Why Jonathan cannot fire Jega

Amid speculations of plots by the Presidency to remove the Chairman of the Independent National Electoral Commission, Attahiru Jega, from office, it has been established that the president has no powers to do so.

According to the 1999 Constitution (amended), the president can only remove the INEC Chairman on the strength of an advice from the Senate.

Mr. Jega, a former vice chancellor of Bayero University, Kano, who was appointed in June 2009, completes his five year tenure on June 30 this year.

However, there are reports that the presidency is already shopping for a replacement for the embattled INEC chairman over allegations that he has been compromised.

The presidency and the ruling Peoples Democratic Party, PDP, are believed to be uncomfortable with the INEC chairman and have allegedly vowed to remove him before the March 28 and April 11 dates for the general elections.

Mr. Jega had last Saturday announced the shift of the polls from February 14 and 28 citing security challenges in the north east. He also said the military had told the Commission it would not be available to provide security on the Election Day.

Last week, some southern elders under the aegis of Southern Nigeria Peoples Assembly, led by a former Federal Commissioner for Information, Edwin Clark, demanded Mr. Jega’s sack and arrest.

The elders, who are rooting for the re-election of President Goodluck Jonathan, alleged that INEC was favouring the North in the distribution of Permanent Voter Cards.

However, should Mr. Jonathan succumb to pressure to remove Mr. Jega, he cannot do so unilaterally. In accordance with the Constitution, the president will have to rely on the nod of the two-third members of the Senate, the nation’s highest law-making body, which is currently on break.

Section 157 (1) states that “Subject to the provision of subsection (3) of this Removal section, a person holding any of the offices to which this section applies may only be removed from that office by the president acting on an address supported by two-thirds 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.”

Subsection 2 states “This section applies to the office of the chairman and member of the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Federal Character Commission, the Nigeria Police Force, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission and the Police Service Commission.”

Although none of the nation’s law gives the president powers to ask the INEC chairman to proceed on retirement leave, he could however want to rely on Part D Section 171, under Public Service Rules of the Federation, to move against Mr. Jega.

Section 171 (1) states, “….Power to appoint persons to hold or act in the office to which this section applies and to remove persons so appointed from any such office shall vest in the President.

Subsection 2 listed such officers to include the secretary to the government of the federation, ambassadors and high commissioners, permanent secretaries or head of any extra ministerial department of the government of the federation however designated.

Appointment

In appointing an INEC chairman, the president consults the Council of State but the appointment will be subject to the confirmation of the Senate.

Section 153 (1) of the 1999 Constitution (amended) listed 14 bodies, including the INEC to be established by the Federal Government.

According to Section 154 “Except in the case of ex officio members or where other provisions are made in the Constitution, the Chairman and members of any of the bodies to the provisions of the Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate.”

Section 154 (3) says “In exercising the powers to appoint a person as Chairman or member of the Independent National Electoral Commission, National Judicial Council, the Federal Judicial Service Commission or the National Population Commission, the President shall consult the Council of State.”

Precedence

As he did in the case of the immediate past Governor of the Central Bank of Nigeria, Lamido Sanusi, the president might ignore the laws to oust Mr. Jega.

On February 20, 2014, the president, via a statement by his media aide, Reuben Abati, accused the former CBN Governor, who was on an assignment outside the country of “Various acts of financial recklessness and misconduct which are inconsistent with the administration’s vision of a Central Bank propelled by the core values of focused economic management, prudence, transparency and financial disciple”.

The statement also said the president was “deeply concerned about far reaching irregularities under Mallam Sanusi’s watch which have distracted the Central Bank away from the pursuit and achievement of its statutory mandate.”

Before his suspension, which was to allow the Financial Regulatory Council, FRC, to conclude investigations on the allegations, Mr. Sanusi had alleged at a Senate public hearing that the sum of $20 million was missing from the Federation Account.

But the action of the president raised questions as to whether he had the power under the nation’s laws to suspend the CBN chief.

In a media chat few days later, Mr. Jonathan said he had full powers to suspend the CBN Governor because of his oversight functions he exercises over the bank.

“Yes, I have absolute power. The CBN is not well defined in the Nigerian Constitution,” he said while responding to a question by the panel of journalists.

Though under the CBN Act, 2007, the president cannot suspend the CBN Governor, it however provides that he has powers to remove a CBN Governor subject to the approval of two-third majority of the Senate.

The Act states that the Governor, Deputy Governor or Director of CBN shall cease to hold office if he “is removed by the President Provided that the removal of the Governor shall be supported by two-third majority of the Senate praying that he be so removed