Nigeria: Suspension of Onnoghen, removal of judicial officers and the Constitution

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By

Gabriel Omoniyi

Introduction

The judiciary as the third arm of the government and a party to the checkmating process of government in Nigeria and other democratic institutions in the world for adequate and quality governance has a more stringent way of appointment and removal of its officials. Though, not an elective position like the others-legislative and the executive, the role it plays in ensuring sustainable development and justice delivery cannot be sidelined. It is commonly believed that a corrupt judiciary will lead to a doomed society.

In Nigeria as a country, appointments of those officials are not only rigorous to ensure competence but also to serve a means of checkmating each arm of government. For some officials, most especially the Justices of the Supreme Court and other heads of the courts in Nigeria are appointed by the president who is acting on the recommendation of the National Judicial Council with the approval of the Senate.

However, the recent suspension of the Chief Justice of Nigeria and subsequent appointment of Justice Tanko Mohammed as the Acting Chief Justice is strange to the sphere of the legal world. This paper tends to look at the appointment and removal of the Judges under the Constitution, vis-a-vis the suspension and the removal of the ex-Chief Justice of Nigeria.

Appointment of Judicial Officers

The judiciary being an arm of government created by the Constitution is also governed by the constitution on the appointment of its officials just like the executive and legislative. Thus, the appointment is constitutionally-backed.

By virtue of Section 1 of the Constitution, the supremacy of the constitution is firmly established as it violates to the extent of its inconsistency any law or enacted those conflicts with the Constitution. The appointments of judicial officers of superior courts are provided for in Chapter VII of the constitution.

For the Supreme Court, there are not more than 21 judges who must be legal practitioners with at least 15 years post-call experience and the appointment is made by the President on the recommendation of the National Judicial Council subject to the approval of the Senate. For other heads of court, appointment is same with that of the Justices of the Supreme Court with varying requisite age of post-call.

For other justices of the Court of Appeal and other judges of the superior courts, appointment is only made by the President or Governor where applicable with the recommendation of the National Judicial Council.

Removal of Judicial Officers

The procedure for the removal of judicial officers in the superior courts follows almost same procedure for the appointment of judicial officials. Section 292 of the Constitution provides for the procedure of removal of judicial officials under two headings; one of which is to have the heads of the court in Nigeria removed by the President (or Governor as the case may be) supported by an address supported by two-thirds of the Senate (or House of Assembly where applicable). The heads of the courts in the State are removed by the Governor based on the recommendation of the National Judicial Council supported by two-third majority of the House of Assembly based on the ground of inability to discharge the functions of his office or appointment arising from infirmity of mind or the body or for misconduct or contravention of the Code of Conduct. The other way is to have the judicial officials removed by the President on the recommendation of the National Judicial Council for his inability to discharge the functions of his office or appointment which arises from infirmity of mind or of the body or for misconduct or contravention of the Code of Conduct.

The role of the Council was clearly explained in the Constitution, precisely Paragraph 21 of Part 1 of the Third Schedule which includes the power of the Commission to recommend the removal of the Chief Justice of Nigeria.

However, the case of Elelulu-Habeeb & Anor v. AGF and Ors (2012) LPELR-SC.281/2010 has interpreted Section 292(1)(a) of the Constitution to include the recommendation of the National Judicial Council in the removal of heads of court.

History of Removal of Judges in Nigeria

The role of National Judicial Council has been key and fundamental to the removal of judges of the superior courts in Nigeria. In 2018, the NJC sanctioned Hon Justice Obisike Orji for not following the tenet of the law and allowing himself to be sworn as the Chief Judge of Abia State. Justice Jubril Aladejana of Ekiti State High Court was handed same punishment of compulsory retirement by the Council for being allowed to be sworn in as the Acting Chief Judge. Similarly, in 2014, Justice Peter Agumagu, a Justice of the Customary Court of Appeal was handed similar punishment for offering himself to be sworn in as the Acting Chief Judge of Rivers State.

