Parties involved in the crisis have continued to trade blames on the violation of laws, while Nigerians have been wondering how the crisis would be resolved .
Already, the NJC had given a matching order to one of the most senior judges in the State judiciary to oversee its affairs, this time, Justice Daisy Okocha. The NJC in its memo claimed it acted in order to ensure that there was no abeyance in activities of the state judiciary.
It further attributed its decision on the enabling law empowering it to supervise or appoint an acting or administrative judge to oversee the state judiciary.
Directive of the NJC
However, the directive of the NJC presided over by the Chief Justice of Nigeria, (CJN), Justice Mariam Aloma Mukhtar did not go down well with the state government which had claimed the body acted ultra-vires on the issue.
In its reaction, the Rivers State government posited that there was a subsisting judgment of a Federal High Court which ordered the appointment of the sacked Chief Judge of the State, Justice Peter Agumagu, whom the state governor, Mr. Rotimi Amaechi appointed and inaugurated on March 18.
Both parties had cling to their different positions, however, observers have been watching development in the state with keen interest, wondering when the whole drama will end. Already, lawyers have reacted to the matter and concluded that both party need to adhere to the provisions of the constitution.
*Aloma Mariam Mukhtar
*Aloma Mariam Mukhtar
As things stand now, the NJC had queried and suspended Justice Agumagu as a judicial officer for allegedly violating Section 271(1) of the constitution by submitting himself for confirmation by the state House of Assembly and swearing-in by the governor as the state’s substantive Chief Judge without being recommended by the council..
The body claimed it acted pursuant to paragraph 21(d) of Part 1 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended.
The suspension and the subsequent directive on the appointment of acting Judge or administrative judge as the case may be and the decision of the Rivers State government not to tow the line of the NJC may eventually throw the state judiciary into further confusion.
The NJC had in the past rejected nominees from state governors which had pitched them against the body. For instance, Adamawa State in the past two years does not have a substantive judge because Gov. Murtala Nyako has refused to follow the constitutional provision. In Abia State, Governor Theodore Orji’s attempt to nominate a judge who is 19th in the hierarchy was rejected by the NJC. Same was the case in Osun State when Governor Rauf Aregbesola attempted to impose Justice Joseph Oyewole of the Lagos State High Court on the people of the state.
Rivers State has argued that its position was based on its decision to uphold and defend the law and the constitution of the land.
Constitution of the land
Putting the record straight, the mode of appointment for a state High Court is governed by section 271(1) of the 1999 Constitution. Also, the jurisdiction of the High Court is provided for by section 272 of the same Constitution.
To fill a vacancy in the office of the Chief Judge of the state, section 271(4) of the 1999 Constitution provides that until a substantive appointment is made filling the vacancy, the most senior Judge of the High Court shall be appointed to perform the functions of the Chief Judge in an acting capacity.
Juxtaposing the arguments canvassed by the two opposing forces, either body cannot act without the other. Section 271(1) of the Constitution states: “The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.”
The state government has been insisting it acted in line with the constitution, but the NJC faulted the argument, maintaining the state needs to abide by its recommendation.
Reacting to the development, lawyers have viewed the issue from different perspective.
Mr Femi Falana, SAN, said, “As the NJC is not an appointing authority, it lacks the power to suspend the Chief Judge of Rivers State or any judge in Nigeria for that matter. Section 11 (1) of the Interpretation Act provides that where an enactment confers a power to appoint a person to an office or to exercise any functions, whether for a specified period or not, the power includes the power to remove or suspend him. In the case of Justice Salami, the NJC illegally suspended him from office, President Goodluck Jonathan approved the suspension and appointed an acting President for the Court. However, when the NJC decided to recommend his reinstatement, it was rejected by the appointing authority.
Unwarranted ridicule
“In conclusion, since the suspension of the Rivers State Chief Judge is illegal and unconstitutional, the NJC should reverse it without any delay. It should also withdraw the query issued to the Chief Judge since his appointment was predicated on a judgment of the Federal High Court. Instead of exposing the judiciary to unwarranted ridicule the NJC is advised to pursue the appeal which it has filed against the judgment of the Federal High Court on the crisis.”
Prof Chidi Odinkalu, in his take argued, “Here is the story: a Federal High Court rules NJC out of line. Rivers State governor proceeds to appoint a CJ. NJC believes governor of Rivers State acted unlawfully in not returning to it for a recommendation, says the CJ appointed by the Rivers Gov is suspended. The suspended CJ headed to court against the NJC. While he is in court, NJC says someone should become administrative judge. There’s one word for it: end-run. It’s not on.
