Date Published: 04/27/09
IWU: IN THE EYES OF THE LAW
By Chimezie Elemuo
After the colossal failure of the conduct of the 2007 general election, the call for Iwu’s remove has not abated. That call reached its peak in recent weeks. The issues are whether Iwu can be removed by executive fiat. Whether he has an absolute tenure of five years and when is such tenure to expire. Iwu has claimed that he has an absolute tenure of five years. Equally, he believes that his tenure expires in 2010. There have been varied opinions on this issues making one to muse. Attempt will be made in this write up to digest the issues involved for clearer understanding.
Section 153 of the constitution created the Independent National Electoral Commission. Section 154(1) deals with appointment of the Chairman and members. This section states that:-
“Except in the case of ex officio members or where others provisions are made in this Constitution, the chairman and members of any of the bodies so established shall, subject to the provisions of this constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate”.
Section 154(3) states that:-
“In exercising his 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.”
From these two sub sections, in appointing the chairman of the Independent National Electoral Commission, the president shall consult the Council of State and subject to the confirmation of the Senate. Section 155 (1) (c) of the constitution states that:
155(1) “A person who is a member of any of the bodies established as aforesaid shall, subject to the provisions of this Part remain a member thereof.
(c) “In the case of a person who is a member otherwise than as ex officio member of otherwise than by virtue of his having previously held an office, for a period of five years from the date of his appointment.”
It is agreed that our constitution is verbosely drafted. That not withstanding, what this section is simply saying is that except an ex officio member or a person who has previously held an office in the commission, the tenure of every member is five years. In other words, if the member is not an ex officio member or he has not held office previously, his tenure is five years guaranteed. In Iwu’s case, he was appointed INEC Commissioner in 2003 and later as chairman in 2005. So when does his tenure expire? Calling in aid S.155 (1) (c) of the constitution, Iwu’s tenure expires five years from the date he was appointed INEC Commissioner. Some have argued that by appointing him the commission chairman, his tenure as commissioner has extinguished. Therefore, his five years starts running from the date he was appointed chairman. This is far from the truth. The constitution did not distinguish between a member, Commissioner or Chairman of the commission. They are all members of the commission. Section 161 (c) states:
161 “In this part of this Chapter, unless the context otherwise requires:
(c) any reference to “member” of a body established by section 153 of this constitution shall be construed as including a reference to the chairman of that body;
From the foregoing, there is no difference between a member and the chairman. Therefore, Iwu’s tenure starts running from his first appointment.
Iwu has been deluding himself that he has an absolute term of office. That he cannot be removed. Section 157(1) of the constitution states that “subject to the provisions of subsection (3) of this 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 enability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.” It is agreed that he cannot be removed by executive fiat. The word “any other cause” as found in the bracket according to Oguntade JSC in Govt. of Kwara State & Anor V. Ojibara & 6 ors (2006) 11 – 12 SC p. 142 “is embracive and much more extensive in scope than infirmity of mind or body.” The act of annulling the Imo State Governorship election while allowing the State House of Assembly Election that was held same day in the same ballot is enough to remove Iwu and falls within the Phrase “ny other cause.”
The question whether a member of INEC or its chairman can be removed by executive fiat has been answered in Govt. of Kwara State & Anor V. Ojibara & 6 ors (Supra). The facts briefly put are that the Kwara State House of Assembly passed a resolution that the Kwara State Independent Electoral Commission be dissolved after being asked to do so by the state governor on the floor of the House.
Acting on the resolution passed by the House the governor dissolved the Commission. The commission took out an Originating Summons against the governor. The matter dragged up to the Supreme Court. The Supreme Court per the sagacious Oguntade JSC who read the leading judgement held that members of the commission cannot be removed by executive fiat or the Commission dissolved as such. His Lordship held that “the tenure of the Governor of a state under the 1999 Constitution as well as that of the state legislature is four years. The constitution however grants the members of a state Independent Electoral Commission, a tenure of five years. It ought not to escape attention that the deliberate purpose of the Constitutions is to create an Electoral Commission, the lifespan of which exceeds those of both the Governor and the State Legislature. This is done with a view to create continuity and stability in the electoral process and governance. The same is done in relation to the State Civil Service Commission and the State Judicial Service Commission. It is not the intendment of the Constitution that the membership of those Commissions should change with the fortunes of the political parties in a state”
This not withstanding, lwu’s tenure in office is not absolute. It is only constitutionally guaranteed. In other words, there are conditions attached to it. From the following constitutional provisions spelt out above, Iwu’s tenure in office expired in 2008.
Chimezie Elemuo is a Port Highcourt based lawyyer. 08070117.
