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The power tussle between Governor Chibuike Amaeachi of Rivers State and the National Judicial Council, over the appointment of a substantive chief judge for the state, has paralysed judicial activities in the state

|  By Olu Ojewale  |  Jun. 30, 2014 @ 01:00 GMT

RIVERS State, it appears, is gradually assuming a tinderbox status. The state which has, in the past few months, enmeshed in various controversies from grounding of governor’s jet to fights in the state’s House of Assembly, to an open conflict between the state governor and the president, is now embroiled in a battle over the appointment of its chief judge. For some time now, the state has been at loggerheads with the National Judicial Council, NJC, over who should be the right person to occupy the vacant seat of the chief judge of the state. Justice Peter Agumagu is the choice of the state governor, but the NJC disagrees and is insisting on the appointment of Justice Daisy Okocha, being the most senior judicial officer in the state.

The disagreement is, like the previous controversies, heating the polity in the state. A few days ago, there was a near breakdown of law and order as supporters of Governor Chibuike Amaechi took to streets in protest. The state judiciary, on its part, decided to go on strike to register its disgust against the unpalatable situation, thereby paralysing all forms of judicial functions in the state.

Supporters of Amaechi, on their part, took to the streets on Tuesday, June 10. As early as 6:00 am, the supporters launched a massive street protest over what they described as the “double standard and impunity” of the NJC, with members of the national and state assemblies, government officials and other eminent personalities involved. The protesters said to have been angered that Justice Okocha broke into the court complex on Tuesday, June 10, in spite of the current indefinite strike by members of the Judiciary Staff Union of Nigeria, JUSUN, Rivers State chapter, on the crisis in the state’s judiciary. As if to add insult to an injury, the NJC had instructed Justice Okocha to act as the administrative chief judge pending the resolution of the crisis. However, fully-armed and stern-looking policemen, prevented the protesters from moving close to the main gate of the high court complex, which was barricaded with two Toyota Hilux vans.

Quick intervention of the police was said to have stopped what could have become an ugly and violent situation. Clement Okonkwo, leader of the police team, politely told the protesters that they were at the gate to ensure peace and to prevent a breakdown of law and order.

However, the protesters were received at the Government House gate by some Rivers State National Assembly members and Oji Ngofa, state chairman of the Association of Local Governments of Nigeria, ALGON. Magnus Abe, a senator from the state, condemned the NJC for appointing Okocha as the acting CJ. Abe argued that the appointment of the state CJ was the constitutional responsibility of the governor. He alleged that the five anti-Amaechi lawmakers, namely Evans Bipi,  Kelechi Nwogu, Martin Amaewhule,  Victor Ihunwo and Michael Chinda as being the brain behind the move to impose Justice Okocha on the state in order to clear the way for Amaechi’s impeachment. He, however, vowed that the people would resist the plot. Ngofa, in his speech, said the state would not relinquish its right to appoint the CJ to any group or body. He warned those he called “Abuja politicians” against dragging the Judiciary into politics.

Governor Amaechi further stoked the already-burning fire on the issue when he accused the NJC of partiality and plan to impose Justice Okocha on the state. Speaking through Tony Okocha, his political adviser and chief of staff, in an address to the state on Wednesday, June 11, the governor accused the NJC of planning to force a chief justice on his state in order to impeach and remove him from office. Amaechi expressed disappointment on the attitude of the members of the NJC, whom he accused of taking sides. Okocha said: “The confusion in Rivers State judiciary is caused by the NJC and the powers that be (the Federal Government of Nigeria/President Goodluck Jonathan’s administration). The NJC is a body of eminent lawyers and judges/justices, with the Chief Justice of Nigeria, CJN, as its chairman. The CJN knows better. This one is trite in law. It is not subject to interpretation. Whose interest are members of the NJC serving?

“We also heard that their intention is to concoct a scenario where six Rivers State House of Assembly members will claim to have sat and impeached Governor Amaechi and hand over a paper to her (Justice Daisy Okocha) to set up a kangaroo panel and on the same day, a decision is reached that Governor Amaechi has been impeached, just to cause confusion and crisis in Rivers State.

