Legal arguments have been flying around since the news of the removal of the Chief Judge of Abia State by the Abia State House of Assembly filtered in. The special adviser to the Governor on Public Communication has released a statement justifying the swearing in of an acting Chief Judge by the governor .In his statement below posted on social media,he stated that the governor acted within the ambit of the law
Earlier today, Governor Okezie Ikpeazu swore in The Honorable, Mr. Justice Obisike Orji as the Acting Chief Judge of Abia State. Prior to this appointment, Justice Obisike Orji was the next most senior Judge in the Abia State Judiciary after the now suspended Chief Judge, Justice Theresa Uzokwe.
Naturally, this appointment and subsequent swearing in has elicited a variety of reactions. Some persons are of the view that the appointment was improper since the input of the National Judicial Council was not made.
Persons who hold this view are laboring under a grievous misapprehension of the clear and unambiguous provisions of the Constitution of the Federal Republic of Nigeria 1999, as amended.
Surprisingly, even some legal practitioners are trapped in this needless confusion.
For the avoidance of doubt, the procedures for the appointment and removal of the Chief Judge of a State as well as the appointment of an Acting Chief Judge of a State are matters clearly specified in the Constitution.
Please join me as we take take this voyage into the 1999 Constitution, as amended.
.Our first port of call is Section 292 (1) (a) (ii) of the Constitution. For clarity, I shall quote that subsection verbatim.
It provides as follows –
(1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances-
(a) in the case of
(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State BY THE GOVERNOR ACTING ON AN ADDRESS SUPPORTED BY TWO THIRDS MAJORITY OF THE HOUSE OF ASSEMBLY OF THE STATE.
Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct. (Emphasis mine)
I didn’t bother to reproduce paragraph (i) of the above since it deals with Federal Courts and therefore inapplicable to this situation.
What this means is that once the State House of Assembly passes a resolution removing from office, the Chief Judge of a State and such resolution is supported by two thirds majority of the members of the House, the Chief Judge stands removed, without any further ado. This removal can be by suspension, depending on the procedure adopted by the House.
This morning, the Governor was notified of a sitting of the Abia State House of Assembly wherein the resolution suspending the Chief Judge was passed.
The State Legislature, as an independent arm of Government
has discharged its assignment as specified under the constitution. That notification by the House of Assembly 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. Besides, the Abia State Judiciary cannot stay without a Head.
Please note that the appointment made by the Governor is that of an Acting Chief Judge.
I shall return to this later.
ROLE OF THE NJC?
In the above situation, the National Judicial Council has no role. I shall explain.
Section 292 of the Constitution clearly specifies TWO WAYS of removing a Judicial Officer.
Subsections (a) and (b).
Subsection (a) speaks specifically to the removal of Heads of the Judiciary. It has two paragraphs.
Paragraph (I) of Subsection (a) talks about the removal of Heads of the Federal Judiciary like the Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, President of the National Industrial Court, Chief Judge of the High Court of the FCT Abuja, President of the Customary Court of Appeal, Abuja and the Grand Kadi of the Sharia Court of Appeal of the FCT Abuja.
The other Paragraph which I had earlier quoted verbatim deals with the removal of the Heads of State Judiciaries.
Therefore, for the removal of the Head of the Judiciary of a State, the Constitution doesn’t give any role to the NJC.
The role of the NJC is gleanable from Paragraph (b) of Section 292 (1)of the Constitution. Let me take the trouble and for purposes of clarity, reproduce it verbatim here.
(b) in any other case, other than those to which paragraph (a) applies, by the President or, as the case may be, the Governor ACTING ON THE RECOMMENDATION OF THE NATIONAL JUDICIAL COUNCIL that the judicial officer be so removed for his inability to discharge functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.
So, this paragraph deals with JUDICIAL OFFICERS alone. You cannot, for instance, remove a Judge of the High Court without the active input of the NJC.
It’s different from that of a Chief Judge who can be removed by the Governor, once the State Assembly activates the process by passing the resolution supported by two third majority of its members.
This makes sense.
Once a Judge becomes the Chief Judge of the State, he doesn’t just perform judicial functions alone but performs sensitive administrative functions which touch on the activities of the state government.
This explains why the framers of our constitution deemed it fit to ensure that the State Legislature can censor the activities of the State Chief Judge and if they find him wanting can activate the process of his removal from office.
For example, by the logic of the financial autonomy granted to State Judiciaries, the State Chief Judge has enormous powers over the funds of the Judiciary. Since it is the State House of Assembly that appropriates money to all departments of Government and also has oversight powers over how such funds are deployed, that power is also there to check the activities of the Judiciary.
If the State House of Assembly, under our Constitution, can lawfully impeach the Governor of the State, why would anyone be surprised that they could activate the removal of the State Chief Judge?
But because of the pride of place given to the Judiciary under our democracy, the constitution makes the process stringent. It is not easy to muster the support of two third majority of members of the State House of Assembly. Any issue that garners the support of two thirds of the members must be serious indeed. And it doesn’t end there. The Governor must act on the resolution before it can work.
As you can see, neither the Governor nor the State Assembly can remove the Chief Judge except they act together and procedurally.
So once the Governor removes the Chief Judge following the resolution or address of the State Assembly, what follows?
Again the Constitution provides a clear guide.
Section 271 (4) of the 1999 Constitution answers the question. Let me also reproduce verbatim,
(4). If the office of the Chief Judge of a State is vacant or if the person holding the office is for ANY REASON unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, THE GOVERNOR OF THE STATE SHALL APPOINT THE MOST SENIOR JUDGE OF THE HIGH COURT TO PERFORM THOSE FUNCTIONS. (Emphasis mine).
Let’s see Subsection 5. It has an interesting provision.
(5). Except on the recommendation of the National Judicial Council, an appointment pursuant to Subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment and the Governor shall not reappoint a person whose appointment has lapsed.
What this simply means is that any person so appointed as Acting Chief Judge by the Governor can only remain in office lawfully for three months, except with the recommendation of the NJC.
The idea is that a person should not hold office for more than three months as Acting Chief Judge. Before the expiration of the three months, the Governor either takes steps to confirm his appointment on the recommendations of the NJC or appoints another Judge as Acting Chief Judge for another three months.
Finally, once the Acting Chief Judge doesn’t exceed three months on office, his appointment remains valid and doesn’t require any input from the NJC.
Please note that in the appointment of a SUBSTANTIVE Chief Judge of the State, the Governor must make such appointment only on the recommendation of the NJC and upon the confirmation of such appointment by the State House of Assembly in line with the provisions of Section 271 (1) of the Constitution.
Justice Obisike Orji, the new Acting Chief Judge hails from Umuahia North LGA.
Onyebuchi EMEMANKA, ESQ.
Special Adviser to the Governor on Public Communications.
January 26, 2018.