Why Jonathan can’t send Jega on leave

Any attempt to send  Independent National Electoral Commission (INEC) Chairman Prof Attahiru Jega on terminal leave will be illegal, lawyers said yesterday.
According to them, the 1999 Constitution specifically provides that the INEC chief can only be removed if there is evidence that he is unable to discharge the functions of his office or for misconduct.
Calls for the removal of Jega and his resignation by Peoples Democratic Party (PDP) sympathisers for some reasons, including INEC’s failure to distribute the Permanent Voter Cards (PVCs) to all potential voters, have been intensified since the postponement of the February 14 and 28 elections.
The President Goodluck Jonathan Lagos Grassroots Project, one of the numerous groups rooting for Jonathan’s re-election, has been running advertorials in newspapers disparaging the INEC chief and calling for his resignation.
Spokesman of the INEC chair Mr. Kayode Idowu, denied that the electoral agency had been manipulating the PVCs distribution.
Yesterday, lawyers noted that Section 157 of the Constitution provides that Jega can only be removed by the President with the support of two thirds of the Senate.
Asking him to go on terminal leave before the expiration of his term, they said, equates to removal from office.
Unless there evidence that Jega is infirm in mind or body, or has engaged in gross misconduct, he cannot be removed under any guise before the end of his tenure, the lawyers said.
Section 157 says: “(INEC chairman) may only be removed from 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.”
A legal scholar, Mr. Wahab Shittu, said Jonathan removing Jega under the guise of retirement leave, weeks to the election in which he is a contestant, is like a team changing a referee before a football match kicks off.
“My answer to that will be to draw an analogy. The President is a contestant in the forthcoming presidential election. He’s an interested party.
“If you liken that to two football teams which are competing, can one of the teams just before the game starts decide to send the referee on suspension or on leave?
“The president cannot do that because he is in the race. If the president takes such a measure, it will be seen as a coup against the democratic process and a subversion of the will of the people.
“I want to believe that it is a speculation. It is in the realm of conjecture. It is something that can never happen because the president will not ordinarily toil with the wishes and aspirations of the Nigerian people.
“Jonathan cannot even ask Jega to proceed on leave without getting the support of two-thirds of the Senate.
“Again, every law derives its legitimacy from the will of the people. Nothing has been done by Jega to deserve any such treatment,” Shittu said.
To a former Nigerian Bar Association (NBA) president, Chief Wole Olanipekun (SAN), it is unimaginable that Jega would be removed in the middle of an electoral process.
“I do not think the President will do it or even contemplate it. Not at this period.
“Prof Jega’s tenure as INEC chairman is regulated by the constitution and under the same constitution, the INEC chairman is the returning officer for presidential election.
“If Jega is sent on terminal leave now, it will amount to sabotaging the already scheduled elections.
“The President will have to nominate another person who will be subjected to security screening.
“After that, the name will be forwarded to the National Assembly for approval and all this cannot be done within the six weeks we have to conduct the elections.
“Let us assume they are able to conclude the clearance process within six weeks, when does the man settle down to plan for election if May 29 is sacrosanct?
“There are a lot of logistics problem that will be involved and so, I have serious reason to believe that no president will contemplate such a thing at this time.
“The inherent dangers are limitless and if that is done, we should as well forget about holding elections and the May 29 handover date.
“If May 29 is sacrosanct, INEC chairman’s tenure is sacrosanct.  People arguing that it is line with civil service procedure for a public officer who haven’t gone on annual leave to proceed on three months terminal leave should tell us if the President’s ministers will also proceed on three months terminal leave. I think it is better not done.”
Minority Leader of the House of Representatives Femi Gbajabiamila said the President lacks the power to remove Jega before the expiration of his appointment on June 30.
Gbajabiamila, a lawyer, who noted that although the administration of President Jonathan is capable of doing anything, said the removal of the INEC chairman is beyond the President because it is a constitutional matter.
“In the last few days, we have been inundated with speculations about the possible termination of Jega’s appointment as INEC Chairman.
“This may be unfounded but may also have a basis in truth because you just can’t put anything past this government.
“From a legal standpoint, I do not think any such attempt can pass constitutional muster.
”Firstly, I do not consider the INEC Chairman as a civil servant subject to civil service rules.  “There is a difference between a civil servant and a public servant or officer. Jega falls under the latter. INEC and its chairman are a creation of the constitution.
“Their operations, rules and regulations are as provided under sections 156 and 160 of the constitution which expressly states that only INEC has the powers to regulate its own procedures and cannot be subject to approval of the President or any other authority thereby establishing its independence.
“Secondly, ‘terminal leave’ is a form of removal, whichever way you cut or slice it and Section 157 of the constitution is very clear that the removal of the chairman of INEC can only be initiated by two-thirds of the Senate and not by the President.
“The question of who is a civil servant is answered in Section 171 of the Constitution and the INEC chairman is not included.”

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