•15 years’ experience now require to lead Council •Kanu’s lawyer, ex-Bar leader speak on free Bench
LANRE ADEWOLE, YEJIDE GBENGA-OGUNDARE and SUNDAY EJIKE dissect the recent reform efforts, to reposition the Judiciary.
The recent amendment to the 1999 Constitution has seen the Federal Judicial Service Commission retain its power to participate in the appointment of the Secretary of the National Judicial Council (NJC), despite the efforts to free the process from current encumbrances,The Jury has learnt.
The assent of President Muhammadu Buhari to the proposal by the National Assembly as part of the legislative efforts to reposition the Judiciary, has reinforced the recommendatory power of the FJSC, though considered intrusive by many stakeholders, in the appointment of future CEOs of the Council.
The FJSC recommends, while the Council appoints.
The proposal to divorce the process from the Commission was one of the ideas considered during the constitution review exercise, and many stakeholders had put their weight behind the move, to ensure further independence of the Council, since the Constitution says it should regulate its activities, and the entire Judiciary.
The sustained participation of the Commission in the top-job of the Council, is mostly viewed as subordinating the symbol of the Judiciary, to one of its entities.
Apart from the appointment of the Secretary of the Council, the Commission currently participates in the appointment of the Chief Justice of Nigeria and other justices of the court, President of the Court of Appeal and other justices of the court, as well as the Chief Judge of the Federal High Court and judges of the court, by way of nomination.
President Buhari affirmed the involvement of the Commission in the appointment of the Council’s CEO, by endorsing the alteration to Clause 2 of the Third Schedule of the Constitution.
The slight amendment to the provision, is the extension of the post call experience of future Council Secretary.
While it used to be 10 years, the amendment signed by the President has now upped it to 15 years.
Clause 2 of the Alteration of the Third Schedule, now reads, “The Secretary of the Council shall be appointed by the National Judicial Council on the recommendation of the Federal Judicial Service Commission and shall be a legal practitioner of at least fifteen years post call experience.”
The power of recommendation vested in the FJSC, is being argued as an opportunity to leverage a fait accompli on the Council, since the latter, rarely goes outside of the recommendation.
The flip side, for stakeholders who aren’t too bothered, is the fact that the Chief Justice of Nigeria, is the chairman of both the Commission and the Council and believed to wield a lot of influence on the decisions of both entities.
The case against FJSC.
Many judiciary stakeholders aren’t happy the provision affirming FJSC’s participation in the appointment of NJC’s Secretary, stayed. Its survival of the constitutional amendment exercise, despite all odds, is being connected to likely powerful lobbying by some elements within the system. Until the President signed the two judicial items that survived the politics of the constitution amendment exercise, and the discovery that the provision was retained by the lawmakers, most system operators were certain the “association” between the Council and the Commission on the appointment of the Council Secretary, was history.
The eagerness to exempt FJSC from major appointments in the Judiciary, is anchored on an appeal before the Supreme Court, touching on the appointment and disciplinary powers of the Council and the Commission.
In February 2022, the entire Judiciary was thrown into a tailspin when the Court of Appeal in Abuja practically invalidated all the Council’s disciplinary decisions, since creation, setting the stage for an embarrassing wave of reversal of all disciplinary decisions against judicial officers in the last 22 years.
The intermediate court unanimously held that NJC cannot recommend errant judicial officers for punishment, without the Federal Judicial Service Commission (FJSC).
It went ahead to void the sacking of a judge of the Federal High Court, Justice Gladys Olotu, based on the February 27, 2014 recommendation of the Council.
Since NJC came into existence by the virtue of the 1999 Constitution and began operations in 2000, it has maintained sole power over judges’ discipline, based on the interpretations of its powers as captured in Part 1 of the Third Schedule of the Constitution.
In its more than 22 years of operation, it has recommended over a thousand judges for various disciplinary measures, ranging from suspension, to compulsory retirement and dismissal and in all of these, FJSC never played any parts.
Apart from justices of the Supreme Court, Court of Appeal, Federal High Court and Chief Judges of states, NJC had also recommended a sitting Chief Justice of Nigeria (CJN), Justice Walter Onnoghen for compulsory retirement, without the input of the FJSC as demanded by the ruling of the Court of Appeal.
By the ruling of the Court, the recommendation ending Onnoghen’s career prematurely as well as all others, in the last 22 years, would be deemed null and void and the confusion it could cause for the system, sent the senior members of the Judiciary into a panic mood, with the Council eventually deciding to appeal the judgement. To show the seriousness attached to upturning the controversial judgement, a Senior Advocate was hired by the Council, to prosecute the appeal.
The Council had recommended Onnoghen, then its statutory chairman, for compulsory retirement for alleged failure to fully declare his asset as required by the law, following his suspension by President Muhammadu Buhari. The President, eventually accepted his decision to retire, after NJC’s panel recommended his exit.
Commenting on the judgement now on appeal, a top NJC source lamented that unless a remedy is sought for the controversial ruling, Nigerians should expect a rash of court filings that could easily reverse all the gains of the past years.
