Suspension of Abia CJ: Unconstitutional and Grievous Assault on Judicial Independence
Background
On Friday, the 26th of January, 2018, the Abia House of Assembly purportedly suspended the Chief Judge of the State, Hon. Justice Theresa Uzokwe from office, for alleged acts of “tyranny and gross misconduct” and, by a resolution, asked the Governor to appoint an acting Chief Judge for the State. The Abia House of Assembly thereafter, constituted an eight- member Committee, headed by Thomas Nkoro, to investigate the allegations against the Chief Judge, and submit its findings within a seven day period. The House of Assembly, acted pursuant to a petition written against Justice Uzokwe by two officials of the Global Centre for Peace and Justice.
The petition raised a considerable number of serious allegations against Justice Uzokwe; among others, it alleged that Justice Uzokwe constantly denigrated fellow judges, abused her powers as Chief Judge, engaged in uncivil, degrading and belligerent public behaviour, was confrontational and insolent to the Governor, and possessed very poor adjudicatory skills given, evidenced by how her judgement was heavily berated by the Court of Appeal in a particular case. It further alleged that she was mentally unstable, and had committed financial malpractices and denied the State Judiciary of needed funds for its operations.
The So-called “Suspension” of Justice Uzokwe
Notwithstanding the gravity of the allegations against the Chief Judge, the actions of the State Legislature were, speaking in terms of the Constitution, out of their reach. The “suspension” of Hon. Justice Uzokwe, as well as the purported appointment of Hon. Justice Obisike Orji as acting Chief Judge of the State, interfered with the autonomy and independence of the Judicial branch of government. Nigeria’s Constitution makes the Judiciary, to a large extent, a self- governing institution, un-beholden to executive or legislative branches of government. The purported “suspension of the Chief Judge of Abia State, therefore, was an invidious invasion of the territory of another.
First, the legislature of Abia State, has no powers to suspend the Chief Judge or any Judge of the Abia State Judiciary. A suspension has the effect of interfering with the exercise of powers of an incumbent, in this case, the Chief Judge. While the legislature may investigate allegations concerning the conduct of the Chief Judge, or the management of the affairs of the Judiciary or administration of justice in the exercise of its legislative oversight functions, it cannot, by resolution, order any action that interferes with the Chief Judge’s ability to oversee the affairs of the Judiciary without the involvement of the National Judicial Council (“NJC”). The NJC is the “clearing house”, as it were, of all complaints against superior court Judges/Justices, including Chief Judges, and even where the executive wishes to exercise its powers under section 292 (1)(ii) of the Constitution to remove a delinquent Chief Judge, it must first pass through the NJC - JUSTICE ELELU-HABEEB & ANOR v THE HON. ATTORNEYGENERAL OF THE FEDERATION & ORS. Therefore, the Executive and Legislative branches of government in Abia State overreached their powers, as well as usurped the role and jurisdiction of the NJC in “suspending” Chief Judge Uzokwe from office.
Second, neither the legislature nor the Executive Governor, can appoint an acting Chief Judge unless the incumbent of that office is unable to perform the functions of the position. A forced “suspension” from office will not, it clearly appears, represent a valid parameter for indicating that an incumbent is absent from office, for the purposes of giving the Governor the power to appoint the next most senior Judge to act as Chief Judge.
Precedents Hark Back to a Turbulent Era
This is not the first time State Governments have sought to overthrow the leadership of a State Judiciary; we saw these attempts in the first decade of the 21st century. In 2006 for example, the Ekiti State House of Assembly “suspended” the (then) Chief Judge of Ekiti State, Hon. Justice Bamisile and appointed Justice Jide Aladejana as Acting Chief Judge, following attempts to impeach Governor Ayo Fayose. At that time, the NJC wrote to acting Chief Judge Aladejana advising against accepting the appointment. In a letter to Hon. Justice Aladejana following the acting appointment, Hon. Justice Belgore, then Chairman of the NJC and Chief Justice of Nigeria, stated unambiguously that: “... the perceived imminent constitutional crises in the State mentioned in your letter notwithstanding, the procedure and circumstances under which you have been appointed are contrary to the aforesaid provision of the 1999 Constitution on appointment of an Acting Chief Judge”. “Hence, any action by you in your capacity as the Acting Chief Judge will be unconstitutional”. But Hon. Justice Aladejana rebuffed the entreaties. He was subsequently, suspended by the NJC for several years.
In November, 2006 as well, Governor Dariye of Plateau State, purportedly removed the acting Chief Judge of Plateau State, Justice Lazarus Dakyen, and, in his place, appointed Justice Ya’u Dakwang as acting Chief Judge. The NJC held the replacement was illegal, and suspended and subsequently sacked Justice Dakwang, for accepting the politically-motivated appointment.
