Jega’s Tenure Ends On March 24, 2015 By Operation Of Law
By Aloy Ejimakor
In the interest of full disclosure, let me say from the outset that
this piece is nonpartisan. It is, instead, an apolitical academic
exercise, primarily intended as a simple legal treatise, without being
personal, on the legalities of tenure of Prof Attahiru Jega as INEC
Chairman. Having said that, let me then give reasons why Jega’s tenure
legally or actually comes to end on March 24, 2015, instead of the
presumptive June 24, 2015.
Jega was appointed by President Jonathan on June 8, 2010, and
confirmed by the Senate on June 24, 2010. Under the law, his tenure runs
for five years. Mathematically, therefore his tenure ‘exactly’ ends on
June 24, 2015, counting from the date of Senate confirmation.
But accordingly to extant rules and our time-honored conventions,
his tenure ‘actually’ comes to an end on March 24 because he is
required, without more, to compulsorily proceed on terminal leave three
months to the mathematical end of his tenure. And this is being very
generous because, if you go by the ‘doctrine of relation back’, a strong
case can be made that his terminal leave shall commence on March 8 (the
date he was appointed), instead of March 24 (the date he was
confirmed).
For those who might argue otherwise, there are legions of
precedents, including, most notably, that of Jega’s predecessor, Prof
Maurice Iwu. Iwu’s tenure was due to expire on June 13, 2010. However,
on April 28, 2010, then acting President Jonathan, ordered Iwu to
proceed on terminal leave. That Iwu’s own terminal leave was less than
three months to his mathematical five years was probably a matter of
expediency of that turbulent era and presidential grace, to boot.
In recent times, we have seen other equally
constitutionally-tenured public servants proceed on terminal leave
before the exact date of expiration of their tenure. Here are few
examples. Former IGP Abubakar’s tenure was due to end on July 30, 2014
but he proceeded or was sent on terminal leave on May 12, 2014.
Former Chief Justice of the Federation, Justice Dahiru Musdapher
voluntarily proceeded on terminal leave three months before the
constitutional or mathematical end of his tenure. Ditto for former PCA,
Justice Salami, even though his own was somewhat exceptional because he
was on suspension when his terminal leave clock began to tick. I might
add that Salami fought his for its exceptional equities but still lost.
Jega has no such equities.
To underscore that there are no exceptions, the Federal Government,
in a well-received circular issued by the former Head of Service,
Alhaji Isa Bello Sali, had “called on those affected to comply with
immediate effect by observing the three months terminal leave as
provided for in the extant Rules”. Unarguably, those affected included,
without exceptions, all public servants that have constitutional or
legal tenure, either based on fixed tenure-track, as in the case of Iwu,
Jega, etc; or straight retirement based on 35 years service (the IGP)
or age (Justice Musdapher).
According to the circular, which is captioned ‘Three Months
Pre-Retirement/Terminal Leave’, the government stated that “It has been
observed that the mandatory notice of retirement for officers who are
due to retire is not being observed as provided for in the extant
rules. Accordingly, it has become necessary to reiterate the provisions
of Public Service Rules (PSR) 100238 which states that officers are
required to give three months notice of their retirement from service
terminating on the effective date of their retirement”. For avoidance of
doubt, the term retirement, in context, applies, mutatis mutandis, to
those on fixed tenure like Jega.
The circular was addressed and sent to the Chief of Staff to the
President, Chief Justice of the Federation, all Ministers, Secretary to
the Government of the Federation, Service Chiefs, the Inspector-General
of Police, Chairman Federal Civil Service Commission, the Chairman,
Economic and Financial Crimes Commission (EFCC), and the Chairman of
Independent National Electoral Commission (INEC). Others are Heads of
extra-ministerial departments, the Accountant-General of the Federation,
Auditor-General of the Federation, Surveyor-General of the Federation,
Directors-General/chief executives of parastatals and agencies.
So, as we can see from above, it is left for Jega to decide between
these two options: It is either he voluntarily proceeds on his terminal
leave by March 24, 2015, or he may be forced to do so by executive
fiat. If, however, he is emboldened to sit tight, he has to know that
any extra day he spends in office beyond March 24 is not by any force of
law but by the sheer good graces of President Jonathan.
Aloy Ejimakor, a lawyer wrote in from alloylaw@yahoo.com
08032651660 (Texts only)
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