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Oyo State : Let the Judiciary Beware

-Lloyd Okereafor

 “An independent judiciary is an indispensable prerequisite of a free society under the Rule of Law. The Rule of Law implies the existence of courts where the judges are completely insulated from pressure from the Legislative or Executive arms of government; where the judges secure from any fear of interference or removal, do their duty fearlessly, holding the balance and the scales evenly, not only between man and man, but also between man and the state” - Hon. Justice Chukwudifu Oputa JSC (Rtd), in The Law and the Twin Pillars of Justice.

Nigerians, and indeed the world are watching as political office holders have once again taken their battle into the judicial precincts. This time the arena is the Oyo State Judiciary. Not that this is unexpected considering the constitutional responsibilities of the judicial arm of government, however it becomes worrisome when judicial officers charged with the responsibility of resolving their disputes carry on regardless of tell -tale signs of the ill wind associated with previous episodes, which have often times left the judiciary scorched and ridiculed in the politicians’ battle for supremacy. It becomes instructive that judicial officers take heed, lest they fall.

On 6 th June 2007, t he Oyo state Governor, Otunba Alao Akala reportedly sacked, the state’s Acting Chief Judge, Hon. Justice Olagoke Ige and immediately replaced him with Hon. Justice Afolabi Adeniran within the context of a widely perceived design to ensure the quashing of the governor’s indictment for corruption by an administrative panel set-up by the former administration. Though Justice Ige’s appointment as acting chief judge is said to have remained unconfirmed by the National Judicial Council (NJC) in line with constitutional dictates, Justice Ige was reportedly sacked for being indifferent to a similar application recently dismissed by another judge. A fresh application to quash the governor’s indictment is reportedly to be heard by the newly appointed acting chief judge, Hon. Justice Afolabi Adeniran.

We are very concerned about the total subversion of the rule of law in the course of pursuing a political objective, the invidious interference with judicial independence and the politicization of judicial office and function, all of which is implicated in the instant choice of the new acting chief judge.

By Section 271 (4) and (5) of the 1999 Constitution, where the office of 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 substantive chief judge is appointed, the governor of the state shall appoint the most senior judge of the High Court as acting chief judge, and failing confirmation of the NJC, such appointment shall cease to have effect after 3 months from the date of such appointment, and the governor shall not reappoint a person whose appointment had lapsed.

The text of the constitution explicating the appointment and tenure of office of an acting chief judge are couched in terms that do not fall within the penumbra of doubt, and a proper construction of the sections show that in the absence of a confirmation of such appointment, once the most senior judge has served in an acting capacity as chief judge for a 3 month period, the next most senior judge is to be appointed into the position for another 3 month period. Consequently, Justice Afolabi Adeniran, having served as the immediate past acting chief judge cannot be reappointed into the same position now, his appointment having lapsed within the meaning of the referenced constitutional provisions. Besides, it may be instructive to note that Justice Ige was reportedly appointed to replace Justice Adeniran on March 19, 2007. Thus his removal on 6 th June this year falls short of his constitutionally guaranteed 3 month tenure.

It may be recalled that Hon. Justice Afolabi Adeniran had earlier assumed the position of Acting Chief Judge following the controversial removal of Hon. Justice Isaiah Olakanmi as chief judge of Oyo State (a matter which is still being litigated), but he held the position for several months without NJC confirmation, until he was replaced by Hon. Justice Olagoke Ige, following his role in the impeachment of former governor Rasheed Ladoja. It may be recalled that it was Justice Afolabi Adeniran, who constituted the controversial investigation panel that indicted the former Governor Rasheed Ladoja on account of which he was impeached as governor.

