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

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.