Incidents of defiance of the directives of the National Judicial Council (NJC) has continued to recur despite increasing drive by the council. In this report, ASSISTANT EDITOR, ERIC IKHILAE highlights measures that could be explored by NJC’s current leadership to enhance compliance.
The National Judicial Council rose from its 107th meeting held from November 13 to 14, 2024 with, among others, a recommendation that the then Chief Judge (CJ) of Imo State, Justice T. E. Chukwuemeka Chikeka be compulsorily retired on grounds of alleged age falsification.
The state governor, Hope Uzodinma, acted on the recommendation, a development that created a vacancy that required to be filled.
However, in the process of filling the vacancy, Uzodinma chose to break with tradition, claiming, in a letter to the NJC, that the three most senior judges of the state’s Judiciary were “unappointble” for certain reasons.
But, before the NJC could act on his letter, Uzodinma appointed Justice Theophilus Nnamdi Nzeukwu, who was then the number four in the hierarchy of judges’ seniority in Imo State High Court, as the state’s acting CJ.
The governor’s decision promptly drew condemnation from, among others, the NJC and the Imo State’s Nigerian Bar Association (NBA).
They described the development as an aberration and insisted that the right thing be done.
The NJC’s position was conveyed via a statement issued on April 4, explaining that it was yet to consider a request by Uzodinma to appoint Justice Nzeukwu, who was then number four in the hierarchy of judges’ seniority in the state as an acting CJ.
It stated: “This is to clarify to the public that the Governor of Imo State had earlier written to the council (NJC), requesting for its approval to appoint Hon. Justice Theophilus Nnamdi Nzeukwu, who is number four in the hierarchy of seniority as acting Chief Judge of the state.
“The governor in his said correspondence to the council, gave reasons why in his own view, the three most senior judges are not appointable.
“The council is informing the public that the said letter is yet to be considered, as deliberation on the request is slated for the next council meeting, which is scheduled to hold on 29th and 30th April, 2025.
“The council is therefore, by this press release, informing the public that the governor’s request is yet to be considered by the council.
“The council has not given approval to the governor for the appointment of the acting Chief Judge.
“The council is not a party to the process of the purported appointment of Hon. Justice Theophilus Nnamdi Nzeukwu as the acting Chief Judge,” the NJC said.
However, at its 108th meeting held between April 29 and 30, the NJC eventually considered Uzodinma’s request and rejected his reasons for seeking to break from an established tradition.
The NJC directed Uzodinma to appoint the most senior judge in the state’s High Court’s hierarchy as the acting Chief Judge in conformity with the provision Section 271 (4) of the Constitution.
It argued among others, that the constitutional provision on the appointment of an acting CJ of a state did not give room for discretion on the part of a governor.
Again, at its 109th meeting held on June 25, the NJC reiterated its earlier directive to Uzodinma to swear in the most senior judge in the state as the acting CJ.
The NJC, also at the June 25 meeting, elected to wield the big stick against Justice Nzeukwu by sanctioning him.
The council recommended Justice Nzeukwu’s compulsory retirement on the grounds that he made himself available to be sworn in as acting CJ, knowing full well that he was number four in the hierarchy of Judges of the Imo State Judiciary and contrary to Section 271(4) of the Constitution.
However, following the June 25 directive by the NJC, Uzodinma announced the appointment of Justice Ijioma Aguguo, the most senior judicial officer on the state’s Bench, as the acting CJ.
But, for unknown reasons, the governor has failed to swear Justice Aguguo in full compliance with the directive of the NJC, a development that has made it impossible for her (Justice Aguguo) to act in the capacity of an acting CJ of the state.
Many have argued that Justice Aguguo can not lawfully assume the role of an acting CJ by virtue of the mere announcement of her appointment by the governor without being duly sworn in.
According to the Imo State branch of the Nigerian Bar Association (NBA), there is currently no acting CJ in the state despite Uzodimma’s announcement of Aguguo’s appointment.
The state NBA Chairman, Chris Ihentuge argued that the governor’s announcement of Justice Aguguo’s appointment over the radio is not enough, adding that the appointee has to be sworn in before she could lawfully assume office.
Ihentuge said: “As far as the association is concerned, there is no Chief Judge in Imo, because since the woman considered to be the most senior judicial officer was announced as the acting CJ by the governor, no swearing-in has been carried out.”
He noted that the development has created a confusion in the state’s Judiciary, which made it impossible for the court to observe its annual vacation this year because of the absence of an acting CJ who is required to assign vacation judges.
Observers argue that the governor’s failure to swear in Justice Aguguo in acting capacity, as required, amounts to a subtle attempt to frustrate the realisation of NJC’s directive, a development that raises the question as to whether the council is helpless in such situations.
Past cases
A similar scenario played out in Rivers State during the tenure of (Rotimi Amaechi as the governor between 2013 and 2014).
The NJC recommended the most senior judge in the state, Justice Daisy Okocha for appointment as the state’s CJ, but Amaechi declined and instead, he appointed Justice Peter Agumagu instead.
The NJC responded by suspending Agumagu for making himself available to be unlawfully appointed. It proceeded to declare his appointment unconstitutional.
There was also the case in Cross River State when between 2019 and 2020, Governor Ben Ayade declined to appoint Justice Akon Ikpeme, the then most senior judge in the state, as the CJ), citing what he described as security concerns.
Rather than appoint the most senior judge, Ayade went for a junior judge, who he appointed in acting capacity repeatedly, a decision the NJC condemned and insisted on its recommendation.