Justice Obisike Orji’s Untenable Acceptance of Office
We turn our attention, to the poisoned chalice given to Hon. Justice Obisike Orji. Justice Orji’s acceptance of the office of acting Chief Judge, we think, respectfully, was imprudent and wrong in the circumstances in which it was offered, given that the substantive holder of that office, was not lawfully removed. Justice Orji’s conduct in this respect does not promote the cause of judicial independence, notwithstanding any issues that may have arisen with the performance of the substantive Chief Judge, and whatever may have been his personal predilections over the leadership of the State’s Judi-
“FIRST, THE LEGISLATURE OF ABIA STATE HAS NO POWERS TO SUSPEND THE CHIEF JUDGE OR ANY JUDGE THE ABIA STATE JUDICIARY”
ciary. Judicial officers ought to remain at the forefront in defending judicial independence, and remain bulwarks of resistance to efforts by anybody to undermine that autonomy.
The Response of the National Judicial Council
As this development was being analysed, the NJC weighed in, declaring the suspension of Hon. Justice Uzokwe illegal, as well as suspending Justice Orji and querying him for accepting the acting appointment. The NJC also said that it was, “in the interest of the smooth administration of justice in Abia State, resolved to direct the Chief Judge, Hon. Justice T. U. Uzokwe, to stay away from duties pending Council’s final decision after consideration of the report of its Panels”. The NJC further recommended that the next most senior Judge, after Justice Orji, be sworn in as acting Chief Judge.
The NJC did well to be on its front foot on this matter, and to rebuff the contumacious affront of the Abia State Government to the Judiciary, thereby continuing its legacy, in this respect, of defending its territory jealously. Yet, for all its zealous defence, the NJC
buckled in one respect – suspending the incumbent of that office, Justice Theresa Uzokwe, pending the “... consideration of the report of its Panels”. Ensuring that Justice Uzokwe was “suspended” or even removed from office, was just what the Abia State Government was shooting for, and this NJC decision will be just what the doctor ordered for the government. All things considered, it’s still a win for the Abia State Government, at the end of the day.
Overall however, there are mitigating factors for NJC’s moderate diplomacy on this matter. The Council walked a fine line, and we can infer that its decisions were calibrated to take account of the portrait of the situation on the ground in Abia State. Moreover, the Judiciary is, institutionally, forbearingly cautious when it is dealing with political branches of government, particularly in situations that may bring it in direct, political conflict with those branches. Additionally, anecdotal evidence suggests that the administration of justice in Abia State, has been in some straits under Justice Uzokwe as Chief Judge, and the allegations against her are quite troubling.
The NJC could have taken the option to insist that Justice Uzokwe be returned to office first, before suspending her, if it wanted to. That could have been a more defining and robust way, to make a Statement about respecting judicial independence to the other branches of government, but the Council settled for what appears to us, as a more politically pragmatic and less confrontational option.
Howsoever it is, we think that the NJC should thoroughly investigate the state of affairs of the Judiciary in Abia State, and not just determine the petitions against specific role actors. The situation in Abia State Judiciary is, we contend respectfully, well beyond what can be resolved through petitions alone. The Council should empanel a fact-finding Committee to determine whether the substantive Chief Judge, Hon. Justice Uzokwe, has been able to provide the quality of leadership that is conducive to the smooth administration of justice in the State, or whether she is just a victim of political vendetta. Thereafter, it can take any necessary actions from its findings.
Conclusion
The actions taken by the Abia State government regarding the leadership of the Judiciary, were a culmination of a longstanding frosty and fractious relationship between the government and the head of the Judiciary of that State. Indeed, a while ago, the Abia State Governor had dissolved the Abia State Judicial Service Commission and reconstituted it, based on a determination that the Commission was “incompetent”, and did so supposedly in violation of an order of court. Thereafter, two different Judicial Service Commissions were “created” with different sets of members, and all of this amidst constant bickering between the Attorney-General and the Chief Judge. The latest actions were, therefore, the climax of a crisis that had smouldered for a long time.
All of this is unfortunate, but it is perhaps more sobering to note that, these foreboding signs did not trigger some prophylactic interventions by concerned stakeholders, including the NJC and the Bar, to arrest the descent into this chaos. Maybe if some determined actions had been taken when the early warning signs were screaming all over the radar, this may have been avoided. And this could very well be the lesson that needs to be learnt from the current crisis in the Judiciary of Abia State.
“....THE POSITION IS THAT, BEFORE THE PRESIDENT OR EXECUTIVE GOVERNOR OF A STATE CAN EXERCISE THE POWER OF REMOVAL OF A HEAD OF COURT, SUCH CAN ONLY BE DONE ON THE RECOMMENDATION OF THE NJC, AND NOT OTHERWISE”