Jonathan Cannot Suspend Or Sack Jega - by Soyombo Opeyemi

We must never permit a situation of having to lock the stable door after the horse had bolted. The constitution is clear and unambiguous: the process of removal of the Chairman of the Independent National Electoral Commission, according to Section 157 of the 1999 Constitution, starts from the Senate and ends with the President.

Reacting to the purported dismissal of Maurice Iwu by President Goodluck Jonathan in the Daily Independent in 2010 under the title, The collapse of the Rule of Law in Nigeria, I said inter alia:

“Readers of this column would have observed my obsession with issues relating to the rule of law. My pen has never failed to spare any infraction of what I regard as the canon of civilisation, however marginal or minute is the breach. It is my firm belief that relations in any human concourse must be guided by a code, the breach of which must attract a penalty. This is what distinguishes a political community from the community of beasts. Indeed, the stage of development of any nation is a function of the degree of compliance with the rule of law. Show me a civilised and developed nation and I will show you a nation that worships at the temple of the rule of law.

“Recently, the newspapers were awash with the news of the Acting President, Goodluck Jonathan, directing the Chairman of the Independent National Electoral Commission, Prof. Maurice Iwu, to proceed on a “pre-disengagement leave with immediate effect.” This, of course, generated considerable hoopla in the polity with many Nigerians, including those who should know better, commending the Acting President for sacking Iwu. First, Iwu was never sacked; the (Acting) President has no such power to sack Iwu; he can only do so with the authority of the Senate. Second, Iwu is entitled to his (annual) leave; asking him to proceed on his leave “with immediate effect” does not and cannot amount to a sack or dismissal. As a matter of fact, Maurice Iwu is still the substantive chairman of INEC because no one can replace him until his tenure expires on June 13, except he is removed constitutionally; he can even be recalled from his leave to attend to matters that are considered important.

"Therefore, I detest the attempt by Goodluck Jonathan to score a cheap political point by making a huge show of a simple administrative matter on the need for Iwu to proceed on his terminal leave. It was an attempt to create the impression that he actually sacked Iwu, and consequently secure a political mileage out of the action. The Independent National Electoral Commission, Code of Conduct Bureau, Federal Character Commission, Federal Civil Service Commission, National Population Commission, Police Service Commission, Revenue Mobilisation Allocation and Fiscal Commission, among others, are autonomous federal executive bodies created by Section 153 of the 1999 Constitution. Will it, for instance, be part of due process for the (Acting) President to issue a public statement anytime any chairman of any of these bodies is to proceed on (a pre-disengagement) leave? If Maurice Iwu preferred to continue to work without leave and his administrative employer thought otherwise, I suppose a memo to that effect should suffice… The problem, however, is that we do not know the content of the letter of appointment of Maurice Iwu. Even at that, the chairmen of these bodies (those I listed above) do not hold their offices at the pleasure of the President. It will be interesting, for instance, for the President to direct the Chairman of the National Judicial Council to proceed on a pre-disengagement leave (“with immediate effect)!”

The impression conveyed to the public by President Jonathan during the Wednesday, February 11, 2015 Presidential Media Chat was that he could hire and fire the chairman of INEC at any time. No sir. Such power does not reside in the Presidency.

Even if INEC Chairman were to commit a criminal offence today, such as murder, he can be arrested by the police and prosecuted, since he enjoys no immunity, but the President has no constitutional power to either constructively remove him through suspension or dismiss him outright on account of that criminal act. Indeed, I find it ludicrous when some lawmakers claim they can suspend the Speaker of a House of Assembly.

The fact is, there is no such provision for the suspension of a Speaker. Suspension and removal amount to the same thing, in that he will not function in the said office during the period of suspension. No such is ever envisaged by the framers of the constitution. If he has committed any gross misconduct, he can be removed by two-thirds majority of the ENTIRE House. I am aware of the Public Service Rules, the House Rules, etc., but these are subordinate to the constitution.

The power of the President to appoint or dismiss the Chairman of INEC, NJC, NPC, etc. is not only limited but circumscribed by the fact that he shall consult the Council of State for appointment and obtain confirmation of the Senate, and in the case of removal secure, first, the concurrence of at least two-thirds majority of the Senate. The language employed by the constitution is that the process of removal should commence from the Senate – unlike the process of appointment which should begin from the President. Therefore, the President should be well-guided and not act in ignorance or defiance of the provisions of the constitution.

Buoyed by his getting away with constructive removal of the immediate past Governor of the Central Bank of Nigeria, Mallam Lamido Sanusi, from office through suspension, the President erroneously believes that he can do the same for powerful federal executive bodies clearly listed in Section 153 of the 1999 Constitution. No sir; that’s a no-go-area.

But then impunity begets impunity. Under what constitutional power did the President remove Chief Festus Odumegwu, the then Chairman of the National Population Commission? Did the process commence from the Upper House? Did the Senate debate, let alone vote on his removal? But we all kept quiet then; so, why not attempt other infractions if you could get away with one act of impunity? But it is time to say thus far and no further to the President. Acting against the constitution is tantamount to treason.

We must warn against a situation where the President will attempt to unconstitutionally dismiss the chairmen of INEC, NPC, NJC, etc. and then ask anyone that is not satisfied to go to court. That will amount to high treason. The constitution is clear: the process of removal of the chairman of INEC, according to Section 157, starts from the Senate and ends with the President. The purpose of Section 157 is to insulate the all-important bodies like INEC, CCB, NPC, RMAFC, etc. from the vagaries of politics and political interference from the President. The polity should no longer permit any act of impunity that may bring down the edifice of this nation.