Daily Trust

Pres­i­dent Buhari’s nom­i­na­tion of Lau­retta Onochie to INEC is ex­plic­itly un­con­sti­tu­tional

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Pres­i­dent Buhari’s nom­i­na­tion of his Special As­sis­tant on So­cial Me­dia as a Na­tional Com­mis­sioner for the Na­tional Elec­toral Com­mis­sion (INEC) was some­thing of a sur­prise. Hear­ing the Pres­i­dent’s nom­i­na­tions to the INEC read to the Se­nate on Tues­day, I first thought there must be a mix-up. Af­ter all, an­other set of nom­i­nees for the Fed­eral Roads Main­te­nance Agency was pre­sented first. Sadly, I was wrong.

Now I am not naïve: I am well aware that any po­lit­i­cal leader will seek to place them­selves and their party at an ad­van­tage. This ac­tion falls into that cat­e­gory. But Onochie is ex­plic­itly dis­qual­i­fied by the con­sti­tu­tion from tak­ing a seat on the board of INEC. I had never imag­ined that Pres­i­dent Buhari would put his sig­na­ture on some­thing so brazenly un­con­sti­tu­tional. Even with the chill­ing de­mys­ti­fi­ca­tion of the last five years, I still thought he’s bet­ter than this.

Our con­sti­tu­tion couldn’t be more clear that INEC is an in­de­pen­dent body. That is pre­cisely why the framers of the 1999 Con­sti­tu­tion in­cluded that very word in the agency’s name. Past elec­toral bod­ies did not in­clude ‘in­de­pen­dent’ in their name, be­cause they were not: the Fed­eral Elec­toral Com­mis­sion (FEDECO) that con­ducted the 1979 and the con­tro­ver­sial 1983 elec­tions, the Na­tional Elec­toral Com­mis­sion (NEC), which man­aged the three-year tran­si­tion pro­gramme that ended with the an­nulled 1993 elec­tions, and the Na­tional Elec­toral Com­mis­sion of Nige­ria (NECON) that was estab­lished by Gen­eral Sani Abacha to spear­head his tran­si­tion pro­gramme that was aborted by his death in 1998. Hav­ing seen the re­sult of elec­toral watch­dogs be­com­ing an ex­ten­sion of the rul­ing party’s sec­re­tar­iat and seek­ing to lay a solid foun­da­tion for a strong democ­racy, the framers of the 1999 Con­sti­tu­tion de­lib­er­ately and pur­pose­fully in­serted “in­de­pen­dent” into the name of the new com­mis­sion for the first time in our con­sti­tu­tional his­tory.

They wanted it en­graved in the minds of every Nige­rian that INEC is al­ways ex­pected to be free from all kinds of in­ter­fer­ence. To en­sure this in­ten­tion didn’t end up as so much worth­less pa­per, the framers went fur­ther, mak­ing co­pi­ous pro­vi­sions to shield the body from un­scrupu­lous politi­cians and civil ser­vants. Sec­tion 154 re­quires the pres­i­dent to con­sult the Coun­cil of State be­fore ap­point­ing the chair­man and mem­bers of INEC and sub­jects such ap­point­ment to con­fir­ma­tion by the Se­nate. Sec­tion 155 stip­u­lates five years as the statu­tory ten­ure of chair­per­son and mem­bers and Sec­tion 157 pro­vides that they can only be re­moved for rea­sons specif­i­cally out­lined by the con­sti­tu­tion, and that such re­moval must be sup­ported by a two-thirds ma­jor­ity of the Se­nate. The con­sti­tu­tion fur­ther pro­vided that INEC shall not be sub­jected to the di­rec­tion or con­trol of any other au­thor­ity or per­son.

