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Abia Judiciary and its Crisis Awa Kalu, SAN, and Abia
Attorney-General spoke with Joseph Otteh, in this interview
“it appears that a lot of people are not happy that the Chief Judge has not been removed despite very gallant efforts. But let me say on record that it is not my responsibility to remove the Chief Judge”
AJ : (cuts in) concerning whom?
A-G : …concerning the judiciary, it was a challenge against some appointment procedure, procedure for appointment of the new judges.
AJ : O.K
A-G : And the matter was in the Federal High Court, as I said, these are matters of record. And I wrote the Chief Judge and I said, “Look we're cash-strapped in this ministry.” At that time I think I said in that letter that we had over one thousand (1,000) cases pending; and because of the cash situation... in the Government of Abia State, that we did not feel comfortable that we'd be operating from here to Abuja, especially on account of the circumstances of those cases. You finish one today and exactly the same thing will be filed and the files are here. So in response to that letter the Chief Registrar (when I was going to court in Abuja) funded that trip. He brought N50, 000:00 (fifty thousand). I acknowledged it because it's a matter of record. That is about the only time I recall. And if you look at it the way it is, moving from Umuahia at that time, there was no direct flight from Port Harcourt to Abuja unlike now. You have to fly through Lagos then from Lagos to Abuja and then you return. You have to sleep in a hotel. I'm a Senior Advocate of Nigeria, I can't appear in court alone. Each time I travel from here I move with two personal assistants in obedience to existing laws of the land. So it was to that purpose probably that the N50, 000:00 (fifty thousand) was dedicated. That is the explanation I can offer, because I have given some anxious thought to it. I asked my secretary to produce some - we have a file dealing with correspondence between the judiciary and us just like we have between this office and the office of the Governor, and even with the Legislative House. And I can justify that letter any time. I have written the Governor to institute an inquiry so that we can get to the root of this thing. I have to say on record that there're people who are anxious - you know - to make sure that they spatter my name with mud and it's not going to be possible. I have a record to defend. I'm not one local champion, even if I have to sound immodest about it. I have paid my dues in Nigeria. I have. I have worked very hard to earn whatever name they call me today. And there are people who are anxious because they think that I have overstayed, they think I have done more than four years I should leave. I'll be glad to leave any day the Governor says the time is up. But I have a responsibility here and it doesn't matter what the perception of external people may be, but the truth is, apart from that voucher every other thing that is flying around is a rumour.
AJ : You're saying the allegation is baseless just as you've explained the...
A-G : (cuts in) I don't even know that it's an allegation. As far as I'm concerned it is a product of extreme mud digging. They have dug into everything, including records in my own ministry here. And because they simply saw-they didn't even see my name-they just saw Honourable Attorney-General on the voucher and then they used one voucher to make an extrapolation which I find extremely nerve- wracking. You found one voucher then you run to a conclusion that the Attorney -General is paid by the Chief Judge. I have been here since July 1999, if I havebeen paid monthly how come it is only one voucher they can find?
AJ : I'm not even going to ask you about some of the personal allegations they made about money passing hands privately...
A-G : (cuts in) no, I'll be glad to answer them.
AJ : They don't emanate exactly from those people. I asked them after we received your letter, I spoke with one of the CRAN people and I said, “What's the source of this letter?” And he said it's not from him and he does not know the source, so I'm not even going to pursue that anymore.
A-G : I will even just mention for the record that CRAN has never written to me before of whatever their dispute is with the Chief Judge, and at any rate I got a letter, I think either early this week or late last week, about a disclaimer apparently from elements of CRAN narrating to the National Assembly and now CRAN wrote and sent me a copy that they had nothing to do with whatever was sent to the National Assembly.
AJ : (cuts in) State Assembly or National Assembly?