“The crisis in the Rivers State Judiciary is, indeed, uncalled for. The law is clear. The person who has the powers to appoint the chief judge is certainly the governor of Rivers State. It is not about the governor of Rivers State; it is about the law.

“The Rivers State governor, Rt. Hon. Chibuike Rotimi Amaechi, has appointed a chief judge (Justice Peter Agumagu), but the NJC is interfering. To the extent that the person who was appointed was suspended by the NJC and the matter is in court. We heard that the NJC is appointing an administrative chief judge (Justice Daisy Okocha); that is not known to the law. The powers to appoint, no matter the nomenclature it is given, do not reside with the NJC. You can see the entire confusion.

“To make matters worse, we heard that the woman purportedly appointed by the NJC as administrative chief judge, went to the Rivers State high court, Port Harcourt, yesterday, (Tuesday June 10) and met with some judges. As a lawyer and a judge, she knows that it is a crime in the Nigerian law that you do not break and enter a premises, for whatever it is worth. That is why you saw millions of Rivers State people, who spontaneously came out to say there are no two governors in Rivers State. The Rivers State governor must be allowed to perform his functions, part of which he has done.”

To avoid a lacuna and get out of the cul-de-sac, the state assembly amended the Rivers State High Court Law 2001, empowering the chief registrar to assign cases to judges. The governor has since signed the amendment into law. The passage of the bill into law was done through voice vote by 17 members of the House at the plenary, presided over by Leyii Kwanee, deputy speaker. With Amaechi’s assent to the amended law, the chief registrar of the Rivers high court now has powers to assign cases to judges and carry out other administrative duties, in the absence of an acting or a substantive chief Judge.

But because of the fact that the post of a chief registrar is equivalent to that of a chief magistrate and as such lower than that of a high court judge, there is division in the state judiciary. The issue has also polarised and divided members of the Nigerian Bar Association, NBA, in the state. On Friday, June 13, members of the NBA, Port Harcourt, met till late in  the night and came out with a resolution that the body would challenge the new law in court as soon as the courts resumed after the indefinite strike. Dennis Okwakpan, chairman of the branch, in a press statement, said that the NBA members noted that the law was part of the effort to thwart the appointment of an administrative chief judge for the state by the NJC. “As far as the Nigerian Bar Association, Port Harcourt branch is concerned, it will not be practicable to carry-out that law. We have reached a conclusion that it is not a good law and we are condemning it. That is why we have also reached a decision to challenge it in court, because until we challenge it and reverse it, it is still a law. In the meantime, we have set up a committee to brief the House on the implications of this law. So, when the courts resume, we certainly will challenge it,” Okwakpan said.

He argued that if the law should be allowed, it would humiliate judges in the state who would be forced to take instructions from the chief registrar who, by his status, is their junior and not even a judicial officer. He said the NBA had been interfacing with the NJC and the state government on how to resolve the crisis. “We have discussed a couple of things and at the end that meeting, a few decisions were taken. The whole idea is how the state can move further and get out of the logjam in the state judiciary. The most notable decision that we took was basically to get approval from our members at this extra-ordinary general meeting to continue to engage all the authorities, the NJC and the Rivers State government, with the view to resolving the issue of appointing a substantive chief judge for the state. We also reviewed the Rivers State House Assembly decision to amend the high court law to vest power on the chief registrar of the high court to assume or carry out administrative duties and a few other things,” Okwakpan said. He also disclosed that the NBA was already in negotiation with members of the Judiciary workers to end their strike in the state.

But in a statement on Tuesday, June 17, Collins Obulur, NBA chairmen of Ahaoda; Joe Berebon, NBA chairman of Bori; Promise Iwezor, NBA chairman of Isiokpo and Oboye Ekine, NBA chairman Degema, dissociated themselves from the position of the Port Harcourt branch of the association and appealed to members to disregard its press statement  its plan to challenge the amended state High Court Law on the appointment of a chief judge in court.

