The recent removal of the Chief Judge of Abia State, Justice Theresa Uzokwe by Governor Okezie Ikpeazu has again highlighted the challenges facing the principle of separation of powers in Nigeria’s democracy.
Justice Uzokwe was removed on January 26 based on several petitions alleging high-handedness and embezzlement of funds against her. In removing her, the governor swore in Justice Obisike Orji in her place as Acting Chief Judge.
However, the National Judicial Council (NJC) did not take kindly with the development. At the end of its Emergency Meeting presided by the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen on January 31, the NJC said the swearing in of Justice Orji as the Acting Chief of the state by Governor Ikpeazu, without the input of the NJC is “unconstitutional, null and void.”
The NJC also resolved to query Justice Orji for misconduct for presenting himself to be sworn-in.
However, the NJC recommendation that the next most senior judge in the state judiciary, Justice Onuoha Arisa Kalu Ogwe, be sworn-in in acting capacity pending Council’s final resolution of the matter.
The drama is a replay of previous episodes where the chief judge of a state was removed without recourse to the NJC as provided in Section 3 of Paragraph 21 of Part One of the Third Schedule to the 1999 Constitution.
In August, 2013, following the retirement of Justice Iche Ndu as the Chief Judge of Rivers State, then governor Rotimi Amaechi forwarded the name of Justice Peter Agumagu to the State House of Assembly for confirmation as Chief Justice, against the recommendation of the NJC nominating Justice Daisy Okocha being the next most senior judge in the state judiciary.
In reaction, the NJC presided by Justice Mariam Aloma Mukhtar queried Justice Agumagu for violating Section 271 (1) of the Constitution by submitting himself for confirmation and swearing-in as substantive Chief Judge.
The executive-judiciary stand-off led to the freezing of judicial activities in Rivers State until January, 2016 when a new administration of Nyesom Wike swore in Justice Okocha as directed by the NJC.
More of such drama of imposition of judges was witnessed in Abia earlier under Governor Theodore Orji, Adamawa State under Governor Murtala Nyako and Osun State when Governor Rauf Aregbesola sought to impose Justice Joseph Oyewole of the Lagos State High Court as the chief judge.
Some lawyers have argued that this conflict have continued because the NJC, as always in much of its recommendations after meetings, is merely advisory, adding that the council does not have the authority to appoint or suspend as provided in Section 11 (1) of the Interpretation Act of the Constitution.
The coordinator of Proactive Gender Initiative, Barrister Esther Uzoma said interference by the executive make a mockery of the concept of separation of powers and democracy.
A former President of the Business Recovery & Insolvency Practitioners Association of Nigeria (BRIPAN), Dr. Biodun Layonu (SAN) said “constitutionally when it comes to appointments, dismissals and the likes of judicial officers, NJC is the body saddled with the primary job, but it also involves the executives and the legislatures.
“It is deliberately designed like that for NJC to be in the driving seat; but for a removal, you need the state house assembly to ratify the decision of the NJC for state high court judges and national assembly for federal high court judges.
“Where we have one of the arms of government wanting to go an
other way as against what the NJC decided, ultimately NJC will win; because ultimately the matter will get to court and there, the constitutional power of the NJC will be affirm.”
“Any wise judge should know that you shouldn’t go against the decision of the NJC. In the particular case of Abia state, NJC has made a statement and I believe that is the correct position,” he added.
In situation where NJC recommended dismissal of a judge and the state executive failed to act on the recommendation, Layonu said what will invariably happen is that the affected judge will not continue to sit.
“It is a no-win situation for the affected judge, because even when the governor says ‘I am not going to announce the dismissal’, that judge will still not be effective, so what is the point? Unless the NJC reverses its position, that judge will not be effective.
“This is a kind of fiasco that should be avoided. But where the NJC is doing its job, the executive and the legislature should cooperate because NJC is within its constitutional powers when it comes to appointment and discipline of judges.”
Abuja-based lawyer, Nureyni Sulyman said the judiciary is relatively independent, adding that there is mostly clash of interests between the executive and the judiciary, and that most of these clashes have political undertone.
He said the NJC should however be doing more, adding that “the NJC is part of the society which is generally not doing well at this moment and they should be up to the task in asserting themselves and most especially in avoiding hiccups that give rooms for criticism. Now that we have even entered an election season, partisanships can’t be rule out.”