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| Justice P.N.C Agumagu |
On Wednesday, 26th March, 2014, the National Judicial Council, a statutory body established for the promotion of judicial standards and oversight of the justice administration complex of Nigeria – based on the rule of law and the Constitution of Nigeria – convened an emergency meeting to principally discuss the recent appointment, confirmation and swearing in of a new substantive Chief Judge for Rivers State – Justice P.N.C Agumagu, by the Governor of the State, Chibuike Rotimi Amaechi and the State House of Assembly, respectively as prescribed by the Constitution.
Arising from that meeting, the NJC which is headed by the Chief Justice of the Supreme Court issued a statement through its spokesperson, Mr. Soji Oye ‘suspending’ the new Chief Judge with immediate effect. In addition, the NJC announced its issuance of a query to Justice Agumagu “to explain in writing within four days why he should not be removed from office as a judicial officer for his failure to abide by his Oath of Office to uphold the Constitution and Laws of the Federal Republic of Nigeria”. The sum of the offence of the new Chief Judge according to the NJC statement was that he – a qualified candidate, being a distinguished jurist and former President of the State’s Customary Court of Appeal – allowed himself to be nominated, appointed and confirmed as the Chief Judge of the State in a process that substantially complied with constitutional requirements in spite of the efforts of the NJC in the reverse direction. Specifically, the NJC seeks to punish Justice Agumagu for being the beneficiary of a legal outcome arising out of a communication between the NJC and the Governor of Rivers State – a recommendation which details the judge is not legally required to know.
The well reported action of the NJC coming on the heels of various misadventures from several statutory bodies – the Ministry of Aviation, Nigerian Civil Aviation Authority, the Central Bank, the Nigerian National Petroleum Corporation, NNPC, the Financial Reporting Council, the Nigerian Police – is worrisome especially as it was clearly preventable being a hurried but unnecessary overreach of the powers and core mandates of the NJC – especially within the peculiar facts and circumstances of the appointment.
In understanding the Rivers-State-appointment-of-a-Chief-Judge debacle, two separate and distinguishable set of facts or events are important. The first is the already judicially quashed appointment of the President of the State’s Customary Court of Appeal – the same Justice P.N.C Agumagu as the acting Chief Judge for the State on the retirement of the former Chief Judge, Justice Iche Ndu. That appointment quickly became contentious. The Constitution in Section 271 (4) (5) requires that only the most senior Judge of the High Court of the State may be so appointed to serve for a maximum period of 3 months pending the formal appointment of a substantive Chief Judge. While the Nigerian Bar Association and several other justice sector stakeholders contended that the honour belonged to Justice Daisy Okocha, the most senior serving judge of the State High Court, the State Government asserted that Justice Agumagu’s choice was valid as he was not only the most senior serving judge in the entire Rivers State judiciary but had also been appointed as a High Court judge before being seconded to the State’s Customary Court of Appeal to help in establishing it –implying that he was at all material time a High Court Judge. However, an application to the Federal High Court by the Kengena Unity Forum, led by Boma Goodhead and Ajenyanate Samuel put the whole matter to rest as the Court through Justice Lambo Akanbi declared on February 19, 2014 that the appointment was wrongful since, in its view, Justice Agumagu was not a serving High Court Judge at the material time in which the appointment was made.
The second set of events concerned the consequent appointment of a substantive Chief Judge which was expected to effectively resolve the whole crisis. As required under Section 270 and paragraph C (6) Part II, Third Schedule of the Constitution, the Rivers State Judicial Council commenced the process by nominating the two most senior judges in the State’s judiciary – Justice Agumagu and Justice Daisy Okocha – to the National Judicial Council for consideration so that the latter can make its recommendation to the Governor of the State as required under Section 271 (1) and paragraph (I) 21 (c), Part I, Third Schedule of the Constitution.
However, in a seeming display of insensitivity or lack of appreciation for the political dimension of the process – especially in the light of prior events, the NJC presented the Governor with a recommendation which was to all intent and purposes an attempt to deny the Governor of any scintilla of choice as to who becomes the next Chief Judge of the State. That is, the NJC delisted Justice Agumagu’s name as a candidate and presented only Justice Daisy Okocha as its sole recommendation for the coveted position.
