also be excluded because Jega has said that he won't resign. Ditto for terminal leave because that has been discussed enough by my humble self and others, and it is all there in the public domain.
That leaves us with 'suspension' – the next plausible avenue Jega can go, but which has been hardly debated. If anybody is wondering why I am writing this, then hear this: I have nothing personal against Jega. I am merely flagging the other means, even though latent and unpleasant, through which his tenure might end suddenly before his date with March 28. But, as many folks don't know, or won't admit, it is squarely within the powers of the President, not the Senate, to suspend Jega, and it can happen at any time of the President's choosing. Below are the points and authorities:
First, under the Interpretation Act, the President has the authority to suspend any public officer appointed by him, regardless of whether they were subject to Senate confirmation or not; or appointed for a fixed tenure. Here is the black letter provisions, as enacted at Section 11(1): 'Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes power to remove or suspend him'.
So, there you have it in plain letters – that the President, as the 'appointing' power is, ipso facto, the 'suspending' power as well. And most tellingly, while the Constitution expressly requires the consent of the Senate before the President can remove (not suspend) Jega, there is no similar legislative check on the President's power to suspend him. Plus, pertinent laws made a clear distinction between removal and suspension; so there is no room for ever confusing or commingling the two. And now this: the law clearly says that such public officer can still be suspended despite being appointed for a 'specified period'. Jega was appointed for a specified period of 5 years.
Second, if you are amongst those who argue that to hold elections legally requires a substantive (or Senate-confirmed) INEC chairman, you now must know that the Constitution envisaged and took care of that. This is found at Section 318(2), which says that 'Wherever it is provided that any authority or person has power to make an appointment to an office, such power shall be construed as including the power to make such appointment, whether on promotion or otherwise, or to act in any such office'.
Continuing, Section 318(3), says that 'references to a person holding an office shall include reference to a person acting in such office'. And there is more at Section 11(1) of the Interpretation Act, which says 'Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested'.
Then, Section 11(2) adds the clincher that 'A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be'.
The plain meaning of the foregoing provisions is simply that our laws don't strictly require a substantive INEC chairman for elections to hold; and the President can legally appoint an acting INEC chairman, if he so chooses.Thus, other than Jega, any of the 12 national commissioners, appointed by the President in acting capacity, can legally proceed to conduct the 2015 elections.
Third, having thus far established the discretionary powers of the President to suspend Jega, let us now turn to the reasons the President might adduce for taking such course of action, even though nothing in the pertinent laws require the President to give any reasons. Yet, if he chooses to, the President can readily take umbrage under the Constitution, which provides at Section 160(1) that 'any of the bodies may, with the approval of the President, by rules or otherwise regulate its own procedure”.
The bodies referenced above are the statutory ones created under the Constitution, amongst which INEC is included. So, the next logical question is whether Jega has unilaterally been making 'rules or otherwise regulating INEC procedures' without the approval of the President? It appears he has been doing exactly that, as is evidenced by his publicized many acts of insubordination to the President. That alone, without more, means that Jega has serially and brazenly violated the letters and spirit of Section 160 of the Constitution.
Therefore, it is no longer a question of whether he is amenable to being suspended or not, but when and if the President will see fit to do so, as a matter of lawful and sound exercise of his discretionary powers.
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