How Abia Compromised Judicial Independence in Removing CJ
“THE INDEPENDENCE OF THE JUDICIARY AS A THIRD ORGAN OF GOVERNMENT, CANNOT, THEREFORE, BE OVER-EMPHASISED”
Introduction
Every successful democracy and institution must be founded on a working Constitution, which must regulate the legal system of the society and necessarily be the supreme law of the Land. The Nigerian society operates a written Constitutional system which is its grundnorm, and all other laws are premised on the Constitution, and as such, must never be inconsistent with the provisions of the Constitution.
It is therefore, on this basis of constitutional supremacy that the principles of separation of powers are grounded. To this end, the various organs of government enjoy a level of independence to such extent that no organ interferes with the powers of the other. The independence of the judiciary as a third organ of government, cannot, therefore, be over-emphasised.
Constitutional Provisions The Constitution of the Federal Republic of Nigeria, 1999, as amended, (“the Constitution”), makes provisions for the Judiciary in Chapter VII thereof. This Chapter also provides for the procedure for removal of any judicial officer.
Section 292 of the Constitution prescribes the mode for the removal of judicial officers. By virtue of Section 292(1)(a)(i) of the Constitution, for the heads of
Federal courts, the section prescribes that removal will be by the President of the Federal Republic of Nigeria acting on an address supported by two-third majority of the Senate. Section 292(1)(a)(ii) provides that for the heads of State Courts, removal is by the Governor of a State acting on an address by two-thirds majority of the House of Assembly.
By virtue of Section 292(1)(a)(i) and (ii) of the Constitution, the conditions under which the President/Governor can make such prayers for removal of a Head of Court are:
1. Inability of the judicial officer (Head of Court) to discharge the functions of his office or appointment;
2. The inability of the judicial officer (Head of Court) to perform the functions of his office or appointment (whether from infirmity of the mind or of body)
3. Misconduct of the judicial officer (Head of Court); or
4. The contravention of the code of conduct by the judicial officer (Head of Court).
A cursory look at the provisions of Section 292(1)(a) gives the impression that reference need not be had to the National Judicial Council (NJC), before a Judge is removed. This has been the precursor to various flamboyant executive intermeddling on the removal of Heads of Courts without first recourse to the NJC.
However, 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. This position has been held to be the rightful procedure for any removal of a Head of Court, in which case the Chief Judge of a State, in the case of HON. JUSTICE RALIAT ELELU-HABEEB & ANOR v THE HON. ATTORNEY GENERAL OF FEDERATION & ORS (2012) LPELR-SC. 281/2010; (2012) 13 NWLR Part 1318 page 423. In that case, the Supreme Court per Mohammed, J.S.C. held thus:
Although, it is true as argued by the learned senior Counsel to the Cross-Appellant, that the above Section 292(1) made no provision for the National Judicial Council to play any role in the removal of a Chief Judge of a State, the fact that the Council has a vital role to play in the appointment, removal and exercising control over a Chief Judge of a State under Section 271(1) of the Constitution and also under paragraph 21 of part 1 of the Third Schedule to the same Constitution, is not at all in doubt.
Furthermore, the conditions specified under Section 292(1) (a)(ii) of the Constitution, for the exercise of the power of removal must be satisfied before such power can be validly exercised by both the Governor and the House of Assembly.
This is because any exercise of power to remove a Chief Judge must be based on his:
1. Inability to discharge the functions of office or appointment; 2. The inability to perform the functions of his office could arise from infirmity of the mind or of body 3. For misconduct or 4. The contravention of the code of conduct. All these conditions or basis for the exercise of power to remove a State Chief Judge, must be investigated and confirmed by credible evidence and placed before the Governor and the House of Assembly before proceeding to exercise their power of removal granted by the Section of the Constitution. For example, the ground of removal for inability to perform the functions of his office or appointment, cannot be ascertained and confirmed by the Governor or the House of Assembly in the absence of any input from the National Judicial Council, under which supervision the Chief Judge discharges his functions as Judicial Officer, and which body also is directly responsible for exercising disciplinary control over the said State Chief Judge. It is not difficult to see that, for the effective exercise of the powers of removal of a Chief Judge of a State by the Governor and House of Assembly, the first port of call by the Governor on his journey to remove a Chief Judge of the State, shall be the National Judicial Council which is equipped with the personnel and resources to investigate the inability of the Chief Judge to discharge the functions of his office (the subject of disciplinary action of removal through the Committees of the Council), and where the infirmity of the mind or body is involved (the services of a medical board to examine and submit appropriate report on the Chief Judge to be affected) could also avail the Council in the process of investigation. It is for the foregoing reasons that I hold the view that, in the resolution of the issue at hand, the entire provisions of the 1999 Constitution in Sections 153(1)(i) (2), 271(1), 292(1) (a) (ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 dealing with the appointments, removal and exercise of disciplinary control over Judicial Officers, must be read, interpreted and applied together
in resolving the issue of whether or not the Governor of a State and the House of Assembly of a State can remove a Chief Judge of a State in Nigeria without any input of the National Judicial Council. This is because the combined effect of these provisions of the Constitution has revealed very clear intention of the framers of the Constitution to give the National Judicial Council a vital role to play in the appointment and removal of Judicial Officers by the Governors and Houses of Assembly of the State. In the result, I entirely agree with the two Courts below that having regard to these relevant provisions of the 1999 Constitution, the Governor of Kwara State and the House of Assembly of the State, cannot remove the Chief Judge of Kwara State from Office without the participation of the National Judicial Council in the exercise.
Unconstitutionality of the Removal of Abia CJ
Flowing from the above, the purported suspension of the Chief Judge of Abia State, Justice Theresa Uzokwe by the House of Assembly of the State on 26th January, 2018, without the prior recommendation or input of the NJC can at best be described as an exercise of legislative exuberance, and the consequent swearing in of Justice Obisike Orji as the Acting Chief Judge by the Executive Governor of the State, Governor Okezie Ikpeazu, was an act founded on unconstitutionality.
It is in this wise that the NJC, on 31st January, 2018, rightly declared the purported suspension of the Chief Judge, Justice Uzokwe, as unconstitutional, null and void, and the subsequent swearing in of Justice Orji as Acting Chief Judge, as invalid and unconstitutional, and further that such act was capable of raising potential questions of misconduct.
Conclusion
Thus, it will be safe to say that following the provisions of the Constitution by virtue of by the sections 6(2), 292(1a) and paragraph 21(c) (d) (f) Part 1of the Third Schedule to the Constitution, and the decision of the Supreme Court in the above cited case, the NJC is the only body, vested with the exclusive powers by law to exercise disciplinary control over Heads of Court (Chief Justices/Chief Judges) and other judicial officers and not by any token, the President or Governor of a State or House of Assembly of a State. The executive and legislative organs of government, do not have the power or authority to discipline, suspend, sack or remove a judicial officer unless upon prior recommendation by the NJC.