As Adeleke Dares NJC over CJ Removal

An attempt by Osun State Governor, Ademola Adeleke to remove the state’s Chief Judge has again raised the question of whether a governor can appoint, discipline or remove any judge from office without the approval of the National Judicial Council, Wale Igbintade writes

Osun State Governor, Ademola Adeleke was recently in the news for the wrong reasons when he suspended the state Chief Judge, Justice Oyebola Adepele Ojo following a resolution by the State House of Assembly.

The lawmakers had levelled allegations of misconduct, abuse of power, corruption and disregard for the rule of law against Justice Ojo. Though it did not state in detail what the offence of Justice Ojo was, her supporters claimed that her offence was not unconnected with the fact that she chose to be patriotic by following the rule of law when she was allegedly asked to set criminals free. 

On their part, Adeleke’s loyalists claimed she was sympathetic to the cause of the All Progressives Congress (APC).

Justice Ojo was said to have resisted alleged pressure from the agents of the state government to free Dr. Ramon Adedoyin, owner of the Ile-Ife hotel where a master’s degree student of the Obafemi Awolowo University, Timothy Adegoke, was killed last year and insisted that no sinner should go unpunished.

She consequently sentenced him to death for being responsible for Adegoke’s murder, a judgement that did not go down well with some powerful forces in the state.

Announcing Justice Ojo’s suspension, in a statement, the governor’s spokesperson, Rasheed Olawale said Adeleke approved the resolution of the state House of Assembly passed on November 16, asking Justice Ojo “to step aside pending investigation of allegations” against her.

Olawale, in the statement, reproduced the state assembly’s resolution in which it was stated that asking Justice Ojo to step aside was “not for any disciplinary action, but to allow for proper investigation of the allegations.”

The lawmakers tasked its Committee on Judiciary, Public Petitions and Legal Matters of the House of Assembly, to investigate the petitions against Justice Ojo. It asked the committee to invite the chief judge and report to the House within seven days.

On the same day, the governor, in another statement by his spokesperson, announced the appointment of Justice Olayinka David Afolabi as the acting Chief Judge, in line with the assembly’s resolution that “the next in order of seniority to Justice Ojo be sworn in immediately to avoid any vacuum in the third arm of government in Osun State.”

But Justice Afolabi, realising that accepting such an offer, could lead to his compulsory retirement from service, rejected the appointment.

The action by the Osun State government sparked reactions from the Nigerian Bar Association (NBA) and many civil society organisations which not only rejected the move but described it as illegal.

The action again rekindled the question of whether a state can appoint or remove the Chief Judge from office without the approval of the National Judicial Council (NJC), the body statutorily empowered to play the central role in the appointment and discipline of Nigerian judges.

On many occasions, instead of appointing the most senior judge of the state High Court, some state governors on account of gender, religion, favouritism and other political considerations, had attempted to alter the order of seniority by sometimes appointing junior judges or those outside the state High Court as Chief Judges.

Whether in Rivers, Abia, Kogi, Gombe, Cross River or Kwara State, the NJC has consistently been warning state governors and their Houses of Assembly that they cannot appoint or remove a chief judge without its input. But the governors have continued to make failed attempts to flout this constitutional provision.

The strongest judicial imprimatur to vindicate the NJC came from the Supreme Court in May 2009 when the then Governor of Kwara State, Dr. Bukola Saraki, sacked the state Chief Judge, Justice Raliat Elelu-Habeeb, from office over alleged corruption, misconduct, as well as high handedness in handling the crisis in the judiciary. Rather than notifying the NJC, Saraki wrote a letter to the state House of Assembly, complaining about the chief judge and the need to remove her from office.

Upon receiving the governor’s letter, it took the lawmakers just 45 minutes to deliberate on the issue and give unanimous approval to the governor’s request.

Justice Elelu-Habeeb then went to the Federal High Court in Ilorin which ordered that she should be reinstated. But the state government appealed the judgment and won. Consequently, Justice Elelu-Habeeb approached the Supreme Court.

In 2012, the seven-man panel of justices of the apex court led by Justices Walter Onnoghen, Christopher Chukwumah-Eneh, Muhammad Muntaka-Coomassie, Olufunmilola Adekeye, Mary Peter-Odili and Olukayode Ariwoola, in a unanimous decision, declared all the actions taken by the Kwara State government and the state House of Assembly on Justice Elelu-Habeeb’s removal as a nullity.

Citing Section 271(1) of the 1999 Constitution, the apex court said: “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. 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.”

 Justice Mohammed said: “The NJC 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 appointments to the offices of chief judges of the states and other judicial officers in the states. The same NJC is also empowered under Subparagraph (10 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. 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 judicial officers in the states.”

Based on the backlash that followed the purported removal of Justice Ojo from office and the refusal of Justice Afolabi to accept his appointment, Governor Adeleke last weekend made a U-turn. In a statement through his Commissioner for Information and Public Enlightenment, Alimi, Adeleke said he forwarded the resolution and recommendation of the state assembly to the NJC for decision and action.

“Governor Adeleke has only duly notified the Chief Justice of the Federation as the Chairman of the NJC in writing about the resolutions of the House of Assembly following a series of petitions made against the sitting Chief Judge of Osun State,” the statement read.

“To that end, the governor in the same letter recommended to the CJN, the appointment of the most senior judicial officer, Justice Olayinka Afolabi for thorough consideration and further processing by the same NJC through the CJN.”