The question as to whether or not the President is empowered, under Section 156 (1) of the Constitution, to appoint partisan politicians and members of political parties as either National or Resident Electoral Commissioners will be resolved early next year.
Justice Okechukwu Okeke of the Federal High Court, Lagos has fixed January 17 for judgment in a suit by the Minority Leader, House of Representatives, Femi Gbajabiamila.
The suit specifically urged the court to interpret Section 156 (1) in determining in determining whether or not the President was in error in appointing known members of political parties as both National Electoral Commissioner (NEC) and Resident Electoral Commissioner (REC) for the Independent National Electoral Commission (INEC).
Justice Okeke chose the date after entertaining argument form parties, who equally adopted their final written addresses.
Before adopting his address, plaintiff’s lawyer, Seni Adio cited examples of known members of political parties appointed by the President as NEC and REC.
He contended that although the defendants denied that the appointees were still members of political parties when they were appointed, they (defendants) failed to adduce evidence to that effect.
He urged the court to ignore the defendants’ argument s and grant his client’s prayers as contained in the originating summons
Named as defendants in the suit are the President, the President of the Senate, the Senate, the Clerk of the Senate, the Attorney General of the Federation (AGF), INEC and its Chairman.
Gbajabiamila ,in the originating summons, set a single question for the court’s determination – Whether section 156(1)(a) or any other section of the Constitution empowers the President, the Senate, its President and the Clerk of the Senate to appoint and/or confirm the appointment of persons who are members of political parties as RECs and Electoral Commissioners (ECs).
He averred, in a supporting affidavit, that the said appointment made in October, included persons who are members of the Peoples Democratic Party (PDP). He cited the examples of Ambassador Mohammed Anka, Major General Bagudu Mammman, Alhaji Yakubu Shehu and Mr. Eddy Nwatalari.
Gbajabiamila stated that some of the appointees even contested elections in years and had held offices in their parties.
He prayed the court for among others, an order nullifying the purported appointment of the named RECs, a perpetual injunction restraining the President, the Senate, its President and the Clerk of the Senate from further appointing and/or confirming the appointment of political party members as RECs or ECs of INEC.
Gbajabiamila also seeks a declaration that the Constitution did not empower the President, the Senate, its President and the Clerk of the Senate to appoint party members as either RECs or ECs, and a declaration that the purported appointment of the said PDP members as RECs is unconstitutional.
He filed further affidavit in which he averred that Ambassador Lawrence Nwuruku and Dr. Gabriel Ada’s appointments as RECs have been confirmed, subsequent upon which they have assumed their offices.
Gbajabiamila attached exhibits indicating that Nwuruku once contested gubernatorial election in Ebonyi State and is a member of the PDP. He also stated that Ada , as a member of the All Nigeria Peoples’ Party (ANPP), was once the Speaker of the Cross Rivers State ’s House of Assembly.
The defendants filed two deferent counter affidavits in opposition to the suit. They prayed the court to dismiss it. While the President and AGF sought the dismissal of the suit on the ground that the appointments complained of were in accordance with the Constitution, the Senate, its President and Clerk argued that granting the plaintiffs’ prayers would amount to re-writing the Constitution.
INEC and its Chairman failed to file any process in respond to the suit.
The President and AGF, in their counter-affidavit deposed to by Ilop Lawrence of the Federal Ministry of Justice, Abuja, denied that the appointees were members of political parties as at the time of their appointment.
They argued that the President has the constitutional powers to appoint RECs, subject only to the confirmation by the Senate without any consultation with anyone. They contended that neither will the interests of the country and the plaintiff be prejudiced by the appointments, which had been made and confirmed by the Senate, nor will the country’s democracy be threatened.
The duo formulated one issue for determination in their written address -Whether the 1, 2, 3 and 4 defendants (the President, the Senate, the Senate President and the Clerk of the Senate) have the constitutional powers to appoint and/or confirm appointment to the offices of Resident Electoral Commissioners of the 6th defendant
They submit that under the provision of Section 154 of the Constitution, as amended in 2011, the 1, 2,3 and 4 defendants have the constitutional powers to appoint/confirm the appointment to the offices of the REC or Electoral Commissioners of the 6th defendant (INEC).
The defendants argued that all appointments that are subject matter of the suit met the condition stipulated in section 156 of the Constitution and were not disqualified in any manner.
They submitted that the implication of the provisions of Section 156 (1) (a) of the Constitution with reference to membership of political parties, does not mean that an appointee must never have been a member of a party in his/her life.
The Senate President, the Senate and its Clerk argued, in their counter-affidavit, that the provision of Section 156 (1) of the Constitution contains absurdity which gives no clear provision as regard the actual qualification for appointment for the positions.
The three argued that it was absurd that while the proviso in Section 156 (1) (a) of the Constitution prohibits the appointment of members of political parties, it also made membership of political party as requirement for qualification for appointment.
They contended that the Constitution also did not clearly preclude them (the Senate, its president and its Clerk) from confirming the appointment of persons to fill the positions of REC and NEC in INEC on the basis of being a political party member.
They argued that the Constitution did not clearly prohibit the appointment and subsequent confirmation of persons on the ground of having contested election before.
The Senate President, the Senate and its Clerk urged the court to dismiss the suit on the ground that the plaintiff’s prayers, if granted, would amount to judicial legislation and judicial amendment of the Constitution.