“Our attention has been drawn to a recent press release issued by the Port Harcourt branch of the NBA to the effect that all the branches of the NBA in Rivers State condemn the amendment of the High Court Law in Rivers State recently passed by the state House of Assembly and assented to by the state governor and shall challenge same in a  court of law. We, the chairmen of Ahoada, Isiokpo, Bori and Degema branches of the NBA, on behalf of ourselves and our branches, hereby dissociate ourselves from the press release and decision as we did not meet and resolve to take that decision collectively,” the statement read.

The four NBA branches disclosed that a peace committee comprising the chairmen and the secretaries of five branches of the association led by Cyrus Nunieh, the oldest practising lawyer in the state, had been set up to resolve the crisis rocking the state’s judiciary. They, therefore, enjoined members of the public to exercise patience and await the resolution of the peace committee, cautioning that members of the association should desist from any act that could jeopardise efforts being made by the committee towards achieving a meaningful resolution.

Trouble started when the NJC suspended Agumagu from office as a judicial officer on March 18, 2014. The suspension followed after Justice Agumagu was sworn in as the chief judge, CJ, of Rivers State at the behest of Governor Amaechi.

Prior to the retirement of Iche Ndu, the erstwhile CJ of Rivers State, on August 20, 2013, the state Judicial Service Commission, JSC, initiated the process of appointing a successor by forwarding the names of two nominees namely Peter Agumagu, then president of the Customary court of appeal, and Daisy Okocha, the most senior high court judge to the NJC.

The council, after deliberation and by a letter dated July 22, 2013, communicated that Justice Okocha should be made the CJ because of her position as the most senior high court judge of the state at the time. Nonetheless, the governor of Rivers State, on August 20, 2013, swore in Justice Agumagu as the acting CJ.

But a group known as Kengena Unity Forum challenged the nomination before a federal high court in Port Harcourt and on February 18, 2014, the court nullified Agumagu’s appointment as the acting CJ and directed the state governor to comply with the relevant provisions of the 1999 Constitution. But by that time, Agumagu had served out the three-month period allowed by the constitution for an acting appointment, which expired on November 20, 2013.

Still bent on having his way, the governor wrote to the NJC on September 23, 2013, appealing to the council to review its decision in favour of Agumagu as the CJ, but the NJC stood its ground. This prompted Worgu Boms, attorney general of Rivers State, and the state JSC to file a suit before a federal high court in Port Harcourt, asking for a judicial interpretation of Section 271 of the Constitution relating to the appointment of a CJ, and also to determine whether or not Agumagu was the candidate to be recommended and forwarded by the NJC to the governor for appointment as CJ of Rivers State. Section 271 of the Nigerian constitution says: (1) The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.

(2) The appointment of a person to the office of a Judge of a High Court of a State shall be made by the Governor of the State acting on the recommendation of the National Judicial Council.

(3) A person shall not be qualified to hold office of a Judge of a High Court of a State unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years.

(4) If the office of the Chief Judge of a State is vacant, or if the person holding the office is, for any reason, unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the Governor of the State shall appoint the most senior Judge of the High Court to perform those functions.

(5) Except on the recommendation of the National Judicial Council an appointment pursuant to subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment and the Governor shall not re-appoint a person whose appointment has lapsed.

On March 18, this year, the court delivered judgment in favour of the state government. Pronto, the governor, on the same day the judgement was delivered, swore in Agumagu as the substantive CJ of Rivers State. The matter is on appeal.

A week later, on March 26, the NJC suspended Agumagu from office as a judicial officer, as well as issued him a query asking why he should not be dismissed, having allegedly contravened paragraph 21(d) of Part 1 of the Third Schedule to the Constitution. In reaching the decision, the NJC noted that due process was not followed in the swearing-in of Agumagu to office. Besides, the council noted that it did not, at any time, make any recommendation to the governor of Rivers State that Agumagu be appointed the substantive CJ of Rivers State. Hence, it resolved that it would neither recognise nor have any dealing with Agumagu as the CJ of Rivers State.

