Abia State has been thrown into an unnecessary constitutional debacle because of the purported suspension of the Chief Judge, Mrs T.U Uzokwe and the purported appointment and swearing-in of Obisike Orji as the acting Chief Judge, who less than 3 days into his acting office, has also been suspended by the National Judicial Council (NJC). In his place, the NJC has recommended that O.A.K Ogwe should be sworn in as the acting Chief Judge pending when they reach a final decision on the matter.
In one week, Abia State has had a Chief Judge and 2 acting Chief Judges. Realizing that this could have been averted, it is really shameful that it wasn’t averted and this questions the competence of the various stakeholders in this process.
While lawyers and stakeholders are discussing the rationale and the legality or otherwise of these actions, Mr. Nwachukwu, throws a new light into this discourse, by questioning what role the Attorney General of the State, Umeh Kalu SAN who is meant to be the Chief Law Officer of the state, played or ought to have played.
Appointment and Discipline of Judges: A Sui Generis Process
It is common knowledge, which every 1st or 2nd year undergraduate law student is privy to, that the appointment and removal of Judges is ALWAYS subject to the recommendation of the National Judicial Council (NJC). The NJC is empowered to do so by virtue of the combined reading of Section 292 and paragraph 21 of the 3rd Schedule, Part 1 of the 1999 Constitution (as amended). These sections are not novel as they have been tested in the Nigerian Courts and the Courts have affirmed the intention of the lawmakers. In Hon Justice Raliat Elelu-Habeeb v. AG of the Federation, the Supreme Court in 2012, held infallibly and finally, that
“ although the Governor of a State has been vested with the power to appoint the Chief Judge of his own State, that power is not absolute as the Governor has to share the power with the National Judicial Council NJC) in recommending suitable persons and the State House of Assembly in confirming the appointment. It is in the spirit of the Constitution in ensuring checks and balances…. In addition to its role in the appointment of Chief Judges of the States and other Judicial Officers, the same National Judicial Council is also empowered under Sub-paragraph (d) of paragraph 21 to recommend to the Governors of the States the removal from office of the Chief Judges of the States and other Judicial Officers of the States and also to exercise disciplinary control over such Chief Judges of the States and other Judicial Officers of the States.”
Intelligibly (having the likes of Onyebuchi Ememanka Esq in mind), the Learned Justices of the Supreme Court held that, even if effect was to be given to Section 292 alone, the Governor and the House of Assembly do not still have the power to remove a Chief Judge arbitrary, such removal must be subject to either of the following:
- Inability to discharge the functions of office or appointment, whether arising from infirmity of mind or body
- Misconduct or contravention of the Code of Conduct
The wordings of these sub-sections, do not envisage mere allegations which are yet to be investigated and substantiated (as is the case in Abia State), the words “inability” “misconduct” and contravention” are all used in the positive, which means that before any action can be taken by either the House of Assembly or the Governor, the allegations must be investigated and proven to be true. How can this be done, if the NJC is not involved and if the Chief Judge in question is not given the right of fair hearing? This line of thought reaches a logical end, when we appreciate that Section 292 of the Constitution does not provide for “suspension” but “removal”. The intent of the framers of the constitution is that when S.292 is invoked legally, it is permanent.
Unfortunately, the Abia State House of Assembly did a constitutional summersault, by suspending the Chief Judge based on a petition yet to be investigated.
The Learned Justices held
“It is not difficult to see that for the effective exercise of the powers of removal of a Chief Judge of a State by the Governor and the House of Assembly, the first port of call by the Governor on his journey shall be the National Judicial Council (NJC) which is equipped with the personnel and resources to investigate the inability of the Chief Judge to discharge the functions of his office(emphasis mine)……and where the infirmity of the mind or body is involved, the services of a medical board to examine and submit appropriate report on the Chief Judge to be effected could also avail the Council in the process of investigation”
The Response by Onyebuchi Ememanka Esq
While I am yet to see any official statement by the AG of the State, the Special Adviser to the Governor on Public Communication, Onyebuchi Ememanka ESq, has taken the bull by the horn and he has declared constitutional the unconstitutional act of his employer. According to him, what the House of Assembly and the Governor did was valid under section 292. For reasons best known to him, he avoided citing paragraph 21 of the 3rd Schedule, Part 1 of the 1999 Constitution (as amended) and the Supreme Court Judgment in Hon Justice Raliat Elelu-Habeeb v. AG of the Federation. Maybe he is not aware of these recent authorities, and if he isn’t, we have every reason to question his legal scholarship. Even the Section 292, he runs to for protection, does not avail him much protection, as the House of Assembly did not fulfill those conditions as explained above.