“You see, when people are talking about Ag. CJ; NJC speaks about Administrative Judge. When did NJC start designating Administrative Judge. Clearly, they know it’s not their province to designate Ag. CJ, which is why their release avoided that nomenclature. So, from where did they derive the power to designate Administrative Judge – whatever that means for a State?
“The Constitution speaks about Chief Judge; Ag. Chief Judge. But Administrative Judge? That’s entirely in the imagination of the alchemists of the NJC. Clearly, the institution is now damaged by clear perception that it’s serving cause(s) entirely of its own making here.
“If the Constitution says the most-senior judge should take over and if Justice Okocha is indeed the most senior judge, why does she need the NJC to demote her to administrative judge? And if the NJC’s decision over the suspension of the Governor’s appointed CJ is in court, doesn’t the NJC come across as manufacturing subterfuge in order to invent it’s administrative judge gig?
“Quite apart from this, the NJC is an executive body, never mind that it’s headed by the CJN and dominated by judges. As NJC, they’re exercising executive power. But they’re using superior judicial positions to intimidate lower courts and make it impossible for courts to do what they’re there for.
Idea of rule of law
We don’t have to agree with the courts. But if we don’t defend what they do and protect them in doing so, even the powerful people on the NJC today will be endangered tomorrow when they’re no longer as powerful as they think they are today. A system like that brings the idea of rule of law to ruin.”
Another lawyer and rights activist, Mr Bamidele Aturu said, “The NJC is an executive body and not a judicial institution as has been repeatedly pointed out. It’s decisions even when in utmost fidelity with the law does not have the force of law. Now, when it takes decisions that not only violate the principles of the rule of law, but actually mock it, then we must do all in our power not only to ensure that it reverses the offensive decisions, one way or the other.
“But that it gets punished for egregious infraction of our laws. It appears this elementary point has been tragically missed by that body. We should be thinking in what ways we can punish the NJC legally and politically. But beyond this, it is time to put on the agenda, a reform of that body by legislative means.”
However, disagreeing with the above positions, Ms Carol Ajie said, “The Constitution says if the office of the CJ of a state is vacant or if the person holding the office is for any reason unable to perform the functions of the office, until a person has been appointed to assume the function, the most senior Judge of the High Court shall perform those functions. (s271(4) CFRN 1999.)
Perceived deficiencies
“Gov Amaechi’s instinctual drive and unexplained anger over NJC/Ms Mukhtar’s pick, Justice Okocha created some bottlenecks when Amaechi mis-read NJC’s recommendation as coming with some perceived deficiencies. He therefore, interfered with it, preferred Agumagwu J over Okocha J, thereupon threw up that avoidable judicial competition.
“The next in hierarchy, senior lady Judge Okocha is perfect for the CJ-ship appointment and she deserves it.”
Also, the NJC apart from its arguments on Section 158 of the constitution which empowers it to take independent disciplinary control on judicial officers, it argued that suspended Justice Agumagu, was not from the Bench of the High Court as stipulated by the constitution.
Specifically, it argued, “the mode of appointment for a state High Court is governed by section 271 of the 1999 Constitution while that of a state Customary Court of Appeal , where Justice Agumagu is coming from is governed by the provisions of section 281. Also, the jurisdiction of the High Court is provided for by section 272 of the 1999 Constitution. The jurisdiction of the Customary Court of Appeal of a state is provided for by section 282 of the 1999 Constitution.
Second, “where a vacancy occurs in the office of the Chief Judge of the state, section 271(4) of the 1999 Constitution provides that until a substantive appointment is made filling the vacancy, the ‘most senior Judge of the High Court’ shall be appointed to perform the functions of the Chief Judge in an acting capacity.
The section does not say the most senior judge of the Customary Court of Appeal or President of the Customary Court of Appeal, but the most senior judge of the High Court.
Third, Section 281(4) of the 1999 Constitution provides that where a vacancy occurs in the office of the President of the Customary Court of Appeal, the most senior judge of the Customary Court of Appeal shall act in the office until a substantive President of the Court of Appeal is appointed.”
Suspension:On his suspension, Justice Agumagu submitted in his suit that , “It is the governor under section 292(1) of the 1999 Constitution as amended who is vested with power to remove a judicial officer from office and not the 1st respondent (NJC).
“The applicant’s right to fair hearing in the determination of his civil rights and obligations is guaranteed by section 36 of the 1999 Constitution as amended and also under the rules of natural justice, but the 1st respondent (NJC) acted in breach of this fundamental right of the applicant when it suspended the applicant from office as a judicial officer without any hearing at all.”
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