Legal Issues Arising from Justice Oloyede’s Petition against Governor Rauf Aregbesola
It is no longer news that a serving Judge of the Osun State Judiciary—Justice Oloyede Folahanmi wrote a 39-page petition against Governor Rauf Aregbesola and this petition was forwarded to the Osun State House of Assembly for investigation. In the said petition, Justice Folahanmi made several allegations ranging from financial recklessness, embezzlement and mismanagement of the State’s economy against Governor Aregbesola. Her Ladyship concluded the petition by inviting the Osun State House of Assembly to commence impeachment proceedings against Aregbesola.
Since her Ladyship’s petition went viral, several commentators and learned jurists have given their opinion or verdict on the legality of her Ladyship’s action in writing a petition against “her appointer and the head of the Executive Branch of Government”. Whilst some commentators are of the view that her Ladyship’s petition is a welcome development, which would help to promote financial accountability on the part of the Governor of Osun State, others have opined that her Ladyship’s action in writing the petition is an exhibition of ignorance on the procedure for impeaching a Governor of a State and it also amounts to a breach of the Code of Conduct for Judicial Officers in Nigeria, as her Ladyship did not act with decorum in writing the petition.
The Osun State House of Assembly has since “investigated” her Ladyship’s petition and dismissed same for lacking in merit. The Assembly further held that her Ladyship abandoned her petition by refusing to appear before the investigative committee and that her Ladyship’s petition was based on rumours and hearsay. The Assembly consequently recommended that her Ladyship be sanctioned through the State Judicial Service Commission.
The foregoing background has brought about a number of fundamental issues, which I intend to address in this paper. These issues are:
1. Does a serving Judge have the right to freedom of expression?
2. Is the petition, which was written by Justice Folahanmi an illegal document?
3. Does the writing of the petition by Justice Folahanmi amount to a breach of the Code of Conduct for Judicial Officers?
4. Did the Osun State House of Assembly act reasonably when it dismissed the petition and recommended the sanctioning of Justice Folahanmi by the Osun State Judicial Service Comission?
Does a serving Judge have the right to freedom of expression?
Section 39 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” Section 39 (3) (b) however goes further to circumscribe the general right of certain categories of persons to freedom of expression by providing thus:
“(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society(a)… (b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.”
The implication of a combined reading of section 39 (1) and (3) (b) of the Constitution is that, although every person (including a serving Judge) has a right to freedom of expression, the right of a serving Judge to freedom of expression can be circumscribed by any law, given the special position of a Judge as an officer of the Government of the Federation or of a State.
Rule 3 (B) (ii) of the Code of Conduct for Judicial Officers provides the extent to which the right to freedom of expression of a Judge can be limited and it provides thus:
“In accordance with the fundamental rights enshrined in the Constitution, a Judicial Officer is like other citizens entitled to freedom of expression, belief, association and assembly, Provided, however, that in exercising such rights, he shall always conduct himself in such a manner as to preserve the dignity of his office and the impartiality and independence of the judiciary.”
A literal interpretation of the rule stated above would show clearly that a serving Judge has the right to freedom of expression as long as the right is exercised in a manner, which preserves the dignity of his office and the impartiality and independence of the judiciary.
Is the petition, which was written by Justice Oloyede an illegal document?
In a press statement captioned, “The Illegality of Aregbesola’s Impeachment Petition”, which was jointly issued by Professor Itse Sagay, SAN and Chief Mrs. ‘Folake Solanke, SAN (“the learned jurists”) on 6th August 2015, the learned jurists stated that it was wrong for Justice Oloyede to have written the petition since she was neither a member of the Osun State House of Assembly nor a member of a Civil Society Organisation. The learned jurists stated further that the petition was an illegal document and it ought to have been disregarded with contempt by the Osun State House of Assembly.
I respectfully disagree with the opinion of the learned jurists that the petition is an illegal document, which ought to have been disregarded with contempt by the Osun State House of Assembly. I also disagree with their opinion calling for the punishment of Justice Folahanmi Oloyese by the National Judicial Council. This is because section 128 of the 1999 constitution gives the State House of Assembly the powers to conduct an investigation into any matter with respect to which it has the power to make laws.