Hav­ing ex­pe­ri­enced sub­stan­tial de­lays from the ex­ec­u­tive branch in the dis­burse­ment of funds to INEC dur­ing the 1999, 2003 and 2007 elec­tions, it was thought that the body needed and de­served even stronger au­ton­omy. Thus, the First Al­ter­ation of the Con­sti­tu­tion in 2010 in­cluded pro­vi­sions that gave INEC fi­nan­cial free­dom by dis­burs­ing its funds di­rectly from the Con­sol­i­dated

Rev­enue Fund so no arm of govern­ment could con­trol its bud­get. If fact, Pres­i­dent Yar’Adua’s Elec­toral Re­form Com­mit­tee, upon whose rec­om­men­da­tions the 2010 amend­ments were made, even sug­gested that the power to ap­point INEC’s chair and mem­bers should be trans­ferred from the pres­i­dent to the Na­tional Ju­di­cial Coun­cil, but that pro­posal was still­born.

All of this was made to en­sure that this fun­da­men­tal char­ac­ter of any wor­thy um­pire was guar­an­teed to INEC not only in statute books but also, and most im­por­tantly, in prac­tice. The other bed­fel­low is neu­tral­ity. The con­sti­tu­tion sought to en­sure that the INEC is non­par­ti­san be­cause it will be a con­tra­dic­tion in terms for the ref­eree to also be a com­peti­tor. In fact, the third sched­ule to the First Al­ter­ation went to the ex­tent of ex­pressly declar­ing that any per­son to be ap­pointed to INEC shall be “non-par­ti­san”.

It is this pro­vi­sion that puts the ar­gu­ment against Lau­retta Onochie be­yond any doubt. She’s not only a card-car­ry­ing mem­ber of the rul­ing party but also a serv­ing ap­pointee of the pres­i­dent. And, as the mouth­piece of the pres­i­dent on so­cial me­dia, she has used her po­si­tion to at­tack not only the op­po­si­tion, but also other Nigerians crit­i­cal of her boss. While the le­git­i­macy of these at­tacks is fair de­bate, what is un­de­bat­able is her par­ti­san­ship. If be­ing regis­tered as a party mem­ber, pub­licly cam­paign­ing for it and be­ing ap­pointed by it isn’t enough ev­i­dence of par­ti­san­ship, noth­ing can be.

Stock­ing INEC with politi­cians is ex­tremely dan­ger­ous to its in­de­pen­dence, image and most im­por­tantly to Nige­ria’s democ­racy. More than any other body, INEC must be shielded from even the re­motest ap­pear­ance of im­pro­pri­ety or bias. Pres­i­dent Buhari has re­peat­edly as­sured Nigerians and the in­ter­na­tional com­mu­nity that he’s com­mit­ted to free and fair elec­tions. His nom­i­nat­ing a mem­ber of his party and his special as­sis­tant to the board of the elec­toral watchdog un­der­mines these pledges, as ac­tion speaks louder than words. The pres­i­dent should with­draw Lau­retta Onochie in the in­ter­est of his legacy and Nige­ria’s democ­racy.

If the pres­i­dent re­fuses to re­place this nom­i­nee, the Na­tional Assem­bly should re­ject her. I know this is a tough call for the Pres­i­dent of the Se­nate and the ma­jor­ity of his col­leagues who are mem­bers of the rul­ing po­lit­i­cal party, but they need to re­mem­ber their own con­sti­tu­tional du­ties and put the coun­try be­fore the party. Re­ject­ing this can­di­date is not only the right thing, but also set­ting a wor­thy ex­am­ple for gen­er­a­tions yet un­born. If they elect to put par­ti­san in­ter­est be­fore the rule of law and con­sti­tu­tion­al­ism, they have put our democ­racy on a dan­ger­ous course and will have them­selves to blame if a fu­ture pres­i­dent ap­points their fam­ily and friends to INEC.

If both the pres­i­dent and the Se­nate fail to do the right thing, civil lib­erty and prodemoc­racy groups and in­di­vid­u­als must rise to the oc­ca­sion by bring­ing a le­gal chal­lenge against this un­con­sti­tu­tion­ally. We can­not fold our arms as politi­cians jeop­ar­dise our right to freely and trans­par­ently choose our lead­ers. If we choose to give this a pass, we’ve as­sented to the most stripped bas­tardi­s­a­tion of our democ­racy yet and have paved the way for worse.

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