“It is clear in the Constitution that NJC has the authority, to recommend punishment to the President and Governors. FJSC doesn’t have that power. Can two institutions have the same power? Let us even assume that both NJC and FJSC have powers to recommend judges for sanctions, are you saying resources should be spent in the two places, doing the same thing? Is there no reason why the Constitution says FJSC and SJC must recommend to NJC in the course of appointing judges?” the agitated source asked rhetorically.
The Council, had, on February 27, 2014, recommended Ms. Olotu’s compulsory retirement to former President Goodluck Jonathan, over alleged gross misconduct, as claimed in petitions against her, but she launched a judicial action against the Council’s decision, which was ultimately carried by the Jonathan administration, leading to her early exit from service.
The Industrial Court of Nigeria (NIC) where she sought refuge also upheld the decision of the Council, in a judgement on September, 20, 2017, with her going on appeal. And almost five years after, reprieve came her way when the Court of Appeal voided the decision cutting short her career, but silent on reinstatement.
Though it wasn’t the first time NJC would suffer a reversal of its decision, the reason given in her case, was the trigger for the top operators, considering that the three-member panel, led by Justice Peter Ige, unanimously held that the process leading to Ms. Olotu’s removal was flawed.
Justice Danlami Senchi, incidentally, the Chief Registrar of the Supreme Court between 2003 and 2007, who read the lead judgment, held that the recommendation of the Federal Judicial Service Commission (FJSC) is compulsory and since same was not present in the process leading to Olotu’s exit, the entire exercise was of no legal and constitutional effect.
He further held that the recommendation made by NJC to then President Jonathan on the matter, was unlawful, null and void, because FJSC didn’t participate.
While a couple of Council’s disciplinary decisions had been overturned by courts in the past, it had been strictly about not following its own rules, in punishing misconduct in the system, but the Court of Appeal’s decision was the first time FJSC’s non-participation in judicial discipline would become a reason for voiding NJC’s decision on any judge.
Top operators of the system moved to cut FJSC off judicial appointments, to end the confusion which the controversial judgement of the Court of Appeal played up, but the retention of the clause, reaffirming the Commission’s involvement, has deepened the crisis facing the Council and its chairman, the CJN. The appeal before the apex court, now looks like the only saving grace for the system.
There is also the suspicion that alleged corrupt judges, sacked and still under probe, must have lobbied to have the federal lawmakers retain FJSC’s hold on appointments, to strengthen the judgement of the Court of Appeal, that whoever can hire, must be part of the firing.
Praise from lawyers.
The second alteration made by the federal lawmakers which reaffirmed financial autonomy for judiciary at the state level, has however drawn praise from lawyers.
Senior Advocate of Nigeria, Chief Yomi Alliyu said “No doubt the Judiciary is free, but there are so many rules in our laws gathering dust! The practical use of the provision is what matters not the enactment itself!”
Abuja-based rights lawyer, Maxwell Opara, said, the new law granting the judiciary at the state level, financial autonomy and independence, is a welcome development, which would make the judiciary very free and independent of other arms of government.
Another lawyer, Mr. Aloy Ejimakor told The Jury that, “The constitutional amendment giving financial autonomy to the judiciary is the best constitutional step towards achieving true independence of the judiciary”.
Ejimakor, who is the special counsel to the leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu said, the law should have been, long ago.
Former Bar leader, Ikeja branch, Dave Ajetomobi worried that political actors could upset the commendable move.
“I want to believe so, but politicians may put roadblocks on the path of judicial independence. This is because, the way and manner judicial officers are appointed, makes it difficult to maintain independence of the judiciary. And because appointment of Chief Judge rests squarely on the shoulder of the governor, he may not appoint anyone that will insist on independence of the judiciary, notwithstanding the provisions of the constitution.
“I know in Lagos State that there is a law that made provisions for judiciary independence and justice Akande made use of it fully. That was why she was given the name Madam Separation of Powers. After her I don’t think any other Chief Judge, has utilized the law. It is not therefore sufficient in Nigeria to have a law in the books, the persons involved should be ready and willing to insist on implement the law” he explained.
Legal battle.
Checks revealed that, in 2013, the Judiciary Staff Union of Nigeria (JUSUN) filed a suit marked: FHC/ABJ/CS/667/13 against the National Judicial Council (NJC), the Attorney-General of the Federation (AGF) and the Attorneys-General of the states, demanding judicial autonomy.
On January 14, 2014, Justice Adeniyi Ademola of a Federal High Court sitting in Abuja (now retired), who adjudicated the matter, favoured the union.
Among the reliefs granted by the trial Judge are, “A declaration that the 2nd-74th defendants’ failure, neglect and/or refusal to pay the Funds/Amount standing to the credit of the States’ Judiciary is a constitutional breach which has to be abated forthwith.
“That an order is hereby made that the piece-meal payments/allocation of funds through the states’ ministry of finance to the state’s judiciary at the 2nd-74th defendants pleasure is unconstitutional, unprocedural cumbersome, null, void and be abated forthwith.”
The judge also made an order mandating the 2nd-74th defendants to comply with the provision of Section 162(9) of the 1999 constitution in the disbursement of funds to the head of courts forthwith.
