KSHA Recommendation On CJ: Suicidal Constitutional Iniquity, Insubordination – J.S. Okutepa SAN

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Today I read on social media that Kogi State House of Assembly passed a resolution recommending to the State governor the removal of the Hon Chief Judge of the state, Hon Mr Justice  Nasir N. Ajanah. 

For the fact that today is not 1st day of April, I was initially tempted to regard the news as one of those fake and April fool stories. But upon further inquiry I came to realize that the news may not be fake after all. 

But wait a minute did the Kogi State House of Assembly seek legal advice before embarking on this suicidal constitutional iniquity and insubordination.

I do not think so. For if it did, it could have been properly guided. On the 17th of February 2012, the Supreme Court of Nigeria settled the point that no state House of Assembly and governor can remove the CJ of the state without going through NJC.

This is what the supreme court said:
What is relevant for determination of this issue is to fish out and examine the powers of the National Judicial Council in Paragraph 21 of Part 1 of the Third Schedule to the Constitution which reads-
“21. The National Judicial Council shall have power to –
(a) recommend to the President from among the list of persons submitted to it by
(i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria…
(ii) xxx

(b) recommend to the President the removal from office of the Judicial Officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers.

(c) recommend to the Governor from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointment to the offices of the Chief Judges of the States and Judge of the High Courts of States, the Grand Kadis and Kadis of the Sharia Court of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States.

(d) recommend to the Governors the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.”

It is quite plain from the provisions of Paragraph 21 sub-paragraphs (c) and (d) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999, that the National Judicial Council is the body that had been assigned the duty and responsibility of recommending to the Governors of the States of the Federation suitable persons for appointments to the offices of Chief Judges of the States and other Judicial Officers in the States. In addition to its role in the appointment of Chief Judges of the States and other Judicial Officers, the same National Judicial Council is also
empowered under Sub-paragraph (d) of Paragraph 21 to recommend to the Governors of the States the removal from office of the Chief Judges of the States and other Judicial Officers of the States and also to exercise disciplinary control over such Chief Judges of the States and other Judicial Officers of the States. Therefore, from these very clear provisions of the Constitution which are very far-from being ambiguous, the Governors of the States and the Houses of Assembly of the States cannot exercise disciplinary control touching the removal of Chief Judges of States or other Judicial Officers in the States.

Please see the case of HON. JUSTICE RALIAT ELELU-HABEEB & ANOR V. THE HON. ATTORNEY GENERAL OF THE FEDERATION & ORS(2012)LPELR-15515(SC)  at 68-70 as per Mohammed JSC as he then was and later CJN.It is clear from the decision above that if the Kogi state house of assembly has sought guidance it should have spared the state of the decision it took.

kogi state should avoid being constantly in bad news for bad reasons. There is no doubt that the NJC has been given powers in appointment and removal of CJ of the States. The Supreme Court dealt with this point in the most admirable fashion thus:

Going back to Section 271(1) of the 1999 Constitution, it is also glaringly clear that the National Judicial Council has been given a role to play in the appointment of Chief Judges of the States where the Section states –

“271(1) The appointment of a person to the office of a Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to the confirmation of the appointment by the House of Assembly of the State.

It can be seen here again, although the Governor of a State has been vested with the power to appoint the Chief Judge of his own State, that power is not absolute as the Governor has to share the power with the National Judicial Council in recommending suitable persons and the State House of Assembly in confirming the appointment.

It is in the spirit of the Constitution in ensuring checks and balances between the Three Arms of Government that the role of the Governor in appointing and exercising disciplinary control over the Chief Judge of his State is subjected to the participation of the National Judicial Council and the House of Assembly of the State in the exercise to ensure transparency and observance of the rule of law.

The Cross-Appellant has made heavy weather on the interpretation and application of Section 292(1(a)(ii) of the 1999 Constitution which is said to have conferred unfettered powers on the Governor of Kwara State and the House of Assembly of Kwara State to remove the Chief Judge of Kwara State from office on an allegation of misconduct. The relevant Section of the Constitution states:-“292(1) A Judicial Officer shall not be removed from office or appointment before his age of retirement except in the following circumstances:-
(a.) In case of-
(i.) The Chief Justice of Nigeria
(ii) The Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on the address supported by two-thirds majority of the House of Assembly of the State, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the code of conduct.”

The provisions of Section 292(1(a)(ii) of the Constitution above also deals with the power of the Governor to remove the Chief Judge of a State in conjunction with the House of Assembly of the State. 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 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.




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