The constitutional process for the impeachment of a governor by the state House of Assembly is tortuous. In this article a lawyer AHURAKA YUSUF ISAH writes on how a state Chief Judge can navigate the murdy waters.
By virtue of Section 271 (1) of the 1999 Constitution ‘’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 (NJC) subject to confirmation of the appointment by the House of Assembly of the state’’
This is a State Chief Judge’s Achilles heel with his/her apron strings tied to three principal authorities. It is the very foundation for absence of Judiciary independence and there is no moment it displays this absurdity more than when there is a move to impeach a state governor.
In reality, NJC pays only the salaries of the Chief Judges, monitors and evaluate his/her performance as well as discipline him/her whenever he/she errs. But the state government builds the court, provides helping hands (staff), working tools, general maintenance and logistics among others. State House of Assembly appropriates budget for the state judiciary. This makes the state to have more stakes in the affairs of state judiciary.
In the event of impeachment of state governor, the process commences with state House of Assembly serving the state governors and the Chief Judges with impeachment notice. The duty of the later is to constitute a seven-man panel on receipt of a copy of impeachment notice served on the governor; after a motion is passed by two-third of members of the House. While the Chief Judge is torn in between the state governor and state House of Assembly over the constitution of impeachment panel, the NJC usually watches with keen interest how the chief judge conducts his own part of impeachment exercise as dictated in Sections 188 (5) and 188(7).
The dilemma of a chief judge was aptly demonstrated on October 10, 2006 when 24 lawmakers of the Ekiti State House of Assembly passed a motion suspending the state Chief Judge, Justice Kayode Bamisile and replaced same with Justice Jide Aladejana. Bamisile’s sin, according to the lawmakers was that the seven-man panel he constituted was made up of Fayose’s acolytes. The legislators had served an impeachment notice against Governor Ayodele Fayose and his deputy, Mrs. Abiodun Olujimi accusing them of graft.
But by October 13, 2006, the then Chief Justice of Nigeria (CJN), Alfa Begore voided the appointment of Justice Jide Aladejana by Ekiti State House of Assembly as “Acting Chief Judge”.
Belgore, in a letter addressed to Justice Aladejana dated October 13, declared that the procedure and circumstances under which he was appointed by the assembly were contrary to the provision of Section 271 of the 1999 Constitution.
Any action taken by Aladejana in his capacity as “Acting Chief Judge” would be unconstitutional, the Chief Justice warned.
The letter with reference No. CJN/COR/SG/A.79/III/144 was titled: Re: “Petition against the conduct of Hon. Justice Jide Aladejana of Ekiti State High Court on illegal composition of purported impeachment panel in Ekiti State”.
The letter, which was copied Ekiti State Governor, Ayo Fayose, read: “It has been brought to my notice that you (Aladejana) have been appointed by the House of Assembly of Ekiti State as the Acting Chief Judge, following the suspension of the State Chief Judge, Hon. Justice Kayode Bamisile, for exercising his constitutional power. Your faxed letter and other documents of 12th October, 2006 to me were also in the same vein.
“As you are aware, the procedure for appointment of an Acting Chief Judge for the state is clearly spelt out in Section 271 of the 1999 Constitution (of) the Federal Republic of Nigeria.
“I am to stress that the perceived imminent constitutional crises in the state mentioned in your letter notwithstanding, the procedure and circumstances under which you have been appointed are contrary to the aforesaid provision of the 1999 Constitution on appointment of an Acting Chief Judge.
“Hence, any action by you in your capacity as the Acting Chief Judge will be unconstitutional”.
On November 10, 2006 also, the then Governor Joshua Dariye of Plateau removed Justice Lazarus Dakyen as the state’s acting chief judge.
According to a press statement issued by the state government and signed by the then Secretary to the State Government, Chief John Gobak, the chief judge’s acting appointment was terminated in pursuance to section 271 (4) (5) of the constitution of the Federal Republic of Nigeria.
This was after Justice Dayken had set up a seven-man panel to probe the allegations of gross misconduct made against Governor Dariye. Justice Ya’u Dakwang was thereafter appointed by Dariye to replace Justice Dakyen. NJC suspended and subsequently sacked Justice Dakwang for accepting the appointment.
Curiously, virtually no state chief judge either substantive or on acting capacity involved in constituting impeachment panel to investigate allegations of impropriety levelled against state governors by their respective state House of Assemblies were not sacked by NJC for sidestepping provisions of Section 188 of the 1999 Constitution. Perhaps, that explained why Justice Lazarus Dakyen who retired on January 28, 2014 as the Plateau State chief judge after attaining mandatory age of retirement was erroneously and regrettably reported as been sacked by NJC over Dariye’s impeachment in an earlier article published in some dailies recenltly. Justice Dakyen remains as one of the greatest survivors of impeachment processes in the country.
Section 188 which deals with processes for the removal of state governors is devoid of ambiguity and crystal clear to the comprehension or understanding of even layman on the street. What then makes Section 188 a burden or even albatross for a sitting chief judge or an acting chief judge of a state whose governor is going through impeachment ritual? The answer lies between character and knowledge of the law. It is due to our inherent emotional attitude towards application of the law; our attitude of holding some personality above the law.
On the gale of impeachment in 2006 during General Olusegun Obasanjo’s presidency, Reuben Abati had in his article titled: ‘’Reign of Madness in Ekiti and Plateau’’ published in The ‘Guardian’ of October 14, 2006 held that ‘’the Nigerian judiciary is showing up very badly in the crises. When lawyers and judges break the law, the drift towards anarchy is complete’’.
Before November 13, 2006, when Joshua Dariye of Plateau State, joined the list of governors that were impeached, in less than one and half months same year, two governors, Ayo Fayose, Ekiti State, Peter Obi, Anambra State were impeached. About nine months before then, Rashidi Ladoja of Oyo State was impeached; not forgetting the Bayelsa State governor DSP Alameseighya earlier impeachment.
That was when Obasanjo, with the instrumentality of the Economic and Financial Crimes Commission (EFCC), was breathing through the noses of states’ House of Assembly members and/or states chief judges to remove their respective state governors.
Abati observed further in his said article above that ‘’When you talk about illegality, your attention is drawn to Anambra and Oyo state before now, and the fact that this is politics not law. ‘’———we are running a gun-point democracy. If you stay in the line of fire, you’d be dead before you can get a chance to insist on your rights. And can dead men argue about rights? But what no one can deny, it seems, is that the situation in Ekiti has grown to the level of pure madness and anarchy’’.
The remedy for the state chief judges’ dilemma while their governors are being impeached by the House of Assembly is to remain on the side of the law. This, the chief judge must do irrespective of the power that be, or that want to hoist illegality through him.
On October 11, 2012, former Egyptian President Mohammed Morsi had directed Egypt’s Prosecutor-General (Chief Justice), Abdel-Maguid Mahmoud to resign his appointment, to which the later turned down.
Morsi’s decision came one day after the Criminal Court decided to acquit all defendants accused of attacking peaceful protesters at Cairo’s Tahrir Square in what is known as “camel battle” during the anti-government protests of the previous year.
Morsi ordered him to leave his position as prosecutor general and become the ambassador to the Vatican, but Mahmoud refused saying the President do not have power under Egyptian constitution to sack or post him from his office.
Egypt’s prosecutor general’s action is a big demonstration of judicial independence, Nigeria judiciary deserve to copy if democracy is to survive for long on our land.
