Ayoka Adebayo and the Right to Resign

As the Ekiti story unravels, along with different strands of rumours and theories, one particular dangling angle has continued to alternately amuse and nag. In Guardian’s lead story on April 29 2009, following the alleged resignation of Mrs. Adebayo, the Resident Electoral Commissioner for Ekiti State, it was reported that the Federal Government had rejected Adebayo's resignation and ordered her to report to INEC office or the nearest police station. This was cause for amusement.
In the article, the Minister for Information and Communication, Prof. Dora Akunyili said that “the purported letter from all indications is intended to undermine and discredit the government, the government rejects the letter of resignation written by Mrs. Adebayo as there was no evidence that she was impeded from carrying out her statutory assignment functions". Now this was cause for alarm.
The alarm was because it just did not sound right to me that a person could not resign from a job if they wished to. What I had learned in general employment contract law was that no employer could bind an employee to labour. However, there could be conditions attached to leaving a position such as restrictions against working for competitors, requirements that an ex –employee could not work closer than a specific radius to the ex-employer or even conditions not to take ‘clients’ or ‘customers’ of the employer. The thought of an out right negation of the right to resign was just foreign and dodgy. This feeling was not helped by Prof. Maurice Iwu’s enlightenment on the legality of Mrs Adebayo’s resignation. According to him, “INEC Commissioners are appointed according to the nation's constitution and can only be removed by the President acting on an address, supported by the two-thirds majority of the Senate showing that he or she be so removed for inability to discharge the functions of the office whether arising from the infirmity of mind or body or any other cause or for misconduct”.
If by this assertion he was suggesting that the only way a person could leave a public job provided for under the Nigerian Constitution was by the literal interpretation of the removal clauses, then such thinking is scary in its deliberate intent to misconstrue. Typically such provisions are to secure the independence of the person(s) holding such public roles; to ensure that they can stand up to those in power who are prone to abuse this power and not have their jobs threatened. To turn around and use this protection against interference as the basis to deny such officers the right to resign seems so Machiavellian on one hand and simply retarded on the other.
If the President of Nigeria can resign as provided for in Section 135 of the 1999 Constitution, how can Prof. Iwu’s theory that Mrs. Adebayo cannot resign her position as a public officer in a constitutionally guaranteed role be correct?
I was so sure I would not find anything to support Iwu’s position and as I scoured my usual resource; the internet, for a copy of the INEC law, I got more confident especially after I found it on the INEC website (www.inecnigeria.org). However when at 12.30am only 9.8MB of the 51.81MB had been downloaded; I gave up – so it remains a mystery to me what the law says about national or resident commissioners resigning.
What I did learn from other jurisdictions, specifically, New York is that the resignation of a public employee is not necessarily effective immediately – depending on the terms of employment, there might have to be express or implied acceptance of the resignation. For instance, in Vinuluan v. Doyle, a US appellate case, the court had to prohibit the criminal prosecution of a group of nurses who had resigned en masse despite the fact that their employment contract said they must remain employed for three years with liquidated damages (penalties) of $25,000 if they broke the contract. The employers felt they had a right to sue but on the basis of the Thirteenth Amendment (abolishing slavery and involuntary servitude), the court denied them this right.
So the same principle (regardless of what Prof Iwu thinks and whatever provisions might be in the Electoral Act 2006) arguably applies to Mrs. Adebayo. Under Section 34 of the 1999 Constitution, no Nigerian shall be held in slavery or servitude and no Nigerian shall be required to perform forced or compulsory labour.
Another New York law for Public Officers provides for semi automatic resignation which is expected to take effect either upon delivery to the appropriate authority or thirty days after the delivery. The latter requirement shows that a resignation by officers covered by this law would not be effective immediately. This means that if this was what the Electoral Act provided for in terms of its employment of Resident Electoral Commissioners, despite her resignation, Mrs. Adebayo would still have been bound to finalise and tidy up the elections in Ekiti (provided that the election engineering would have been completed within the applicable time).
If the law regulating the employment of RECs, was substantive and known to the parties concerned then Nigeria might have been spared the embarrassing debacle of some of Nigeria’s senior government officials (the Inspector-General of Police, Mr. Mike Okiro, alongside the Minister of Information and Communications, Prof. Dora Akunyili, and Iwu) blithely stating that the resignation of Mrs Adebayo had been rejected without providing proper legal reasoning for this rejection.
The important lesson for Prof Iwu, President Yar’adua and the PDP ‘machine’ is that as they should take advantage of the proposed review of the Electoral Act to ensure that the terms of employment of INEC officials includes provisions which make it hard for them to resign before their responsibilities have been executed. Their responsibilities could even be transferable to their next on kin in the case of their untimely death.
The other lesson is for draftsmen and policy makers: to remember that law can be used to help us navigate tricky and sometimes implausible situations but because our laws are rarely well drafted and even less well thought out we continuously find ourselves at the brink of anarchy – ironically, when we are supposed to be adhering to the rule of law.