Under the constitution, four institutions are usually involved in the appointment of the CJ of a state, namely the JSC, the NJC, the state governor and the state House of Assembly. It is the duty of the state JSC to send a list of shortlisted candidates for the position of the CJ to the NJC. On receiving the list, the NJC scrutinises the recommended candidates by the JSC and thereafter, recommends the candidate selected to the governor for appointment as the CJ. The governor then appoints the CJ and sends the name of the appointed person to the state House of Assembly for confirmation and thereafter, the governor swears in the candidate in accordance with Section 271(1).

“The constitution contemplates a progressive, consensus-achieving process involving all the institutions involved in the appointment of a substantive CJ of a state. Section 271 (1) of the constitution can be construed to expect all parties to confer with each other until they come to an agreement on a candidate.

“Where this consensus is missing, negotiations must continue until an amicable agreement is reached. For example in Abia State, it took close to three years, (from 2011 to 2014) before a “consensus” substantive CJ was appointed for the state. During that period, the governor, with the NJC’s approval, appointed three judges of the high court to act as the CJ in turns,” Joseph Otteh, executive director, Access to Justice, wrote in a newspaper article on the judicial crisis in Rivers State.

Arguing further, Otteh said that Agumagu’s appointment as the substantive CJ of Rivers State was based on the judgment delivered by Justice Lambo Akanbi of the federal high court, in which the court answered all the questions put forward to it by the plaintiffs in their favour. In the federal high court judgement, the court declared that the governor had the right to reject the candidate recommended to him for appointment by the NJC and that Agumagu was a fit and proper nominee for the post of chief judge irrespective of which court he came from.

In addition, the court gave an order restraining the NJC from carrying into effect the decision and recommendation in its letter of July 22, 2013 or acting upon it in any way or manner detrimental to the interest of the state government “or acting in a way and manner suggesting an insistence on the candidate it recommended by its letter of July 22, 2013.” The NJC was said to have refused to recommend Agumagu on the basis that he was the president of the state’s customary court of appeal and not the most senior judge of the high court Bench of Rivers State. Hence, the NJC recommended Okocha instead of Agumagu.

Taking a critical look at the issue, Otteh analysed thus: “Did the ‘restraining order’ take away the constitutional power the NJC had to recommend a candidate to be appointed chief judge to the governor?  Clearly no! The court restrained the NJC from carrying into effect its decision that Justice Agumagu was ineligible to be considered for the position of chief judge and its recommendation of Justice Daisy Okocha for appointment into that position. The judgment did not make any consequential orders.

“Was the governor, by this judgment, entitled to appoint a chief judge without NJC’s recommendation? Again, clearly no! The most the judgment could have done is to trigger a fresh round of inter-agency communication on the subject, with the NJC obeying the court’s judgment not to insist on its interpretation of the constitution, at least until the order is set aside or stayed. The governor should have made representations to the NJC based on the judgment and given the NJC the opportunity to comply with the judgment before taking any further steps in the matter.”

Otteh noted that neither the governor nor Agumagu gave the NJC the opportunity to comply with the judgment before carrying out the swearing-in. He said further that in carrying out the appointment, the governor had ignored the mandatory constitutional stipulations governing the process, by undermining the role and powers of the NJC. “For a valid appointment to the office of CJ, no party conferred with constitutional duties in the process can be side-lined, least of all, the NJC. The NJC is key to both the appointment and disciplinary process of judicial officers as judicial decisions have reaffirmed. While the council may have floundered time and time again in the past, it got it right this time around. In the past, the council had acted as though it was a toothless bulldog, allowing state chief executives to ride rough-shod over its decisions, as it did in Enugu, Oyo and  Kwara states. The council’s efforts to defend its voice and mandate, and, ultimately, the independence and authority of the third arm of government is a welcome new dawn, and, finally, the council has summoned the courage to be what the constitution says it should be,” Access to Justice boss said further. In supporting the decision of the NJC, Otteh appealed to Agumagu to relinquish the office and allow for the course of justice to reign.

