Many could not believe their ears when the National Judicial Council (NJC) came out with its position on the suspension of President of the Court of Appeal (PCA) Justice Isa Salami last week. In papers fitted in court, NJC said President Goodluck Jonathan lacks the power to determine Justice Salami’s fate, adding that he could not reappoint the Acting President of the Court of appeal, Justice Dalhatu Adamu without its consent. Lawyers view this as a healthy development and want parties to resolve the dispute without further delay. Eric Ikhilae, Joseph Jibueze and Precious Igbonwelundu report.
• Lawyers hail Council’s stand
The judiciary, arguably, attracted the worst comments in its history on the case involving the former Chief Justice of Nigeria (CJN), Justice Aloysius Katsina-Alu, and suspended President of the Court of Appeal (PCA) Justice Isa Ayo Salami.
Since Justice Salami’s suspension on August 18, 2011, the judiciary has attempted, in vain, to remedy the nastiest decision it ever took. It played into the hands of politicians and got its hands burnt. Today, the judiciary seems to be a victim of its undoing.
The realisation of this fact may have informed its new position that the Presidency lacks the powers to determine Justice Salami’s fate. The National Judicial Council (NJC) astounded all last week when it made a dramatic ‘U’ turn from its earlier position, arguing that the President has no constitutional role in Justice Salami’s recall.
At the height of the crisis last year, the NJC, under Katsina-Alu, wrote the President recommending Justice Salami’s sack, for alleged ground of unethical conduct. Despite the pendency of Justice Salami’s suit, challenging the composition of the Justice Ibrahim Auta panel (that recommended his sack), President Goodluck Jonathan wasted no time in approving his suspension.
In May this year, the NJC, under the immediate past CJN, Justice Dahiru Musdapher, voted for Justice Salami’s recall and communicated same to the President. Rather than act with the dispatch with which he enforced the earlier recommendation from the body, Jonathan became creative in devising reasons to avoid giving effect to the recommendation.
The President, speaking through the Attorney-General of the Federation, Mohammed Adoke (SAN), argued on May 22 that the Presidency would not act on NJC’s request because of pending cases in court in respect of the matter.
Again, determined to reverse its earlier position, the NJC went before the Federal High Court, Abuja to challenge President Jonathan’s powers in facilitating Salami’s return to office and his retention of Justice Dalhatu Adamu as Acting Court of Appeal President. Justice Adamu’s appointment has been renewed about three times.
Citing the provisions of Sections 153, 158, 237 and 238, the NJC queried President Jonathan’s powers to determine Justice Salami’s fate.
The NJC, in a written address it filed in a suit by some rights activists, acting as Registered Trustees of the Centre for the Promotion of Arbitration (RTCPA), argued that under Section 238 (5), the renewal of Justice Adamu’s mandate by President Jonathan ought to be proceeded by its (NJC’s) recommendation.
Section 238 (5) reads: Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appoint a person whose appointment has lapsed.
Sub-section 4 reads: If the office of the President of the Court of appeal 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 President shall appoint the most senior Justice of the Court of Appeal to perform those functions.
Observers argued that the dilemma, in which the judiciary now finds itself, resulted from the obvious moral decadence in the society fueled by corruption, which has permeated all its segments. They noted that the most worrisome angle to the Katsina-Alu/Salami saga is the negative impact it has on the judicial system.
They said rather than allow reason to prevail and justice to take its natural course, they were manipulated in the case, resulting in a fragmented and highly bruised judiciary. Rather than speak with one voice on the issue, observers noted that the judiciary was divided by interest.
They observed that there are those who believe that Salami should be kept outside, despite the injustice this position may occasion, in view of the benefit they are deriving from his continued suspension; and the others who believe that it is just to allow Salami back.
This polarisation of opinion, they argued, is reflective in Justice Adamu’s position in the case by RTCPA. Adamu argued, in his objection to the suit, that the court lacked the jurisdiction to entertain the reinstatement suit, because the plaintiff lacked the locus standi to bring the action.
In the application filed by his counsel, E.O Kanda, Adamu said a search conducted at the Corporate Affairs Commission (CAC) on the plaintiff showed that it was registered as a non-governmental organisation (NGO), whose constitution did not give it the power to sue in representative capacity.
He further argued that with the plaintiff’s locus taken away by its own constitution, no suit would be deemed to be before the court. He objected to the hearing of the suit on the ground that it constituted an abuse of court process and amounted to forum shopping.
According to him, Salami had filed similar suit, seeking among others, to be recalled. Adamu added that though the plaintiffs in both suits were different, parties and the reliefs being sought were similar. He added that the current suit could only survive if it was consolidated with the existing one.
Rights activists, Bamidele Aturu and Jiti Ogunye faulted Salami’s suspension in the first place. They argued that the Presidency acted in error when it suspended Salami and appointed Adamu in acting capacity.
Aturu, argued last year in a statement titled “Justice Salami’s purported suspension- a farcical illegality,” that NJC’s suspension of Salami, in spite of service on it of the process filed by him, challenging the setting up of the Auta Committee, is a condemnable illegality.
