Journals
-The Justice Observatory Journal Published by Access to Justice Publication and Subscription (TOJ)
Enugu Chief Judge Appointment Saga:
How the NJC Shot itself in the foot
By Joseph Otteh
An Emeritus Justice of the Supreme Court, and member of the NJC further petitioned the Chief Justice of Nigeria, analyzing why it would be a misjudgment to appoint anyone but the most senior judge as Chief Judge, and warning of the dire consequences of appointing Justice Umezuluike Chief Judge. He told the Chief Justice that his “greatest worries over the entire exercise are that it is politically loaded, and so prone to so many destructive rumours” and further said that the NJC's procedure “on the matter as a whole, can be easily faulted”. He told the CJN that he could not support the decision to recommend Justice Umezuluike “as I do not see that we can be seen as implanting illegality and unconstitutionality….”. That last representation, from what we learnt, even though it came on the heels of the NJC meeting of the 8th and 9th of December 2004, was too late, given the haste with which the NJC acted after its meeting.
| A Filibuster Succeeds and the NJC Capitulates |
In what was a dramatic “summersault”, as one Senior
Advocate and former member of the NJC would put it, the NJC, after a meeting on the 8th and 9th of December, in a hotly contested decision, resolved to recommend Justice Umezuluike for appointment as Chief Judge of Enugu State. With frantic speed, the House of Assembly confirmed the choice, and on the 13th of December 2004, Justice Umezuluike was sworn in as Chief Judge, ending a long and fractious period of scheming and anticipation not only for the Enugu State people, but for many Nigerians.
Justice Umezuluike's appointment has brought disappointment to many, including even some members of the National Judicial Council. And many things account for the bitterness – the “capricious” supercession of another candidate who ought, by respected tradition, to have taken the position; the easy victory for opportunistic political strategizing, the grievous failure of the NJC to defend the cornerstone tradition of precedence, and rescue the state's Judiciary from the predatory reach of the executive branch, and the fears that the Enugu State Judiciary will be unable to assert its independence and protect the rights of its citizens from governmental repression
“We think the NJC's view of its role in the appointment process is austerely narrow, and its failure to investigate allegations against the candidates before reaching a decision, based upon the grounds it asserts is flawed” |
In a letter written to the Chief Justice of Nigeria, Hon. Justice M.L. Uwais, a member of the NJC who disagreed with the Council's volte-face in the matter wrote that: “[a]ll the good people of Enugu State who know the way Hon. Justice Umezuluike had “supported” Governor Chimaraoke in the past have been shocked to their marrows because they believe that a repeat of the manifestation of those grounds for the support would even mean bye-bye to the rule of law, democracy, fairness, and justice in Enugu State for as long as the present government is in power. They recall with deep bitter emotion, serious cases which Justice Umezuluike had decided wrongly in favour of government, to the chagrin of many citizens.”
Given how many people have come to see Justice Umezuluike's pedigree - the decisions he has taken upon vexed political questions involving the present Enugu State Government, the thinking in governmental quarters that he will support the government of the day - Hon. Justice Umezuluike's appointment will no doubt further weaken public confidence in the fledging stature of the judicial branch of that State. Yet, Hon. Justice Umezuluike does have some admirable credentials. He commands towering intellectual respect, and even his antagonists attest to his scholarship. Will Hon. Justice Umezuluike make a credible effort to dispel these fears? He is unlikely to do so if he intends to continue to remain Chief Judge. It is a lot easier to remove a Chief Judge intransigent to a Chief Executive than to appoint one.
| “Independent” Judicial Service Commissions: The Myth and the Fact |
To any observer, it is simply amazing how a Gover-
nor could cut through a tripartite maze of “independent” judicial establishments to impose his own choice of candidate as Chief Judge of Enugu State. The Enugu State Judicial Service Commission, prior to this period was headed by that “elephant on the bench” as his biography describes him, in the person of Hon. Justice Ugwu. Nothing showed however, that this Commission acted independently, or that he brought his “elephantine” powers to bear in the appointment process. Justice Ugwu, had even more reason to uphold the order of precedence in the selection of a new Chief Judge. He, himself, had nearly been superceded in his own time. When Hon. Justice Eze Ozobu was retiring as Chief Judge of Enugu State, and an attempt was made to appoint someone else other than the next in line of precedence, eminent lawyers took up battle for him. It was the same Chief Anthony Mogboh, who unsuccessfully protested now, that successfully protested then, as Bar Chair, the attempt to pass over Justice Ugwu, in Ugwu's own time
This time around, Chief Mogboh SAN and the two other Senior Advocates, bluntly
told the NJC that “there …[was] no reason why he [Justice Ugwu] should not champion the cause of the next most senior judge,” “unless the retiring Chief Judge has any hidden agenda”. That hidden agenda, most likely, was present; it was the agenda of the Chief Executive of Enugu State. For many in Enugu State, the State Judicial Service Commission was merely a rubber-stamp, devoutly beholden to the Chief Executive of Enugu State, Governor Chimaroke Nnamani. In his valedictory speech, retiring Justice Ugwu spoke glowingly and effusively of Governor Nnamani's performance as State Governor. He said Nnamani was a “wonderful Governor” whose record of performance “… is unbelievable” and that the Governor had kept his promise of changing Enugu into a new city.
Many people in Enugu State did not expect more from retiring Hon. Justice Ugwu: under his tenure as Chief Judge, many felt that the courts were impotent when it came to circumscribing executive or legislative arbitrariness, and some that Access to Justice spoke to said that Hon. Justice Ugwu, personally, was weak, and inert. Concerning the National Judicial Council, many are still befuddled, aghast and disappointed that the Council could not draw from its inner resource to stop what was a bland and blatant filibuster tactic by the Enugu legislature, or withstand the huge pressure brought to bear on it by political actors. In response to inquiries made by Access to Justice/The Justice Observatory Journal the NJC said that it recommended the appointment of Hon. Justice Umezuluike on constitutional grounds. According to the NJC “if the Governor or the House of Assembly rejects the recommendation of a candidate by the National Judicial Council, it [NJC] will recommend the next most senior and suitable candidate for appointment, hence the recommendation of Hon. Justice Umezuluike.” Clearly the NJC, has interpreted its constitutional authority in the appointment process as a deferential one that accords higher respect to the wishes of another arm of government over its own.
The NJC, the constitutional body created to insure that the Judiciary exercises greater autonomy and control over who becomes a judge or controls the judiciary, in our view, fell flat on its face when it mattered the most, and in so doing, dashed the hopes of many who had reposed, perhaps, too much of a blind faith in its authority, stature and strength.
“Although there are many forms of high treason, none of them is so serious as that which is executed against the body of justice itself. Tyranny is, therefore, not only a public crime, but if this can happen, it is more than public. - John of Salisbury (1115 - 1180), English bishop and author of Policraticus, the most influential work of political philosophy in the 12th century. |
“The complete and real independence of the Judiciary is thus a reflection of the nation and of freedom” – Hon. Justice Uwais, GCON, CJN, excerpt of paper delivered at the Opening Ceremony of the 2003 All Nigeria Judges Conference at Abuja. |
