NJC/Rivers Government Standoff over Appointment of Chief Judge (FAIR AND BALANCED WRITE UP) THISDAY OPINION PAGE Nothing is wrong with the constitutional provisions for the appointment of a chief judge for a state. The operators of the constitution only need to abide by the letter and spirit of the law, writes Tobi Soniyi The face-off between the Rivers State Government and the National Judicial Council over the appointment of a chief judge for the state should not have degenerated into such a crisis if the parties had followed the clear provisions of the constitution. The constitutional provisions governing such appointment are so straightforward that you don’t have to be a lawyer to interpret them correctly. They are to be found in section 271 (1), (2),’(3), (4) and (5) of the 1999 Constitution. Constitutional Provision The section provides thus: “271. (1) 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. “(2) The appointment of a person to the office of a Judge of a High Court of a State shall be made by the Governor of the State acting on the recommendation of the National Judicial Council. “(3) A person shall not be qualified to hold office of a Judge of a High Court of a State unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years. “(4) If the office of Chief Judge of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the Governor of the State shall appoint the most senior Judge of the High Court to perform those functions. “(5) Except on the recommendation of the National Judicial Council an appointment pursuant to subsection (4) of this section shall cease to have effect after expiration of three months from the date of such appointment and the Governor shall not re-appoint a person whose appointment has lapsed.” The governor is certainly the person conferred with the power to appoint a chief judge for the state. However, his power is not absolute. He must do so on the recommendation of the NJC. But Rivers State Governor Rotimi Amaechi was said to have appointed Justice Peter Agumagu as chief judge in the absence of a recommendation from the NJC. This led to Agumagu’s suspension by the NJC. Two Wrongs But NJC also seemed to be extremely cruel and severe for suspending Agumagu in violation of his right to a fair hearing. Agumagu should have known better. He should have learnt from Justice Olubunmi Oyewole. When the Osun State governor, Raufu Aregbesola, chose him to become the Chief Judge of Osun on a transfer from Lagos State, the NJC rejected him and refused to recommend him for the job. When the governor insisted on inaugurating him at all cost, he declined. He avoided confrontation with the council. Today, he is a justice of the Court of Appeal. Aregbesola avoided the war path and Justice Bola Ojo was sworn in on June 17, 2013. Going by the strict provisions of the law, Agumagu is qualified to be appointed the chief judge of the state. He has more than 12 years post call experience. The fact that he is the President of the Rivers State Customary Court of Appeal does not make him inelligible. This is the truism the NJC did not seem to fancy. Although, the council is deemed to be in a better position to know which judge is qualified or not, the constitution is supreme. Section 271 (3) is straightforward. It says: “A person shall not be qualified to hold office of a Judge of a High Court of a State unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years.” The law does not allow someone who had never been a judge, for example, somebody who is working in a legal department of a bank to be so appointed. The only hurdle is that the NJC must recommend. And if NJC refuses to recommend someone that is qualified for appointment and the refusal is based on some extraneous factors, the council would be abdicating its constitutional responsibility. Secondly, the NJC’s constitutional duty is to recommend to the governor. It follows, therefore, that the governor may reject such recommendation. The state House of Assembly may also refuse to confirm the person recommended by the council. In either case, the council will have to make fresh recommendation. It cannot insist that the person it had earlier recommended must be appointed. The council cannot insist that Justice Diasy W. Okocha, though the most senior high court judge, be appointed as the substantive Chief Judge. It simply does not have such powers. Rot Many, however, believe some of the rot in the judiciary are caused by strict adherence to the interpretation given above. This is what is said to be guiding the NJC in trying to make sure that only the best are appointed to the bench in order to enrich the bench and ensure a better administration of justice. Some governors, obviously, do not like this. They simply want their own choice, notwithstanding the fact that their choice may not be well suited for the job. Suffice it to point out that the current disagreement between the Rivers State government and NJC is not peculiar to the state. Abia, Adamawa, Kwara and Osun had had to grapple with clashes with NJC over appointment of a chief judge. Some, like Osun, had been resolved. The governor of Adamawa State, Murtala Nyako, even preferred to appoint his wife, Justice Binta Nyako, a judge of the Federal High Court, as the chief judge of the state. The NJC said no. There is also a difference between substantive appointment and appointment in acting capacity. The law is also very clear, it is only the most senior high judge that should be appointed to act. Section 271 (4) is also very clear. It says: “If the office of Chief Judge of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the Governor of the State shall appoint the most senior Judge of the High Court to perform those functions.” Some have argued that Agumagu is not a judge of the high court and, therefore, is inelligible for appointment as acting chief judge. But the Rivers State government has explained that Agumagu was only seconded from the high court to head the customary court. In all the state’s reaction, no reason was given for the rejection of Okocha’s nomination by the state government. The fact that she is the sister of Chief O.C.J. Okocha, who happens not to be in the same political camp with the governor, does not make her inelligible for appointment as the chief judge.
Posted on: Sun, 06 Apr 2014 06:32:40 +0000
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