Holding a similar view is Osahon Ihenyen, a lawyer based in Rivers State. He noted that the NJC and the governor had a number of misgivings as to the interpretation of the relevant sections of the constitution. He pointed out that it had become apparent that there had been some misunderstanding as to the provision of the constitution regarding the appointment and recommendation of who becomes the CJ of Rivers State. “The misunderstanding is coming from the governor not knowing exactly what his powers are concerning the appointment of a chief judge. The State Judicial Service Commission, JSC, compiles a list that is sent to the NJC which would recommend one person in the list before the governor announces who the recommended chief judge is,” he said, adding: “However, the constitution, in what could be called a lacuna, states that the governor will appoint the CJ after the recommendation of the NJC. This aspect of the constitution is where the appointment of Justice Okocha is hinged, setting aside the recommendation of Justice Agumagu by the NJC.”

Ihenyen argued that if the governor had the power to appoint a CJ, there should not have been the need to forward the names of judges to the NJC for its recommendation. He, however, noted that “the mix-up came by the provision of the constitution” because the power of appointing who becomes the CJ of a state is not subject to the control of any person or institution.

But Worgu Boms, attorney-general of Rivers State, has disagreed with the stand of Otteh and Ihenyen. Speaking on a television interview on Monday, June15, Boms stated that the four institutions play a critical and equal role in the appointment of a state CJ, but insisted that the governor had been defined by the constitution as the appointing authority. “Nobody else appoints a chief judge except the governor,” he said.

He also disagreed with the reasons espoused by the NJC for not recommending Justice Agumagu as the CJ, insisting that no law has stated that to be a chief judge, one must be a judge. “Deciding to nominate the most senior judge is not constitutional. The reason given for not taking the first person on the list is not known to the law and the governor has absolute powers without reference to anybody to appoint a Chief Judge,” Boms said. The attorney-general, therefore, urged the NJC to obey court judgement which voided its recommendation and restrained it from acting in any way or manner suggesting an insistence of the candidate it recommended by its letter. “Going ahead to tell the person to perform functions is illegal and a disobedience of the law of the land,” he said.

Golden Aweh, another lawyer based in Port Harcourt, said the only way out of the logjam was for all the parties involved in the crisis to work together and not allow things to get out of hand. “The governor and the NJC must work together. The NJC, as a political body, must work with the governor of the state to maintain certain standards. The constitution makes it impossible to use arbitrary power to appoint the chief judge. The NJC has a role of making sure that certain standards are kept even if the governor is going to use political pressure; he cannot go beyond certain standards that are there. The governor cannot go outside the recommendation of the NJC and the state cannot do it alone. That is why they must work together,” Aweh said. He agreed that the appointment of the CJ could have been tainted with a dose of politics and that, according to him, should be expected. “You cannot run away from politics. Even the appointment of Supreme Court justices has political connotation and even in the United States there is political consideration in the appointment of justices. So, you cannot run away from politics but the best way to do it is through negotiation,” he admonished. Wale Okunade, a lawyer based in Lagos and a human rights activist, said it was apparent that political consideration had been the bane of the judicial crisis in Rivers State. “A man is a political animal. There is nothing we can do without politics. All the four institutions have a role to play in the appointment of the CJ and section 271 of the constitution has spelt it out for us, and when there is a lacuna, the governor has the power under section 271 sub section 4, to appoint the most senior person to act,” he said. He insisted that there was no room in the constitution for the CJN to appoint an administrative judge in the matter and asked the warring sides to take the path of honour to resolve the impasse. Okunade admonished all the parties involved in the conflict to read Isaiah 5:20, which says: “Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter.”

Martin Okoronkwo, a public commentator, said if the governor wanted to use the judiciary to score a political goal and for peace to reign, he should be allowed to have his way bearing in mind that he has less than one year to go. He said: “What Amaechi is doing is to sustain himself in office so that he is not impeached. Let him do what he wants to do until he leaves office next year. He only has a few months to go.” But those who don’t want Amaechi to have his way in this manner fear that he (the governor) would be setting a bad precedence that can be used as a yardstick for others. For now, the situation appears to be stalemated because no group appears to be willing to yield ground. But for how long will the common man continue to suffer as the two elephants fight on? That is a question which can only be answered by the two elephants.

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