A-G : National Assembly. The National Assembly published either in ThisDay or Vanguard, inviting memoranda on the situation in the Abia State judiciary and that would give you an exact picture of what we're talking about when politics merges with law. You will be actually at a loss to know how the National Assembly is interested in what is happening in the Abia State judiciary. Constitutionally speaking I don't see any business they have with it.
“I have to say on record that there're people who are anxious - you know - to make sure that they spatter my name with mud and it's not going to be possible. I have a record to defend. I'm not one local champion, even if I have to sound immodest about it”AJ : One of the concerns CRAN officials have is the fact that you are a member of the State's Judicial Service Commission which could be said in some manner of speaking to be persecuting CRAN officials. And one of the reasons they may not have approached you is because they particularly see you as being sided with their chief adversary who is Justice K.O Amah. And you know, you've been on record – I have Newswatch Magazine here -you have queried the campaign by CRAN against the Chief Judge and again you've just explained that you didn't think it was right for many people to be invited to look into something that National Judicial Council has probed. But CRAN's argument on that is that-and this is also brought out by the House of Assembly's Report-is that what was looked into by the National Judicial Council was a part of a wider spectrum of allegations from the record...
A-G : (cuts in) I have record, like I said at the time I wrote them pointing out that unless they had new facts. I believe in a proper system.
AJ : You didn't get the petition by CRAN to the House of Assembly?
A-G : I said both CRAN and everybody – all those who are fighting the Chief Judge have never sent anything to me-including what they sent to NJC.
AJ : On what basis did you write the House of Assembly saying that the NJC had adjudicated those issues?
A-G : Because I saw them in the newspapers.
AJ : You couldn't have sought to get a copy of the petition one way or the other?
A-G : I don't have to seek; this is the office of the Attorney -General. I'm in charge of prosecution in the whole of the State and if there is a criminal allegation of criminal conduct against an officer of government of that level- I have a charge pending against a former Commissioner of this State, it's in the high court- if they have something against the Chief Judge I have correspondence here with the Chief Judge. At one time when he made a goal delivery almost a month after I wrote him. So it cannot be said that...
AJ : (cuts in) You were in court against them, the National Judicial Council – I mean not you personally- but you're a member of the State's Judicial Service Commission which is in court against some of these CRAN officials. And you also are a member of the body that was disciplining them, or suspending them from office, while...
A-G : (cuts in) If you want to know, because if CRAN had come to me possibly the point I want to make now would have come out. The CRAN members who were suspended were suspended by JSC during a meeting that I did not attend. These are matters of record. But how these things keep coming back to me is what I don't know. I was not even in the country when the meeting to suspend some members of CRAN was taken. I'm a member of JSC and duty bound by it. But to bring it back to me and say that I'm one of the persecutors is a point that I will not take.
AJ : In an interview you granted Newswatch you seem to have given the impression that you didn't see anything wrong with the JSC decision.
A-G : I don't see anything wrong with it.
AJ : Exactly!
A-G : That is because the slant was that those officials were disciplined because they had the guts to challenge the Chief Judge. I said no, the JSC informed me on record that there are disciplinary matters.
“But behind the scenes the move was like…when you remove him it's different. Take your case out of court; JSC will recall you. I participated in those behind the scenes moves. They refused.”
The JSC is the body constitutionally charged with hiring, disciplining, firing judicial officers and to that extent I then said if the JSC had disciplined persons whose cases were in court based on the action of the JSC then it was no longer the duty of the House of Assembly to direct JSC as to what to do; because there is a letter from the House of Assembly directing the JSC to reinstate those people. It's not like the question came out of the blues. As I pointed out to Newswatch, and I said it to ThisDay and some other persons. One of the correspondents of ThisDay who came to interview me - I put the question to him- if you take your management to court do you think you will remain in office? He said “no” he didn't think so. He confirmed it himself that when you take your employers to court you run a risk - you do run a risk anywhere in the world. And (that) my advice was that this matter could be resolved amicably if there was no Sword of Damocles hanging over the head of anybody. If they took their cases out of court it would have been easier to reach a resolution. Unfortunately they did not and so their matter remains where they are. How does it involve me?