In response, the State Governor requested the NJC to do the needful: to provide him with a recommendation which allowed room for his exercise of the constitutional privilege of appointing a Chief Judge for the State from a peer-reviewed list of qualified candidates subject to the confirmation of the State House of Assembly. The NJC did not oblige him. And to his credit, he took the further step of approaching the Federal High Court which – through Justice Akanbi Lambo, the same judge that quashed the Governor’s earlier appointment of an Acting Chief Judge, declared in clear terms that the NJC’s so-called recommendation was wrongful as it fell below minimum common sense and constitutional requirements. In his words, the “governor is not a rubber stamp governor. The role of NJC is advisory; the governor has the right to accept or not; he is not a rubber stamp governor.”
Armed with the judgment, the original advice of the Rivers State Judicial Service Commission to the NJC – nominating the two distinguished judges – and of course, the ‘recommendation’ of the NJC, the stage was set for another invocation of the doctrine of substantial justice so as to fill an already existing vacuum occasioned by the judicial invalidation of the earlier appointment of an Acting Chief Judge. Accordingly, the Governor chose and appointed Justice Agumagu – who was subsequently sworn in after receiving the constitutionally required confirmation of the State House of Assembly.
In the light of what was an effective outfoxing of a judicial body which delved into the intrigues rich realm of politics against veteran politicians and in response has resorted to bad loser antics which portend nothing but further crisis and embarrassment for Nigeria’s judiciary, it has become necessary to look at five things this present corps of NJC membership could have done differently:
FAILURE TO BE PROACTIVE
It is an endemic failure often associated with Nigerian public institutions, but it looks particularly agonizing when committed by a judicial body of NJC’s standing. The NJC has no business sitting on its hands during the last 12 months of the tenure of a sitting Chief Judge. Without suggesting that the NJC should become a lobbying platform, there are many legitimate but proactive actions it could take quietly and in a dignified manner to ensure that crisis in any level or institution of the judiciary is averted because of unnecessary succession wrangling. It is certainly possible for the NJC through the revered office of its Chairman and Chief Justice of Nigeria to formally and informally resolve, quietly, the issue of who-is-next-in-line-as-acting-Chief-Judge with the Judicial Commission and Attorney General of any concerned State as quickly as circumstances allow or demand. It is certainly possible for the NJC to devise a process that ensures that the Judicial Commission of any relevant State forwards to it, lists of proposed candidates for consideration as Chief Judge within a period that ensures that an affected state Governor can receive NJC’s recommendation even before the incumbent Chief Judge retires. The idea of an Acting Chief Judge has no business not beong the exception to the rule restricted to the happening of rare events like a sitting Chief Judge dying or being removed before his tenure is up.
FAILURE TO WRITE A WINNING RECOMMENDATION
The Constitution requires the NJC – on receiving the advice of the State’s Judicial Service Commission – to make a recommendation to that State’s Governor towards the appointment of a substantive new Chief Judge of a State. Judging from NJC’s recommendation to the Governor of Rivers State and the NJC’s reaction to the rejection of its recommendation, the revered body and its distinguished members clearly require lessons on how to write winning recommendations adjusted to differing circumstances which addresses relevant issues – political and judicial. Clearly, expertise in the development of judicial rhetoric is a whole world removed from the type of communication skills required to impress a sitting Governor to voluntarily abandon his preferred candidate in deference to recommendation of the NJC. There seems to be a poor realization that appointment of a Chief Judge – from Nigeria to the United States – is a political action designed in Nigeria to benefit from sound judicial guidance where available. Judging from their actions and utterances so far, the current corps of NJC membership seems to presume operative definition of the word ‘recommendation’ as used in the Constitution to mean NJC’s ‘legal directive’ to the Governor. No wonder, very little attention was paid to developing and addressing key issues in the recommendation to the Governor which would have made the final product a persuasive and winning one.
FAILURE TO DISCONNECT TWO DIFFERENT EVENTS: APOINTMENT OF ACTING CHIEF JUDGE AND SUBSTATIVE CHIEF JUDGE
The third failure obviously flows from the first two. There can be no disputing tnat the NJC’s rejected ‘recommendation’ was an attempt to ‘punish’ the government of Rivers State for appointing a President of the Customary Court of Appeal as Acting Judge instead of the highest ranking serving Judge of the High Court. The problem with that is, of course, that the NJC has no legal mandates to hold or bear grudges on behalf of the judiciary or People of Nigeria; or to punish political office holders through spite-driven exercise of its constitutional responsibility to ‘recommend’; or even to punish or discriminate against a qualified judicial officer and candidate for the post of the Chief Judge simply because he or she accepted to serve in a high judicial office through a process that became subsequently contentious as to its validity arising from acts or inactions that had nothing to do with the Judge. Under basic principles of evidence, the probative value of the earlier event would have been, on various grounds, insignificant indeed – if admissible at all – as the 3 relevant questions at all material times were: was Justice Agumagu qualified to be considered as Chief Judge of Rivers State; Had he been nominated as such to the NJC by the Rivers State Judicial Commission and does the NJC have any power to delist his name as a candidate without reasonable justification?.
