The Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN
The Honourable Attorney-General of
The Federation and Minister of Justice
Federal Ministry of Justice
Shehu Shagari Way
Central Business District
APPOINTMENT OF THE HEAD OF THE JUDICIARY UNDER THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)
I write to share with you my thoughts and experience on the above matter. What has encouraged me to share the thought and experience was the case of Hon. Justice Raliat Elelu Habeeb, Chief Judge of Kwara State & Anor. Vs. The Hon. Attorney-General of the Federation, The Hon. Attorney-General of Kwara State & Anor, reported in (2012) 13 NWLR (Pt. 1318) 423 (SC).
Hon. Justice Mahmoud Mohammed, the Chief Justice of the Federal Republic of Nigeria retired on 10th November, 2016. Before his retirement, the National Judicial Council recommended the most senior Justice of the Supreme Court, Hon. Justice Walter Samuel Nkanu Onnoghen, JSC to the President for appointment as the Chief Justice of the Federation.
The President, on your advice, instead of forwarding his name to the Senate for confirmation appointed Hon. Justice Nkanu Onnogben, JSC as acting Chief Justice of Nigeria, reportedly in pursuance of Section 231 Subsection (4) & (5) of the Constitution of Federal Republic of Nigeria 1999, contrary to the recommendation of the National Judicial Council.
Hon. Justice WSN Onnoghen was sworn in as the acting Chief Justice of Nigeria, and according to Section 231 (5) for a period of 3 months from the date of such appointment.
The spokesperson of the President was quoted at a press interview to say that the Acting Chief Justice of Nigeria, just sworn in, was on probation and if he did well, the President will act appropriately.
This statement in my respectful view, was not the best in accordance with the Constitution of the Federal Republic of Nigeria and the integrity of the Institution, the Judiciary. It diminished the honour, integrity and status of the high office of the head of Judiciary in Nigeria, unfortunately.
Indeed, since 1999, there have been appointed Chief Justices of Nigeria, at least six of them, in seamless succession. Hon. Justices Belgore, Kutigi, Katsina-Alu, Musdapher, Aloma Muktar and Mahmoud Muhammed.
I wish to invite your attention to the above named case which I prosecuted from the High court to the Supreme Court. Happily your office was a party to the decision. It has till date, remained the only decision, authoritative full decision of the Supreme Court on the power of the Chief Executive Officer in the States in the appointment of the Head of the Judiciary and limitations thereof.
The relevant provisions, in respect of the office of the Chief Justice of the Federation is Section 231 (1) – (5), read together with paragraph 21 (1) of the 1st Schedule to the Constitution of the Federal Republic of Nigeria 1999.
Historically, the appointment of Chief Justice of Nigeria in all the Constitutions of the Federal Republic of Nigeria, followed the same pattern from inception of the office of the Chief Justice of Nigeria.
On 1st January 1914, the Governor-General (Sir F. Luggard) on the occasion of the declaration of the Constitution of Colony and Protectorate of Nigeria spoke concerning the appointment of the occupier of the office of the Chief Justice of Nigeria in these Words:
“It is obvious that there can only be one Chief Justice of the Supreme Court of Nigeria, and for this high office, the Secretary of State has selected Sir Edwin Speed, who has experience in both Northern and Southern Nigeria and has been much longer in Nigeria than his colleague Mr. Willoughby Osborne. It gives me great regret that, by force of circumstances, the country will lose the valuable services and ripe experience of Mr. Willoughby Orborne, and I am aware of the high estimation in which his services are held both here and at home. in saying good-bye to Nigeria he will have the satisfaction of feeling that he has discharged the functions of his high office with distinguished success. To His Honour Chief Justice Sir Edwin Speed I tender my congratulations on his appointment and I am confident that, while he holds his high office, the proud traditions of British, Justice will ever be worthily maintained.”
The Richards Constitution i.e. the Nigerian Legislative Council order in Council 1946, and its predecessor of 1921, have no specific provisions on the occupier of the office of the Chief Justice. The Nigerian Constitution Order in Council 1960, (The Independence Constitution), Section 105 (1) – (5) makes provision for the appointment of the Chief Justice by the Governor-General, acting in accordance with the advice of the Prime Minister.
In the Constitution of the Federation 1963, Section 112 (1) – (5) provides for the appointment of the Chief Justice of Nigeria.
The Constitution provides that the Chief Justice of Nigeria shall be appointed by the President acting in accordance with the advice of the Prime Minister.
In the Constitution of the Federal Republic of Nigeria, 1979, Section 211 makes provision that the person to be appointed as the Chief Justice of Nigeria shall be “in the discretion of the President” subject to confirmation of a simple majority of the Senate.
The makers of the Constitution were not comfortable with power and discretion conferred on the President, suspecting possibility of abuse and political consideration hence the provision of the 1999 Constitution created NJC as the technical institution responsible for appointment and discipline of Judicial officers. It provides thus:
“The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate”
The Supreme Court in the case of Elelu Habeeb vs A. G. Federation and others held that the Chief Executive Officer of the State or the Federation have no absolute powers in the appointment of a Judicial officer. The decision emphasized the word “recommendation” as opposed to “discretion and advice”
The Supreme Court removed doubts as to non existence of executive function in the determination of the eligibility for appointment of the Chief Justice of Nigeria.