AJ : One of the things...
A-G : (cuts in) it's easy for you to find out that I was not present at that meeting and unfortunately too I am not even very regular at meetings of the JSC, particularly because I have about fifteen (15) statutory meetings to attend, most of them often outside Abia State. So each time they fix a meeting I'm usually out of the State, andI write and say, “Please excuse me.” CRAN never made that investigation, but as I said, when you are occupying this kind of office you must get your own share of hate.
“The manner of conducting the business of the courts is intended to enhance public confidence. In the final analysis, it is people who have to believe in the integrity of their judges” - Kriegler J in the State. Mamabolo [2002] 2 CHR“The elite system of recruiting judges has largely failed in the face of political pressure exerted on the judiciary by a spectrum of malign, self-serving actors, ...these kept gnawing at the edges of the Judicature's moral capital, systematically leveling down its inner resources, until they cut right through to the centre...” - Joseph Chu'ma Otteh in a paper titled Restoring the Nigerian Judiciary to its Pride of Place” - The Guardian, March 7, 2004
“Some SANs, the moment they are so honoured, abandon the courtroom for boardroom and politics. This is not fair, to whom much is given, much is expected” - Chief Wole Olanipekun, excerpts of interview with AJ.
AJ : I seem to be very concerned about the remark you made about people exposing themselves to those kinds of risk when they take their employers to court in a public office, it seems to me that this is perhaps not very directly....
“The CRAN members who were suspended were suspended by JSC during a meeting that I did not attend. These are matters of record. But how these things keep coming back to me is what I don't know.”
A-G : (cuts in) not just public office, wherever you work...
AJ : (cuts in) I'm like saying...
A-G : (cuts in) if you're working in my chambers for instance, let's assume that I'm not Attorney- General...
AJ : (cuts in) but this is a public office...
A-G : (cuts in) it's a public office and there are nine of them...
AJ : (cuts in) nine?
A-G : Yes.
AJ : for different reasons...
A-G : No, no not for different reasons...
AJ : And many of them, to stop what they saw coming to them- they were going to be suspended-they were already being issued queries consistently, intermittently and they saw what was coming and they rushed to the court and said, “look, please hold on, let so and so process finish or we can't get fair hearing because you are our persecutor and you are the one sitting in judgment over us. So let the court determine that. What's so wrong with asking the courts to ensure, to maintain their fair hearing rights?
A-G : There's absolutely nothing wrong with that.
AJ : Why did they have to suffer?
A-G : They're not suffering- I don't know the terms of their suspension-anyway. I do know that they have been suspended but you must know there were people running around asking the Chief Judge to rescind the suspension. The Chief Judge said, “no I did not suspend them, they were suspended by the Judicial Service Commission.” Then the House of Assembly now ordered the Judicial Service Commission to rescind the suspension. And the Judicial Service Commission, I recall- because I have a file covering the JSC- wrote back and said constitutionally they were not to take instructions from anybody. But behind the scenes the move was like… this is a Chief Judge, when you remove him it's different. Take your case out of court; JSC will recall you. I participated in those behind the scenes moves. They refused.
AJ : They were afraid of the Chief Judge.
A-G : Why would they be afraid of him?
AJ : Because they have been...
A-G : (cuts in) I made that undertaking, not the Chief Judge. I said in the interest of peace and it's not the first time I have made that kind of undertaking. Unfortunately each time you want to intervene in a positive way people want to sow on their fears - but as I said, existence, daily existence as you would have found out even in your NGO requires a lot of courage. So you throw a dice it can fall either way. You have a matter in court it will not be statute- barred. All you do is give it a chance. You withdraw your suit. It is simply struck out. You wait one week, if you're not recalled you go back to court. I believe that was an opportunity to make all these things easier for each one of us. They refused insisting on their pound of flesh. And then Portia the wise judge said, “ O.K, your pound of flesh, no ounce of blood” and that is why they're where they are.
