THE seeming insensitivity being
shown by the President Muhammadu Buhari over the unconstitutional appointment
of Amina Zakari is too early an indication of impunity, for a popularly elected
government that promised to stop impunity in the conduct of the affairs of
state.
Some of us who helped to shape
public opinion in his favour, out of shame in the last weeks, have hidden under
the excuses that afterall he has no Attorney General to advise him, no Chief of
Staff or Secretary to Government. But more disturbing and worrisome is the fact
that it appears the Vice President, who is a professor of law and a Senior
Advocate of Nigeria, in the absence of an AGF, was not consulted or carried
along on a matter bothering on constitutionalism.
Many stakeholders in the Civil
Society group joined Nigerians in embracing and celebrating the election of
President Buhari through a credible and acceptable election process. It is for
the same reason of maintaining credibility and the acceptability of the
electoral process that Civil Society as the bridge between the family,
the political public and the market, should also pay close attention to the
recent process of appointing Mrs. Zakari as the Acting-Chairperson of
INEC because of its normative and legal contradictions for the autonomy of INEC
and the management of the electoral process.
It is an incontrovertible fact that
Mrs. Zakari wrote in her resume, professional work under a consortium
previously strongly associated with President Buhari’s late brother in-law and
his preferred consultants for his work at the Petroleum Trust Fund-AfriProject
consortium. His preference for Mrs .Zakari and his further zeal to reverse the
last administrative action of Prof. Attahiru Jega to project that preference,
is a deeply injurious action for the independence of INEC as an electoral
management institution for several normative and legal reasons.
Normatively, it contradicts the
intentions of local, regional and global best practices for the autonomy of an
electoral management body to be in the hands of someone with close, undeniable
family ties to the appointor; it negates the recommendation of the Uwais
Committee on Electoral Reform regarding the autonomy of the Commission, which
called for a “review of the composition, administrative autonomy and funding of
INEC and State Independent Electoral Commissions (SIECs)”.
Regionally, it breaches the spirit
and letter of the African Charter on Democracy, Election and Governance where
it is stated in Article 17:1 that state parties shall: “Establish and
strengthen independent and impartial national electoral bodies responsible for
the management of elections”.
Globally, it contradicts best
practices such as Article 3:1a-b of the Venice Convention, which indicated
that, the conditions for implementing the principles of electoral heritage of
universal, equal, free, secret and direct suffrage shall include: “Procedural
guarantees through the organisation of elections by an impartial body, where
there is no longstanding affinity and tradition of administrative authorities’
independence from those holding political power”.
Legally, there is no constitutional
provision for the office of an “acting chairperson” of INEC appointed from
outside the Commission. Thus,any person acting in such capacity can only be
delegated by the extant Chairperson, and the constitution has not been amended
to give the President such powers, nor the powers to overrule the
administrative decisions of an INEC chairperson. Moreover, the only legal way
to appoint a National Electoral Commissioner is by reference to the National
Council of State and through the approval /confirmation of the Senate, hence,
legally, Mrs. Zakari cannot stay one day longer than 21st July 2015 as an
appointee in INEC. The letter empowering her to so act emanating from the Head
of Service, is ultra vires. There is no provision in Nigerian laws which gives
the Head of Service any role in the appointment of a chairperson of INEC. In
legal terms, the whole appointment of Mrs. Zakari by the President is a legal
fiasco, a constitutional congenital malformation and possibly an impeachable
offence if the legislature wishes to exercise diligent oversight. In exercising
his constitutional powers, the only legal ambit allowed the President is to
accept Prof. Jega’s last order and appoint new National Electoral Commissioners
constitutionally.
But more important is the issue of
“conflict of interest” and “moral hazard”. Considering her long standing
history with the President’s family. Being an experienced National Electoral
commissioner, the ethical commitment of Mrs. Zakari is morally suspect for not
advising the President altruistically that there are normative standards that
will be breached by her accepting such appointment.
Moreover, her not owning up to this
risky contradiction is morally hazardous, because accepting the appointment
despite the inherent flaws, which were obviously predicted by Prof. Jega who
did not hand over to her, has exposed the President’s integrity to doubt and
scrutiny.
The flawed appointment of Mrs.
Zakari is not a flaw of competence, but a flaw of integrity and impartiality
which underpins the autonomy of the Independent National Electoral Commission.
It is vital to the credibility of the process outcomes of the core task of the
Commission. Credibility and acceptability of elections depends on impartiality
as one of its touchstones. Hence, one of the global authorities on the subject
of election malpractices Sarah Birch asserts that electoral malpractice can
occur in three principal dimensions. One of which is manipulating the design of
the institutions governing elections to the advantage of one or more electoral
contestants, in violation of the principles of inclusivity, impartiality,
openness or transparency such as through gerrymandering, malapportionment,
over-restrictive franchise or candidacy regulations, campaign regulations that
lead to inequalities among contestants, and lack of observer access to
electoral processes.
Such propositions therefore
strengthens the suspicions of opposing political stakeholders, who are
justified in suspecting unhealthy intentions of political manipulation by the
appointment of Mrs. Zakari, given her alleged filial and other relationships
with the presidency. The impression being conveyed by the President and those
around him is that the President feels more secure in future elections only
with Amina Zakari with whom he has family ties, from the same North West zone,
and it is further alleged that the President lived in the home of Zakari’s
father as a tenant at some point in life.
It is therefore incumbent on the
Civil Society, in living up to its responsibility of dissuading a drift towards
authoritarian control of the election management body, through the possible
erosion of its independence, by probing further the conflict of interest issues
raised against the person of Mrs. Zakari, and the wider ramifications the
establishment of that fact has for the integrity of President Buhari, regarding
the conduct of free and fair elections in the near future in Nigeria.
Mr. Rotimi Adebisi, a member of the
Civil Society group, wrote from Lagos.
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