INEC MEMBERS CANNOT BE PARTY STALWARTS- FEMI FALANA.

Between 1999 and 2007 the Chairman and the 12 other Commissioners of the Independent National Electoral Commission (INEC) and the resident electoral commissioners in the 36 States and the Federal Capital Territory were appointed on the basis of their membership of the Peoples’ Democratic Party or on the recommendation of certain chieftains of the ruling party. In those days of executive rascality, President Olusegun Obasanjo was fond of citing Section 156(1) of the 1999 Constitution to justify the illegal constitution of the INEC. Not unexpectedly, the 2003 and 2007 General Elections were manipulated in favour of the PDP. In order to end such impunity the Electoral Reform Committee headed by the Honourable Mohammed Uwais, a former Chief of Justice of Nigeria, made a strong case for the appointment of INEC members by the President on the recommendation of the National Judicial Council (NJC). But the recommendation was rejected by the Presidency and the PDP-dominated National Assembly. Consequently, President Goodluck Jonathan has nominated the Chairman and 10 national commissioners of INEC and 19 resident electoral commissioners whose names have been forwarded to the Senate for screening. Since majority of them are card carrying members of the PDP the Senate is likely to ask them to take a bow.

While the nomination of Professor Attahiru Jega, a former National President of the Academic Staff Union of Universities (ASUU) has been hailed the nomination of PDP members into INEC has been seriously challenged by civil society groups. In his reaction to the criticisms, President Jonathan has promised to remove the names of PDP members from the INEC list. In a bid to demonstrate that the nomination of the PDP members was not illegal per se the President alluded to section 156(1) of the Constitution which stipulates that no person shall be qualified for appointment as a member of any of the federal executive bodies “if he is not qualified or if he is disqualified for election as a member of the House of Representatives”.

With respect, the reference to Section 156(1) of the Constitution in the circumstance, is totally misleading. Indeed, the absurdity of the skewed interpretation of the Section can be properly appreciated when the membership of other federal executive bodies like the Federal Judicial Service Commission, National Judicial Council, National Defence and Security Council etc is examined. No one in his right senses has suggested that the Chief Justice and other senior judges in the NJC or the service chiefs in the National Defence and Security Council should be card carrying members of a political party.

Indeed, to ensure that the federal executive bodies are not peopled with party stalwarts the qualifications for membership of each of them have been set out in the Third Schedule made pursuant to Section 153 of the Constitution. The maxim generalia specialibus non derogant (a specific provision is not affected by a subsequent general provision of the law) is apposite. In other words, the specific qualifications for the membership of INEC outlined in Section 153 thereof cannot be altered by the general provision for the membership of all federal executive bodies set out in Section 156 of the Constitution.

Thus, by the combined effect of Sections 153 and 154 of the Constitution the President is empowered to appoint the Chairman and the other 12 Commissioners of INEC and the resident electoral Commissioners. They shall be persons of unquestionable integrity and not less than 50 years of age for the Chairman and 40 years for other commissioners. It is therefore submitted, without any fear of contradiction, that the additional qualification of the membership of a political party is not a requirement of the Constitution.

Having found that INEC Commissioners are not required to be card carrying members of any political party President Jonathan should purge the electoral body of the loyalists of the ruling party. The urgent task of reconstituting the INEC transcends the filling of existing vacancies. The way and manner the rerun elections were conducted showed by the Resident Electoral Commissioners have not learnt any lesson. This was further demonstrated in the case of Anambra State when the Resident Electoral Commissioner was asked to step aside by the INEC on the ground that he had concluded arrangements to rig the election in favour of one of the candidates. With respect to Ekiti State, since Mrs. Ayoka Adebayo resigned her appointment as the Ekiti State Resident Electoral Commissioner in April, 2009 she has never shown up in the INEC office at Ado Ekiti.

The national and resident electoral commissioners and other top INEC officials who have been indicted by various Election Petition Tribunals and the Court of Appeal for unprecedented electoral fraud should be relieved of their positions without any further ado. In particular, the resident electoral commissioners who declared false results of governorship elections in eight states and others who made false returns in respect of legislative elections throughout the federation should be dismissed in the public interest. Apart from setting aside such fraudulent results the rerun elections ordered by the Court of Appeal were held at huge costs to the nation. If these officials are lucky that they have not been prosecuted for large scale electoral crimes they should not be allowed to pollute the 2011 General Elections.

FEMI FALANA
Chairman, National Conscience Party (NCP)

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