AJ : Sir, I take your explanation but I was just wondering –now it is the Chief Judge's turn to take the House of Assembly to court and it is the Chief Judge's turn to seek for perhaps some form of judicial protection for himself pending when the court resolves the matter that he should not be removed. Don't you see the irony in both positions-that at one time you're the Chief Judicial officer in the State and you had a court process pending saying don't take action until this matter has been resolved and you ignore that and you went ahead as the Chairman of the Commission and you got the Commission to actually suspend people and now you're going back to the same court and you're asking the same court....
A-G : (cuts in) you're drawing a conclusion that may not be informed...
AJ : Well may be I'm wrong...
A-G : In official matters, statutorily and constitutionally you must raise the presumption of regularity. If you look at the records I'm not aware that the Chief Judge voted for the suspension of those officers.
AJ : (cuts in) are you just being technical?
“I cannot recall any instance on which both of them were in agreement over anything at all. Then we had another lawyer who actually instigated most of the litigation I'm talking about - a member of the JSC at the time. And there is another lawyer member and two lay members. We've had occasions where two members nearly fought. The President of the Customary Court of Appeal on one occasion threatened to slap the Chief Judge over these kinds of matters that we're talking about. So I would tell you without equivocation that it's not been a very easy ride.”
A-G : No. I'm not being technical. The impression that's been given is that the Judicial Service Commission is a rubber stamp organization that does the bidding of the Chief Judge. We have fought him on many occasions. I'm a member of that body. So I feel extremely saddened when the impression is given that the man is an octopus ready to ravish everybody who is opposed to him. He's only a member: he does not have a casting vote. But then...
AJ : (cuts in) but not very many members of the Judicial Service Commission. It's just like many of them are not there. You are not there.
A-G : (cuts in) they have a quorum...
AJ : and it seems to me to be just a facade of...
A-G : (cuts in) let me finish the point-because we are reasoning together as lawyers. The President of the Customary Court of Appeal who recently retired for instance was never on the same wavelength with the Chief Judge. I'm just giving you an example that Justice Mba for example who is a very senior member of the Commission was never on the same wavelength with the Chief Judge. I cannot recall any instance on which both of them were in agreement over anything at all. Then we had another lawyer who actually instigated most of the litigation I'm talking about- a member of the JSC at the time. And there is another lawyer member and two lay members. We've had occasions where two members nearly fought. The President of the Customary Court of Appeal on one occasion threatened to slap the Chief Judge over these kinds of matters that we're talking about. So I would tell you without equivocation that it's not been a very easy ride. You don't wake up and suspend somebody.
AJ : You've talked very briefly about some of the efforts you've made to bring matters under control. What is the obstruction to that process? What in your opinion needs to give way so that there would be peace in Abia State judiciary?
A-G : Let's go back to a speech I made at a special High Court session for one of our deceased colleagues. I advised on that occasion that those who want the Chief Judge to leave should simply rest on the time worn philosophy that “God's time is the best.” That was the advice I gave on that occasion. There appears to be some measure of hurry about whether the Chief Judge goes or stays. The House of Assembly has made a recommendation. The Constitution does not set the time limit for instance as to when the Governor must act based on their recommendations. So it is for that kind of reason that I say what the Constitution says is that the Chief Judge may be removed on a recommendation by the National Judicial Council or in another instance on a recommendation by the House of Assembly. The House of Assembly has done that and I believe that people who believe in due process should then await the intervention of the Governor. The Governor has publicly acknowledged receipt of the recommendation of the State House of Assembly. The only thing that remains is for him to pronounce on it. For some reasons that I don't understand people say it is the Attorney- General who has refused to advise him.
AJ : That's because the Governor actually said that he was going to seek the advice of the Chief Justice of Nigeria...
A-G :(cuts in) and the Attorney -General's.