Unfortunately, probably because he does not appreciate the sui generis nature of the appointment and removal of Judges, he argues that “since the House of Assembly can lawfully impeach a Governor, why should anyone be surprised that they could activate the removal of the State Chief Judge?” He further tries to buttress this by relying on irrelevant comparisons which are extraneous to the matter in issue. His argument reached its climax when he argues that the notification by the House of Assembly suspending the Chief Judge “placed on the Governor, a serious constitutional burden which he is under a duty to discharge pursuant to his oath of office to defend and protect the Constitution”. If the Governor knew the Constitution, he would have known that this very act infringes on it.
The Attorney General of a State: Powers and Duties
The Attorney General either of the Federation or the State is the only Minister or Commissioner, whose position and requirement is provided for by the Constitution. This shows the importance the law ascribes to the office of the Attorney General. Section 195(1) which provides for the Attorney General state, describes the AG as the Chief Law Officer of the State.
Basically, the Attorney General;
- Is the Law Officer of the Executive Council;
- shall see that the administration of public affairs is in accordance with the law;
- shall superintend all matters connected with the administration of justice;
- shall advise the Government upon all matters of law connected with legislative enactments or upon all matters of a legislative nature;
- shall advise the heads of ministries and agencies of Government upon all matters of law connected with such ministries and agencies;
- shall conduct and regulate all litigation for and against the Government or any ministry or agency of government;
Paragraph 4 can be further broken into two;
- To oversee that all legislative enactments are in accordance with principles of natural justice and civil rights
- To advise on the constitutionality and legality of legislation.
The Judicial crisis in Abia State raises the following questions:
- Is there an Attorney General in Abia State?
- If yes, where was he when the House of Assembly embarked on this unconstitutional Journey?
- What was his advice to the Governor?
The time has come for the Attorney General’s in Nigeria to realize the importance of the Office they occupy; primacy should be given to the rule of law than to President and the Governor.
Conclusion and Recommendations
It is trite law as stated by Abbott C.J in Montriou v. Jefferys that “no attorney is bound to know all the law” but at least, an attorney should know where to find the law. The Constitutional crisis in Abia State could have been averted if the Attorney General had acted diligently. As a head of a Ministry which has a variety of lawyers, it is impossible that no lawyer would have known that the House of Assembly acted illegally. This is indeed a costly mistake, making mistakes are only forgivable when they are new mistakes, but making old mistakes are unjustifiable.
- If the AG failed to have provided sound legal opinion to the Governor, I recommend his immediate sack and that of Onyebuchi Ememanka Esq for gross ignorance and negligence, for both have brought great shame to the Governor.
- If the Governor was advised as to the illegality of his action, and he still went ahead to effect such illegality, I recommend that he be impeached for being malicious and for disrespecting the Constitution.
- I recommend that the NBA should sanction its members, who when in Public offices fail to uphold the Constitution and the principle of Stare Decisis.
- I support the NJC position to sanction Mr. Obisike Orji for his undignified conduct in presenting himself to be sworn in.
- To avert such unnecessary constitutional crisis in future, I recommend a constitutional amendment which would require that, before the Legislature acts, they must seek and get clearance from their legal adviser.
In “On a platter of gold; how Jonathan won and lost Nigeria”, Mallam Bolaji Abdullahi, detailed several instances where President Jonathan sought the Legal advice of the then Attorney General of the Federation, Mohammed Adoke, on several constitutional issues. Despite being pressurized from several interests groups, Adoke gave sound legal advice not minding how unpopular they were and the President mostly obeyed. That is how a responsible Attorney General should act.
Nwachukwu is a Lagos Based legal Practitioner, email@example.com