In the Kwara State, Justice Elelulu-Habeeb was removed without the concurrent input of the Council and it was held that such removal was contrary to the provision of the Constitution.

Onnoghen’s saga: A new issue arising

The ex-Chief Justice of Nigeria, Justice Walter Onnoghen was confirmed on the 1st day of March, 2019 as the Chief Justice of Nigeria (CJN). However, on the 25th day of January, 2019, there was a suspension based on an allegation of false declaration of his assets. In a swift response, the President ordered that the ex-CJN be suspended immediately as the Chief Justice of Nigeria and appointed Justice Tanko Mohammed as the Acting Chief Justice of Nigeria.

Between Suspension, Removal and the Constitution

The word ‘suspension’ has been defined by the Advanced English Dictionary as “a time interval during which there is a temporary cessation of something.” Similarly, the word ‘removal’ has also been defined to mean dismissal from office.

However, by virtue of Section 292(1), it provides expressly thus;

‘(1) A judicial officer shall not be from his office or appointment before his age of retirement except in the following circumstances;

(a) In the case of

(i) Chief Justice of Nigeria… by the President acting on the address supported by two-thirds majority of the Senate …

(b) In any case, other than those to which Paragraph (a) of this subsection applies, by the President or, as the case may be. The Governor acting on the recommendation of the National Judicial Council that the judicial officer 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 above provision is unambiguous and thus need be given its literal interpretation. But does Section 292 intend suspension? The end result of suspension no matter how couched it is, is to prevent an occupier of an office from been able to perform the work he is assigned to do. The question remains if the President has justifiable power(s) derivative from anywhere to suspend a judicial officer? From the definition of suspension above, to imply suspension is inconsistent with the spirit of the law and the intention of the draftsman. One could infer that the essence of the long list of protocols and procedure for the appointment and removal of the judicial officers under Chapter VII of the Constitution is to grant transparency and independence of the Judiciary.

Assuming without conceding that Section 292 infers suspension, then it need be interpreted in light of the provision of Section 292(1)(a) and as such the procedure must be fully conceded to. That is, the recommendation of the National Judicial Council must be sought and where the judicial officer is a head of the court, the address of the Senate and House of Assembly (where applicable) must be sought.

Saddening as it is, the President has arrogated power to himself by acting under Section 231(4) of the Constitution on the appointment of an Acting Chief Justice of the Federation on the ground that the seat of the Chief Justice of Nigeria is vacant. Interpreting Section 231(4) of the Constitution contextually, the intention of the draftsman is not by sheer act of suspension but in such situations like in the case of death or some other instance where the seat is empty and the National Judicial Council is yet to conclude on the nomination of a suitable candidate for the position, it is until than that the President could now appoint an Acting Chief Justice of Nigeria to act in the place of the Chief Justice.

Even in the case of misconduct or contravention of the Code of Conduct by a judicial officer (which includes the Chief Justice of Nigeria), removal is allowed provided that the laid down procedure (on the recommendation of the National Judicial Council) is followed.

From where hence is the President acting? This is a question that remains unanswered considering the provisions of the grundnorm providing the guidelines for administration in Nigeria.

Conclusion

The suspension of the President is largely unconstitutional and cannot be supported or justified by the provision of the constitution of Nigeria and as such need be declared void. Now, the suspended Chief Justice of Nigeria has retired voluntarily but the illegality of the suspension of the ex-CJN is still an eyesore in the face of the law. Whether the President is guilty of nepotism or is stamping out corruption is not a riddle that should be left for the polity to solve. The path of illegality should not be emphasised nor the foundation laid as though there is no justification for illegality, the single brick of illegality laid now will have a great problem for the years ahead of a nation that need a viable and transparent judiciary for effective administration of justice without the fear of any in transforming the nation.

Gabriel Omoniyi

Gabriel Omoniyi is a graduate of Law from Ekiti State University, Ado-Ekiti and currently in Nigerian Law School, Lagos campus. His area of interest are Corporate Law and Practice, Cyber Law and Litigation.