Therefore, since the fulcrum of Justice Oloyede’s petition relates to the alleged mismanagement of the resources of Osun State by Governor Aregbesola, it goes without saying that the Osun State House of Assembly had a legitimate basis to investigate the said petition since they have the constitutional powers to enact laws on the appropriation and management of Osun State’s resources.
It is instructive to note also that the 1999 constitution of Nigeria does contain an exhaustive list or any list of the category of persons who can write a petition to a State’s House of Assembly. Thus, it is submitted that a serving Judge can write a petition to a State’s House of Assembly since the 1999 constitution does not prohibit a Judge from doing so. I am strengthened in this position by the decision of the Supreme Court in the case of A.G. ONDO STATE v A.G. EKITI (2001) 17 NWLR (Pt. 743) 706 at 770 Para A, where Karibi Whyte, JSC held thus:
“It is important to bear in mind the elementary and fundamental principle of law that what has not been prohibited is allowed.”
In sum, it is submitted that Justice Folahanmi was on a strong legal footing when her Ladyship wrote the petition, as neither the 1999 Constitution of Nigeria nor the Code of Conduct for Judicial Officers prohibits the writing of a petition by a serving Judge.
Does the writing of the petition by Justice Folahanmi amount to a breach of the Code of Conduct for Judicial Officers?
As discussed above, the Code of Conduct for Judicial Officers provides that a Judge has the right to freedom of expression as long as the right is exercised in a manner, which preserves the dignity of his office and the impartiality and independence of the judiciary.
It is submitted that Justice Oloyede’s action in writing a petition against Governor Aregbesola does not amount to a breach of the Code of Conduct for Judicial Officers. This is because Justice Oloyede stated clearly in her petition that she had tried unsuccessfully to make a private complaint to Governor Aregbesola before she was constrained to write the petition. Justice Oloyede stated as follows in her petition:
“Although, Mr. Governor had initially agreed to grant me audience, after I impressed upon him the urgency of my mission, regrettably later, he reneged on his promise, thereby making the publication of my petition, without first bringing it to his notice privately unavoidable.”
In addition to the above, it is submitted that the petition does not in anyway affect the dignity, impartiality and independence of the judiciary, as some of the issues, which were raised in the petition would help to strengthen the judiciary and delivery of justice in Osun State. It is telling that some of the issues, which were raised in the petition, are refusal to pay Judges and magistrates their housing and medical allowances, refusal to give Judges and magistrates serviceable official vehicles and the closure of the courts in Osun State for about 6 months.
Did the Osun State House of Assembly act reasonably when it dismissed the petition and recommended the sanctioning of Justice Folahanmi by the Osun State Judicial Service Comission?
It is submitted that the Osun State House of Assembly acted unreasonably and confirmed its status as a rubber stamp of the Governor Aregbesola when it refused to furnish Justice Oloyede with a copy of Governor Aregbesola’s response to her Ladyship’s petition. This is because the refusal of the House of Assembly to provide Justice Oloyede with Aregbesola’s response amounts to a breach of Justice Oloyede’s right to fair hearing.
Given that Mr. Akintunde Adegboye, the Chairman of the Osun State House of Assembly’s investigative committee, which was saddled with the responsibility of investigating the petition, is a Legal Practitioner, one would have expected him to educate the other members of his committee that once a petition is submitted, the petitioner has a right to be served with the response to her petition so she can prepare a rejoinder if the need arises. This is the procedure for determining an application before a court of law and before any serious panel, and it is therefore curious that the Osun State House of Assembly elected not to follow this procedure.
In addition, since we are now in an era where citizens are demanding open access in the running of government and accountability from public office holders, one would have expected either Governor Aregbesola or the Osun State House Assembly to have made the Governor’s response to the petition public since doing so would be in accordance with good conscience, commonsense and fair hearing.
Conclusion I am of the view that Justice Oloyede ought to be commended for her courage in writing the petition against Governor Aregbesola, as her action shows that she has placed the interest of the masses in Osun State above her personal interest.
The action of the Osun State House of Assembly in dismissing the petition without engaging on a thorough investigation of the issues raised in the petition has set a bad precedent in the Osun State House of Assembly.
Abbas, MCIArb (UK), is a Legal Practitioner