The President should only find a nominee unacceptable for some good reason
on objective grounds. If a President were permitted, capriciously or
whimsically, without proffering a good reason, to reject eligible nominees, this
would frustrate the proper working of the Constitution, defeat the intention
behind the amendment to Article 161(2) and pave the way for unilateral
presidential appointment.
[28]
Once the President and the Leader of the Opposition have hammered out a list
of names not unacceptable to the President, the list, comprising the six persons,
must then formally be submitted to the President by the Leader of the
Opposition and the President must then select the Chairman from among those
names. This approach gives the President a role in the identification of the six
names, but it obviates the possibility that, after the formal presentation of the
list, the President could suggest that one or more of the names, or indeed the
entire list, is ‘unacceptable’. Unilateral appointment by the President in keeping
with the proviso to Article 161(2) can hardly be an option if the Leader of the
Opposition demonstrates a willingness to engage in good faith the process
outlined above.
[29]
As we stated earlier, the President’s power to appoint the Elections Commission
Chairman in keeping with Article 161(2) is a constitutionally prescribed
responsibility that is subject to judicial scrutiny. In reviewing what transpired
here between 22 November 2016 and 19 November 2017, it is evident to us that
the President was not entitled to lay down, as a precondition to considering a
nominee, eligibility requirements that were additional to or at variance with
those prescribed by the Constitution. So, for example, it was unfortunate that
the President considered or was advised that an acceptable candidate should
either have or be deemed to have wide electoral knowledge and experience. As
Counsel for Mr Mustapha pointed out, it is not unusual for a distinguished judge
to have gone through her entire judicial career without trying a single elections
case.
[30]
Nothing in this judgment is intended, in the slightest degree, to cast aspersions
on the competence and suitability of Justice Patterson for the position of