The Hypocrisy of Justice Mohammed

Can the Acting Chief Justice of Nigeria, Justice Tanko Mohammed, who was a critical member of the National Judicial Council, which sanctioned Justice Obisike Orji by forcing him to go on a compulsory retirement for allowing himself to be sworn in as the Acting Chief Judge of Abia State without being recommended by the council, head the judiciary? Davidson Iriekpen asks

A story was once told that when Governor Rauf Aregbesola of Osun State in 2012 failed in his bid to foist Justice Joseph Oyewole on the judiciary as Chief Judge, he settled for Justice Gloria Oladoke instead of Justice Oyebola Ojo.

Investigation revealed that at the meeting of the National Judicial Council (NJC) as Justice Oladoke introduced herself as the acting Chief Judge of Osun State, below was the response she got from the then Chief Justice of Nigeria (CJN) and Chairman of the NJC, Justice Mariam Aloma Mukhtar: “Who invited you here? You don’t belong here. Please excuse us. Get out!”

THISDAY gathered that it took this decision by the NJC for Governor Aregbesola to know that he should follow the rule by appointing the most senior judge of the state.

In Rivers State, a few years after, Justice Peter Agumagu, who was appointed Chief Judge by Governor Chibuike Amaechi was rejected by the NJC equally headed by Justice Mukhtar. The NJC had directed that Justice Daisy Okocha be sworn in as Chief Judge of the state, a decision Amaechi refused to comply with.

The NJC consequently queried and suspended Justice Agumagu as a judicial officer by the NJC for allegedly violating Section 271(1) of the constitution by submitting himself for confirmation by the state House of Assembly and swearing-in by the governor as the state’s substantive Chief Judge without being recommended by the council.
The body claimed it acted pursuant to paragraph 21(d) of Part 1 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended.

The most recent was on March 14, 2018, when the council at its 85th meeting under the chairmanship of Justice Walter Onnoghen, declared the suspension of the Chief Judge of Abia State Justice T. U. Uzokwe, by Governor Okezie Ikpeazu as unconstitutional.

It also sanctioned Justice Obisike Orji, by forcing him to go on a compulsory retirement for allowing himself to be sworn in as the Acting Chief Judge of Abia State without being recommended by the council. It stressed that the decision to suspend the chief judge and the swearing-in of an acting chief judge without the input of the NJC was unconstitutional, null and void.

The NJC statement then said: “The suspension of the Chief Judge of Abia State (Justice Theresa Uzokwe) by the State House of Assembly without a prior recommendation by the National Judicial Council violates the provisions of the Constitution of the Federal Republic of Nigeria.

“Consequently, the subsequent act of appointing and swearing-in of Justice Obisike Orji as the Acting Chief Judge is invalid for being unconstitutional. Furthermore, the conduct of Justice Obisike Orji in presenting himself to be sworn in raises potential questions of misconduct that Council is now looking into. Council therefore resolved to query and suspend Hon. Mr. Justice Obisike Orji pending the outcome of its investigation.”

The above carefully demonstrates the importance the NJC attaches to the adherence to the constitution and due process. But all these were shattered on Friday when President Muhammadu Buhari unilaterally suspended Onnoghen and promptly swore in Justice Tanko Mohammed.

Though the president defended his action by citing an order from the Code of Conduct Tribunal, directing Onnoghen’s suspension, his action has been described by a cross section of lawyers and others as a judicial coup.

Onnoghen’s travails first began in 2016, when the president refused to confirm his elevation as the CJN. But as fate would have it, Vice-President Yemi Osinbajo, who was then the Acting President, swore him into office when the president was away on medical vacation.

About six months after he took office, there were rumours that he was being investigated, but each time the rumour came, the agencies accused would deny it. However, on January 7, a civil society group, the Anti-Corruption and Research Based Data Initiative, filed a petition with the Code of Conduct Bureau, accusing him of corruption and false declaration of assets.

A six-count charge was drafted at the Code of Conduct Tribunal (CCT). Initially the presidency denied having anything to do with his arraignment. In spite of the criticisms that the move against Onnoghen did not follow laid-down rules, the trial proceeded with unusual speed.

Last Thursday, the Court of Appeal in Abuja, in its ruling, ordered the CCT to stay action, pending the determination of Onnoghen’s application that the CCT had no power to try him.

But while Nigerians were waiting for the ruling, the president on Friday confirmed the fears that it was indeed behind the travail of the embattled CJN by proceeding with his suspension and the swearing-in of the Justice Mohammed in acting capacity.

The question begging for answers from observers is, should Mohammed have taken the position, when as a critical member of the NJC, he was part of the decision that forced Justice Orji to go on compulsory retirement for allowing himself to be sworn in as the Acting Chief Judge of Abia State?

They reasoned that both the suspension of Onnoghen and swearing-in of Muhammed in acting capacity by President Buhari followed the same pattern of how Justice Theresa Uzokwe was suspended by the Abia State House of Assembly and Justice Orji subsequently sworn in as acting Chief Judge of the state by Governor Ikpeazu.

Besides, Section 292(1)(a)(i) of the Constitution is very explicit on the due process for the CJN removal, when it stipulates as follows: “A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances . . . in the case of . . . Chief Justice of Nigeria . . . by the president acting on an address supported by two-thirds majority of the Senate.”

Also, with respect to the trial of the CJN before the CCT on the assets declaration charge, established judicial precedents dictate that the allegations must be referred to and handled by the NJC and it is only after its pronouncement can the federal government’s prosecuting agencies proceed against him before any tribunal or court of law.

In 2012, the Supreme Court ordered the Kwara State to reinstate its former Chief Judge, Justice Raliat Elelu-Habeeb, who was sacked in 2009 by Governor Bukola Saraki. The apex court in its judgment stated that under the 1999, the governor did not have the power to sack her from her position without the approval of the NJC.

“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 House of Assembly, the first port of call by the governor shall be the NJC,” Mahmud stated.
Her removal from office on May 4, 2009 by the State Executive Council was ratified by the House of Assembly following Saraki’s request. Justice Elelu-Habeeb sought redress in court

However, in its judgment, a panel of seven justices of the Supreme Court, led by Justice Mohammed Mahmud, held that under the 1999 Constitution, the state executive council and the governor cannot remove any judicial officer or a Chief Judge of a state without some input from the NJC and ordered her immediate reinstatement.

According to him, the NJC is equipped with the personnel and resources to investigate the inability of the chief judge to discharge the functions of his office and the subject of disciplinary action of removal through the committees of the council.

After citing several sections of the constitution, Justice Mohammed further held that: “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 on the removal of chief judges of states or other judicial officers in the states.”

Just like in the above stated case, not only does the president have not the powers to unilaterally remove Justice Onnoghen, he did not contact the Senate or the NJC before the action was taken and therefore, his action typifies impunity and disrespect for the laws of the land, which he swore to uphold.