It is disturbing that immediately upon assumption of office, the new acting chief judge has reportedly assigned the hearing of the fresh application to quash governor Alao Akala’s indictment to himself. While we would not in other circumstances impugn his assignment of an important political case to himself, the controversy surrounding his appointment, and the seeming desperation of the state executive to quash the indictment (which is reportedly a major ground of a pending electoral petition against the governor) suggest otherwise. Besides, his decision to take the application negates a fundamental rule of fair hearing that a court or tribunal charged with the determination of a person’s rights and obligations must be constituted in a manner as to secure its independence and impartiality. It is difficult to see how the public would perceive the justice of any favourable decision he hands down in respect of the application, and it is the need to avoid such predictable outcome that we all must guard against, for it is axiomatic that justice must not only be done, but must be manifestly seen to have been done. This scenario would make more meaning if we recall that the removal of Hon. Justice Ige as acting chief judge was reportedly as a result of his failure to use his office to influence the quashing of the indictment.

Given the above scenario, the proper course for Justice Afolabi Adeniran is first to decline the invidious, highly suspect and unconstitutional appointment. He should disavow and renounce the so-called appointment and recall all the processes he initiated in purported exercise of that power, and disclaim all authority to act in the office of acting Chief Judge, immediately. Secondly, he should immediately withdraw from the case, and have it reassigned to another judge of the Oyo state High Court, to avoid putting himself in a situation that would question his impartiality in dispensing justice in the case. Perhaps Justice Adeniran should take a cue from the recent posture of the NJC in suspending the chief judges of four states namely Hon. Justices Chuka Okoli (Anambra), Yau Dakwang (Plateau), Kayode Bamisile (Ekiti) and Jide Aladejana Ag. CJ (Ekiti), for their roles in the impeachment of their state’s governors.

The point cannot, in the circumstances, be over-stated that Nigerian judges must show better resilience in the delicate struggle to protect their space, integrity, independence and public trust. The questionable appointment of the new acting chief judge and his reported intention to personally hear the fresh application to quash the indictment of the governor, and the predictable outcome of it, are quite disappointing portrayals for judicial officers, and make these judicial officers look exactly like authorized proxies of opposing political camps, holding their powers of attorney. The Judiciary has a primordial role in protecting our hard-won democracy, and the rule of law in Nigeria; what is happening in Oyo State completely negates that role, and indeed, seriously undermines it.

In the circumstances, there is need for the NJC to express its readiness to exercise its oversight disciplinary powers against judges who wantonly, and without regard to the due process of law, accept to discharge the functions of an illicitly acquired judicial office conferred in complete breach of the constitution, and in total ridicule of the judicial branch of government. The NJC must keep its fingers on the pulse of the unfolding events in Oyo State and be ready to give the red card to impertinent Judges.

The events in Oyo State have brought the judiciary into disrepute and embarrassment and this has become, unfortunately, a familiar, episodic result when political office holders fight their rough, tacky political battles in judicial precincts. It no doubt appears that opposing political camps in Oyo State have infiltrated influential parts of the Oyo judiciary and are trading hard tackles through a judiciary aligned to their contentious political causes. The contours of this knock-down, drag-out political battle in Oyo State is reproduced in the starry division and internecine conflict within the judicial branch, and these have, no doubt, compromised again, the stature of the Judiciary, not only in Oyo State, but Nigeria as a whole. In the unfortunate history of judicial involvement with political conflicts, the judiciary has invariably emerged fatally wounded in the eyes of the public. The cases of Justices Egbo- Egbo, Bart Nnaji, Matilda Adamu, and Christopher Senlong all carry sad references.

Beyond the Judiciary, we are very worried about how the rule of law is being side-tracked in order to accomplish political expediencies. It is the rule of law that under-girds a constitutional democracy, liberties and rights of a people and the legitimacy of any political goal. By treating the rule of law as an expendable luxury, in the need to gratify expediencies, (even those of great importance), we create precedents that stand against us in the times we need to rely on law and rules to protect our rights and liberties. And history teaches that even the protagonists in the prevailing currents may not be spared in the backlash. Government must end the brazen and capricious disrespect for the Constitution, and respect constitutional procedures in all its actions.

Signed,

Lloyd Okereafor

Lloyd Okereafor is a Legal Officer of Access to Justice (AJ). AJ is a non- political, non- profit organization working to defend rights of equal and non-discriminatory access to courts of law, expand access of marginalized people to equal and impartial justice, attack corruption in justice administration, support legal struggles for human dignity and disseminate legal resources that help achieve these purposes.