“That the brazen decision was taken by a body that has responsibility for overseeing the judiciary shows that our attempt at building a liberal democracy is imperiled simply on account of the illiberal persons that superintend the administration of justice in this country.
“The decision of the Supreme Court in the case of Ojukwu v Military Governor of Lagos State has made it clear that it is an act of lawlessness for a party to present the court, as the NJC as brazenly and contemptuously done in the instant case, with a fait accompli. What the NJC has done is nothing but a farce. First the NJC evaded service, then, it pronounced definitively on a matter that is pending in court; what nonsense?” Aturu noted.
Ogunye in his article titled: “Justice Salami’s suspension by the NJC is illegal and unconstitutional,” published in the wake of the suspension, argued that the NJC has no power to suspend Salami from office, but that it can only, competently, recommend his suspension, to the President, in deserving cases, and the President can only act on such recommendation if it is supported by a two-third address of the Senate.
“Although the National Judicial Council has the power, under the Third Schedule, Part I, Paragraph I, Section 21(b) of the Constitution to recommend to the President the removal from office of the President of the Court of Appeal and exercise “disciplinary control” over him, it is clear that by virtue of Section 292(1)( a) of the Constitution of the Federal Republic of Nigeria, 1999, any recommendation of removal of the President of the Court of Appeal from his Judicial Office can only be effected by the President, acting on an address supported by two-thirds majority of the Senate.
“It is our contention that just as in the case of removal of any removal of the President of the Court of Appeal from office, any exercise of power of “disciplinary control”, over him, such as this suspension, must be subject to the approval of the President, acting on an address of two-third majority of the Senate.
“The correct interpretation of the above-cited provisions of the Constitution is that if the President of the Court of Appeal can only be removed from office only when a two-third address of the Senate directs the President to do so, in the same vein, the President of the Court can only be effectively and consummately suspended from office by the NJC, with a two third endorsement of the Senate and a decision of the President to that effect. This is the principle of checks and balances that is crafted in the Constitution,” Ogunye said.
Lawyers, including Dr. Joel Adedigba, Executive Director of the Socio-Economic Rights and Accountability Project (SERAP), Adetokunbo Mumuni and a Senior Advocate, who pleaded not to be named, praised the new position by NJC.
They said although the NJC’s position appears a reversal of its earlier stance, parties should ensure prompt resolution of the crisis so that the judiciary can focus on effort to rebuild its battered image.
Adedigba said: “The current situation has provided the court with another opportunity to formally ensure justice in the Salami-case. The decision to right a perceived wrong is now left for the Judiciary. I say this because the case, in which the NJC queried the President’s power to determine Salami’s case, is before a court. If the court wants to do justice, this is the opportunity.
“If it wants to continue to act as an appendage of the Executive rather than an independent equal, the choice can be made in the course of this case.
“The judge handling the case should allow an accelerated hearing so that the case can be decided with dispatch. Even of those opposed to Salami’s return want to appeal up to the Supreme Court, the court can speedily hear the case, determine it and ensure that Salami returns to office before his tenure expires,” he said.
Mumuni said: “The point being made and the position now being canvassed by the NJC is the correct position of law.
“However, the NJC acted earlier in the Salami matter as if the Presidency had a role to play in the discipline of a federal judicial officer. This is what the Presidency took advantage of to meddle in a matter clearly outside its constitutional pursue purview.
“It is better late than never. Now that the NJC has re-discovered itself and made the constitutional position known the presidency should just keep a long distance from the matter and let the NJC’s recalling of salami be so that this monumentally embarrassing saga will be put behind the judiciary,” Mumuni said.
The SAN said: “Sadly, a group of individuals within the NJC initially didn’t want Justice Salami back. That group may be losing its influence now, and with the appointment of a new CJN in the person of Justice Mukhtar, there is a breath of fresh air.”
The Senior Advocate observed that until the new CJN came, the old NJC and the Presidency worked in tandem. “It suited all parties that Salami was not recalled. My worry was that push for his recall was taking an ethnic and political colouration which was not good for the judiciary.
“The new position being considered by the NJC, although seemingly contradictory to its earlier position of waiting on the President, is encouraging. But will they have the moral will to push it through?
“I think the ongoing Constitution amendment should spell out a few things more clearly. The Constitution provides that a President of the Court of Appeal shall be appointed by the President on the recommendation of the NJC subject to Senate confirmation. But it is not clear who recalls him in a situation where he is suspended. Ordinarily, it is he who suspends that should recall.
“I think the judiciary should not depend on the executive for such decisions if it must be truly independent, otherwise political considerations will always be brought to bear by the ruling party and other powers that be.
“We also see what may be a clear violation of the Constitution as the Acting Court of Appeal President ought to have left since. His first three-month appointment ought to cease and the President was not supposed to reappoint him after his first appointment had lapsed. How many more times has been reappointed now? I’ve lost count.
“I also believe Justice Salami should withdraw his suit. We are at a point of reconciliation, and if his court case will stand in the way of his recall, let him withdraw it.
“But I think the NJC under Justice Mukhtar should be commended for even considering taking steps to correct what many see as injustice and victimisation of Justice Salami. It is never late to do right. Let us wait and see,” the senior lawyer said.