The President, with respect, after recommendation of the NJC, has no executive function in the determination of who to appoint as the Chief Justice outside the recommendation of the National Judicial Council. He is not to screen, interview, subject to administrative or executive scrutiny. The President is ceremonially required to pass the recommendation of the National Judicial Council for confirmation by the Senate of the Federal Republic of Nigeria any person recommended to him.
Hon. Justice Adekeye JSC at page 521 EG stated the law as follows:
“Thus, the entire provisions of the 1999 Constitution in Sections 153(i), (ii), 271(1), 292(1)(a)(ii) and paragraph 21 of part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 dealing with the appointment, removal and exercise of disciplinary control over judicial officers must be read, interpreted and applied together in solving the issue of whether or not the Governor of a State and the House of Assembly of a State can remove a Chief Judge of a State in Nigeria without any impute of the National Judicial Council. This is because the combined effect of these provisions of the Constitution has revealed very clear intention of the framers of the Constitution to give the National Judicial Council a vital role to play in the appointment and removal of the judicial officers by the Governors and Houses of Assembly of the State.” Underline mine.
Hon. Justice Mahmud Mohammed, JSC who presided and read the leading Judgment of the court succinctly puts the interpretation of the Constitution thus:
“It is quite plain from the provisions of paragraph 21, sub paragrapgs (c) and (d) of part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999, that the National Judicial Council is the body that has been assigned the duty and responsibility of recommending to the Governors of the States of the Federation suitable persons for the appointment to the offices of Chief Judges of the States and other Judicial officers in the States. In addition to its role in the appointment of Chief Judges in the States and other judicial officers, the same National Judicial Council is also empowered under sub-paragraph (d) of the 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. Therefore, from these very clear provisions of the Constitution which are very far from being ambiguous, the Governors of the States and the Houses of Assembly of the States cannot exercise disciplinary control touching the removal of Chief Judges of States or other officers in the States.
Going back to Section 271 (1) of the 1999 Constitution, it is also glaringly clear that the National Judicial Council has been given a role to play in the appointment of the Chief Judges of the States where the section states:
It can be seen here again, 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 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 & balances between the three arms of Government that the role of the Governor in appointing and exercising disciplinary control over a Chief Judge of his State is subjected to the participation of the National Judicial Council and the House of Assembly of the State in the exercise to ensure transparency and observance of the rule of law.”
The Hon. Justice Mohammed, indeed specifically outlined the basic function of the NJC, he said:
“The first port of call by the Governor on his journey to remove a Chief Judge of the State shall be the National Judicial Council which is equipped with the personnel and resources to investigate the inability of the Chief Judge to discharge the functions of His office, the subject of disciplinary action of removal through the Committees of the Council and where the infirmity the mind or body of body is involves the services of a medical board to examine and submit appropriate report on the Chief Justice to be affected, could also avail the Council in the process of investigation…………” see page 495
The combined effect of these provisions has revealed very clearly the intention of the framers of the Constitution to give the National Judicial Council the most vital role in the appointment of Judicial officers.
Now coming to the appointment of the Chief Justice of Nigeria, the President as the Chief Executive officer of Nigeria is not the head of the National Judicial Council. He cannot perform the executive functions of the NJC which is equipped with personnel, resources and power to assess the health, qualification and suitability of candidate to be recommended to occupy the office. The President has no ability or executive powers to assess a candidate on the basis of Constitutional requirement of a person recommended. It is the prerogative of the National Judicial Council. The Constitution does not allocate any executive functions to the President and the President cannot appropriate or share the Constitutional function of the NJC.
The President has no power, with respect, to subject the recommendation to his test of ability, suitability and competence. Indeed, the Senate which has the power to confirm the suitability of candidates recommended may examine with the NJC the check list employed by the Council. The Senate can neither subtract nor add to the requirements of the recommended Justice.
With respect, the President cannot substitute his opinion for the Council or the Senate. He performs, from the history of Judiciary, ceremonial role of appointing authority subject to the confirmation of the Senate.
You may wish to see that in 1979 Constitution, the President exercised discretion in the appointment of the Chief Justice of Nigeria.
Besides the 1979 Constitution gives the Federal Judicial Service Commission only power to only advice the President on the Candidate.
Then there is in the amended 1999 Constitution the creation of the National Judicial Council. The establishment of the NJC is to remove the discretion of the President in the appointment of the Chief Justice. Besides, the NJC under the Constitution shall not be subject to the direction or control of any other authority or person.
I urge that you consider my experience and thoughts in the determination of the appointment of the Hon. Chief Justice of Nigeria without further delay.
There is around the corner another danger and that is whether from 10th February 2017 the Acting Chief Justice must cease to be in the office of the CJN. Whether the President can, without recommendation of the National Judicial Council appoint another Acting Chief Justice of Nigeria? Whether the Acting Chief Justice or the next most senior Justice of the Supreme Court can presides over the meeting of the Council to determine and recommend another Acting Chief Justice of Nigeria?
Legal practitioners are very concerned because what paralyzed the Rivers State Judiciary is likely to repeat itself at the Federal level, if you fail to properly guide the President.
I urge you to use position as the Chief Law officer of the Federation to secure the future and independence of the Judiciary.
The collapse of the Judiciary is fatal to our nascent democracy and I pray it never fails.
Asiwaju Adegboyega Awomolo, SAN
24th January, 2017
CC: The President
Nigerian Bar Association
Muhammadu Buhari Way
Central Business Distress