chair is not the returning officer. “But at the Presidential election, the INEC chair is the Chief Returning Officer and therefore, it would have been a strong ground to argue against her being an acting chair. That’s not the instant case here.
And if I may ask, let’s assume an election is set for next Saturday and the substantive INEC chair suddenly dies (God forbid that), are we saying the elections won’t go on? There is nothing wrong with her position right now as acting as it does not affect in anyway the forthcoming governorship elections.”
Speaking in the same vein, Chief Adegboyega Awomolo, SAN, said, “If she qualifies to be acting Chairman of the commission, then she is qualified to be chairman also.
So rather than query her status as acting, the question that would be germane is whether or not she is qualified. “And unfortunately, that does not seem to be the question. Rather, the people seem concerned about whether the law allows an acting chairman to be on sit when an election is to be held.
I don’t see any legal infringement with her appointment. The only thing is that she moved from being commissioner to becoming INEC acting chair. I do not see anything wrong with that.
The President can appoint from within the commissioners and he can appoint from outside. “That’s the President’s prerogative and he has exercised it in the said appointment.
Although none of the critics doubted Zakari’s competence to lead the electoral umpire, having been a National Commissioner appointed by former President Goodluck Jonathan, whose supporters didn’t point out her relationship with Buhari during the conduct of the last presidential elections, or argued against the power of the President to pick his choice, attempts are being made to hang a moral albatross on her neck. But apart from these attempts to vilify her on account of unsubstantiated relationship with the President that could undermine the integrity of the electoral body, the issue of illegality or otherwise of her handling the Kogi and Bayelsa governorship elections in acting capacity, has been pushed to the centre stage of national discourse.
There’s no provision of the law that expressly says an acting Chairman cannot be appointed for the electoral body. Nature abhors vacuum.” Another lawyer, Mr. Jiti Ogunye took the arguments in support of Zakari’s capacity to conduct elections to another level when he referred to Section 318 (3) of the 1999 Constitution, which provides that, “A person holding, shall include reference to a person acting that office.”
He noted that Section 11(2) of the Interpretational Act also provides similarly that, “A reference in 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 or her place, either as respect of the functions of the office generally or the functions in regards to which he or she is appointed, as the case may be.”
Ogunye argued further that the same situation which applies to someone holding the office of INEC Chairman in acting capacity applies to the office of the Chief Justice of the Federation where a qualified judge shall hold the office in acting capacity for three months before a substantive Chief Justice shall be appointed.
He stressed that all the assignments and functions carried out by the acting Chief Justice during the period of acting are deemed legal, constitutional and biding on the country and such individuals that may have passed through his or her actions or decisions.
The lawyer also cited the case of Jonathan who, during the period of the ill health of late President Umaru Musa Yar’adua, occupied the office as acting President.