Truth: the NJC had absolutely no business allowing itself to be influenced by the earlier event as to the appointment of an Acting Chief Judge of Rivers State. This is especially so as the NJC was assigned no active role by the Constitution or any other law of Nigeria as to the emergence of an Acting Chief Judge of a State: a process which the Constitution designed to be almost automatic once the most senior judge of the High Court is ascertained and presented to the Governor for formal appointment and swearing in. Regardless, the matter of the appointment of an Acting Chief Judge for Rivers State having been settled by a court of competent jurisdiction which quashed the appointment, there was clearly no purpose in invoking prejudices or grudges arising from that earlier event in dealing with a subsequent opportunity to restore order and unity to the State’s judiciary through a well considered recommendation rich with various options, the adoption of any of which would have been a win-win for the Nigerian judiciary.
FAILURE TO ERR ON THE SIDE OF LEGALITY AND THE CONSTITUTION
In making its recommendation to the Governor and the subsequent suspension and threatening of the new Chief Judge with dismissal for alleged breach of his oath of office and the Constitution, the NJC displayed a worrisome disposition to go to battle with its flank terribly exposed legally. First, it displayed an outright contempt for the wisdom of the State Judicial Service Commission by making a final recommendation which destroyed the attempt at circumspection and sensitivity showcased by its state counterpart. It also tried to negatively preempt the constitutionally guaranteed role of a sitting Governor of a State by giving him a recommendation which had no options or room for him to be anything other than a rubber stamp. Above all, with an option to approach (its) Courts to pronounce on the legality of the appointment, the NJC showcased what is fast becoming a trademark readiness to usurp the functions of the Court of Nigeria or to prejudice judicial outcome through its actions – at the earliest opportunity. It needs to be said that no institution or group of persons harms justice administration in Nigeria as much as the specter of the NJC resorting to self-help, usurping clear functions of courts/elected officers of Nigeria, prejudicing matters already on appeal or creating intrigue-rich situations which escalate already costly crisis in the judiciary where matured and well-considered measures to resolve the crisis is direly needed.
FAILURE TO APPRECIATE THAT ITS EXAMPLES ARE MORE POWERFUL THAN ITS POWERS
Probably, this could be tagged as the cardinal sin of the NJC: the regular disposition to showcase its ‘vast’ and ‘great’ powers – even in situations where an ability to show humility, restraint and discretion, no matter the level and degree of provocation would have been more appropriate. For the sake of my generation and that of my children, the NJC needs to be told that it cannot afford to respond the same way ‘others’ – politicians, technocrats or even courts – respond. Right thinking Nigerians do not expect it to get down in the trenches with politicians or judges of the court. The NJC should not be the forum to undermine State judicial service commissions or sitting and senior judges of the Nigerian judiciary who have done nothing more than accept to serve in a capacity that is the dream of every single one of their peers. Neither should the NJC lend itself to being perceived as a tool for the advancement of the agenda of any level or arm of government against another level of arm – or the career of any judge against that of another. Whenever- like in the present case, where its ‘recommended and sole choice’ for Chief Judge is the sister of one of its senior members, OCJ Okocha, SAN, -the likelihood of bias is a reasonable charge against the NJC, it must be seen to demonstrate a level of sensitivity, maturity and wisdom that should be an example for all institutions and persons in Nigeria to copy. That it missed out this opportunity – again – is very unfortunate as the NJC is expected, at all times, to reflect the combined wisdom of all that is good and noble about justice administration in Nigerian through the instrumentality of the Nigerian judiciary. The misplaced fear of the NJC ever becoming a toothless bulldog if it does ‘bark and bite’ cannot but be a misnomer for the simple fact that the metaphor is a poor one: the NJC could never be a dog. It is at all times the Master of the dog – and not even the capacity to refuse to bark or bite reduces its stature as such: it actually enhances its master-stature as it merely gives the real dogs the opportunity to be true in bite and bark for the purposes of the master. Who needs to bark and bite when it can simply influence behaviour o its advantage through mature exhibition of its intellectual, nuclear and strategic capabilities.
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