There was the case in Kwara State in 2009 where the then Governor, Bukola Saraki, failed to reverse his sack of the state’s Chief Judge, Justice Raliat Elelu-Habeeb despite the NJC’s intervention.
The matter was eventually resolved by the Supreme Court in a judgment on February 17, 2012, voiding Justice Elelu-Habeeb’s purported sack by a governor without the approval of the NJC.
The Supreme Court held, among others, that under the 1999 Constitution, neither a state governor, a state’s Executive Council (EXCO) nor the House of Assembly has the power to remove any judicial officer or a Chief Judge of a state without the input of the NJC.
What the Constitution says
The NJC was established under Section 153(1)(i) of the 1999 Constitution to regulate the appointment, discipline, and promotion of judicial officers across the Federation.
As noted by Abuja-based lawyer, Otunba Tunde Falola, “By design, the NJC was intended to shield the Judiciary from political interference by the Executive arm.”
Falola added that under Paragraph 21(C) of the Third Schedule to the Constitution, as it relates to the appointment of a Chief Judge and other judges of the various states of the Federation, the NJC is required to recommend judicial appointments to state governors.
“Section 271(1) of the Constitution also provides that the appointment of a state Chief Judge shall be made by the governor on the recommendation of the NJC, subject to confirmation by the State House of Assembly of that particular state.
“By implication, the governor of a state is not at liberty to act unilaterally or ignore the NJC’s recommendation in such appointment.
“Yet, the Constitution vests the final appointing act in the governor, creating room for executive resistance and rascality,” Falola added.
Another lawyer, Akinlolu Kehinde (SAN) noted that by the provision of Section 271(1) of the Constitution, the NJC is the recommending authority in judges’ appointment, but the governor is the appointing authority.
Kehinde added: “The NJC cannot directly appoint a state Chief Judge. Thus, the NJC has no direct enforcement power if a governor refuses to act.”
Is the NJC helpless?
To the lawyers, the NJC is not totally helpless in the face of continuous defiance of its directives by state governors, but it is constrained by some ambiguities inherent in the constitution.
Kehinde, Musibau Adetunbi (SAN) and Falola are of the view that the situation is not totally without a remedy.
They identified measures to be adopted to remedy the situation, but were quick to stress the need for amendments to the construction to address existing locuna and provide the NJC with more biting powers.
In the interim, Kehinde suggested that the NJC and other stakeholders could continue to explore the option of judicial review where its directives are ignored.
He said: “The NJC, NBA, or concerned parties can go to court for an order of mandamus compelling the governor to act in line with the constitution.
“Courts have, in the past, declared actions of governors in this regard unconstitutional.”
He said another option is for the NJC to refuse to recognise or deal with anyone other than its recommended candidate, adding that if unrecognised by the NJC, such governor’s appointee will become “a mere ‘political CJ’ without judicial legitimacy.”
Kehinde also suggested that the NJC could resort to the application of both public and political pressure by issuing strong public statements to rally pressure, since the judiciary itself cannot enforce political will.
According to him, the NJC is not completely helpless, but its hands are tied by existing constitutional scheme.
He added: “The real enforcement lies with the courts (via mandamus or constitutional interpretation) and the political process (House of Assembly and public accountability).
“In truth, unless the constitution is amended to give the NJC more bite, governors will continue to exploit this loophole,” Kehinde said.
Adetunbi argued that under the current constitutional arrangement, there is little the NJC can do to compel governors to abide by its directives.
Falola, like Kehinde, noted that the NJC lacks direct coercive powers when it comes to enforcement of its directives.
He added: “What this means is that, it (the NJC) cannot compel a governor of a state to sign an appointment letter or administer the oath of office on any judge it may have recommended.
“However, this does not mean that the council is powerless: far from it, as there are several avenues it can explore in ensuring that its directives are complied with.”
Falola spoke about the resort to judicial enforcement of its decisions, stating that where the governor of a state refuses to comply with the directive of the NJC, the affected judge, the NBA or concerned litigants can approach the courts to compel compliance.
He added: “The courts have repeatedly affirmed the NJC’s primacy in judicial appointments as was seen in the case of Hon.Justice Elelu_Habeeb’s (former Chief Judge of Kwara State) case.
“That case as a precedent, strengthens the NJC’s power in terms of recommendation of the appointment of the Chief Judge of a state and provides a pathway for judicial enforcement.”
Falola also spoke about the need for constitutional remedies, arguing that sequel to the provision of Section 287(3) of the constitution, once the NJC’s recommendation is judicially affirmed by the court, the affected governor becomes legally bound to comply, failing which he risks public condemnation and the attendant consequences.
As a measure, Falola spoke about the possibility of the NJC can escalate the matter to the President, the National Assembly, and the Nigerian Governors’ Forum (NGF).
He added that the NBA and civil society can also exert public and political pressure on recalcitrant governors with a view to ensuring compliance with the NJC directives as was done in the case in Rivers State under Amaechi, where sustained agitation eventually led to the inauguration of the then Chief Judge of the state.
Falola said: “I want to believe that the NJC is not entirely helpless, but its powers are indirect. It can rely on judicial affirmation, constitutional obligations, and political pressure to enforce compliance when governors act in defiance of its directives.
“The recurring nature of these crises underscores the urgent need for constitutional reforms to protect the independence of the Judiciary and prevent executive overreach.
“As things stand, the NJC must be proactive by securing judicial orders, mobilising institutional allies, and ensuring that no state governor undermines the rule of law with impunity,” Falola said.
