‘The president has no say in the appointment and removal of judicial officers in Nigeria’

Mr. Norrison I. Quakers, a Senior Advocate of Nigeria (SAN), is a seasoned lawyer with decades of experience in legal practice. He has vast experience and advises on all aspects of commercial and corporate law including business structuring. He litigated on the constitutionality of ‘holding charge’ amongst other cases of constitutional and legal significance.Quakers is a skillful trial and investment lawyer with special interests in litigation, maritime law, energy law, real property, arbitration, commercial/transactional/insolvency practice as well as public law and policy development/legislative advocacy.He has been identified as one of the top 100 lawyers in Nigeria in City Lawyer Publishers list and was called to the inner bar in 2011. He is a member of several professional bodies including but not limited to the Chartered Institute of Arbitrators, Nigerian Maritime Association, Maritime Arbitration of Nigeria. He was also the Secretary to the national working group on the review of the law of evidence and administration of justice in Nigeria.

The recent suspension of the Chief Justice of Nigeria (CJN), Walter Onnoghen, has raised different shreds of views. Some lawyers are arguing that the federal government apparently sidestepped the National Judicial Council (NJC) because it feared NJC would shield the CJN who chairs the body, if the matter went to it. Therefore, they are calling for a constitutional overhaul of the NJC. In this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, a Senior Advocate of Nigeria, Norrison Quakers, believes that the problem is in keeping the existing laws rather than in reviewing them. He also described as unlawful, foreigners campaigning for a political party in Nigeria among other interesting views.

Do you agree that the NJC as presently constituted needs to be overhauled?
First, let me start by saying that all that is being suggested and being said strikes at the heart of our constitutional democracy. Do we have a constitution in place? The answer is yes. What does the constitution say about itself? It says it is supreme and has binding authority or effect on all persons and authority. Is there a provision in the constitution as regards addressing issues of infraction, particularly relating to the office of Chief Justice of Nigeria? The answer is yes! We must also understand that Chief Justice of Nigeria is the head of an arm of government. Therefore, we must have to understand separation of powers in that context. Can the chief justice of Nigeria be removed or suspended from office? Constitutionally speaking, the answer is no. He cannot because he is the head of an arm of government. As Chief Justice of Nigeria, he is the head of several constitutionally created bodies such as the National Judicial Council (NJC), the Federal Judicial Service Commission (FJSC) and a number of other institutions.

If the CJN has been found to breach a constitutional provision or an existing statue, the law is not an orphan, it has a provision to address such anomaly and I will give you a perfect example. If a petition is done against the CJN for an infraction and it is sent to the NJC, which he is the chairman, he would recuse himself.  He is not a sole member of the NJC. The NJC is constituted by himself and a number of persons and it is also provided for in the constitution. Some of the members do not have to be lawyers. The attorney general of the federation and the president of the court of appeal are all members. Therefore, when they sit to determine a petition against the CJN, because he is involved, there is internal mechanism for him to step down until the petition is investigated because he cannot sit at his own cause. The law is so clear on that. That is why the law simply says any time such investigation is to be conducted, the occupier of that office would be advised to step down. And that is what the NJC had done now and that is what the constitution provided for.

There is another leg of the argument that he almost single handedly appoints members of the NJC?
Regardless, even if he does, that is what the constitution provides and until it is amended, we have to comply with it. The constitution in third schedule, part 1, established under section 153 says the following about the composition of the NJC: “The National Judicial Council shall comprise the following members, – (a) the Chief Justice of Nigeria who shall be the Chairman (b) the next most senior Justice of the Supreme Court who shall be the Deputy Chairman; (c) the President of the Court of Appeal.” In other words, number one and two, that is the CJN and the next to him in hierarchical structure shall be the chairman and deputy. The composition continues: “(d) five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal.”

Those are the five persons he selects. Continuing: “(e) the Chief Judge of the Federal High Court;(f) five Chief Judges of States to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years.” So he picks them. Continuing: “(g) one Grand Kadi to be appointed by the Chief Justice of Nigeria from among Grand Kadis of the Sharia Courts of Appeal to serve in rotation for two years; (h) one President of the Customary Court of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary Courts of Appeal to serve in rotation for two years; (i) five members of the Nigerian Bar Association who have been qualified to practice for a period of not less than fifteen years, at least one of whom shall be a Senior Advocate of Nigeria, appointed by the Chief Justice of Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-appointment.” Now in relation to members of the NBA to be appointed, they are recommended for appointment by the National Executive Committee of the NBA.

It says: “Provided that the five members shall sit in the Council only for the purposes of considering the names of persons for appointment to the superior courts of record.” In other words, when it comes to the issue of disciplining of judges, the lawyers are not expected to participate. “(j) two persons not being legal practitioners, who in the opinion of the Chief Justice of Nigeria, are of unquestionable integrity.” Those are what the constitution has provided in relation to the composition of the NJC. Yes, he appoints! In this clime we tend to be subservient to our appointers, even where he is going wrong, but not in the face of constitutional infractions, presumably. The constitution might not be perfect, but we have a constitutional provision that we are expected to follow. If the constitution says that the NJC would be responsible to address infractions as it concerns judges including the CJN, we must comply. Section 292 (1) of the constitution says the following about judges: “(1) A judicial officer shall not be removed 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, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.”

What this means is that the constitution has no provision for suspension or step aside by the president. Can he be removed? Yes! In the constitution, it is couched that two-third majority of the Senate would make the recommendation for his removal. The section that empowers the NJC in terms of discipline of judges and even their removal in paragraph 21 of the third schedule says: “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, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and(ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja; (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.” Who are those specified in paragraph (a)? They are the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court.

So you can see that the constitutional provision in relation to discipline is vested in the NJC. It is in black and white. It is the NJC that would make recommendation to the president just like during the appointments. The president has no say in both the appointment and removal of judicial officers. All he is expected to do is once the NJC has done its in-house cleaning exercise and recommend someone for appointment, is to forward or transmit the persons name to the Senate for confirmation hearing. After the confirmation hearing, the name is sent back to him to administer the oath of office and oath of allegiance. So he does not even have a say. If you do not have the power to appoint, you do not have the power to sidetrack or to say “I suspend you from office”. There is no such recognition. The power is vested to the NJC.
In essence, section 11 of the interpretation act, which provides that the person who appoints can remove, does not apply here as some argue?
Yes, it does not apply.  

They do not understand that the power to appoint is not vested in him. The person to be appointed is recommended to the president. What is required of him is to simply send the name to the appropriate authority for confirmation hearing for appointment. If the power to appoint is vested in the president, it does not need to go through the federal judicial service commission and all the other bodies. He will just pick anybody and appoint. Under the military regime of Yakubu Gowon, he made Justice Teslim Elias the CJN from the academia. That was because there was no constitutional provision that addressed the issue, unlike now we have the NJC that is responsible to recommend for appointment after the clean up exercise has been done. So, once the NJC is satisfied, the name of the fellow is forwarded to the president that “this is the person we have chosen to be appointed” and he also transmits the name to the senate for confirmation hearing. When they confirm, it is sent back so the president would administer oath of office and allegiance and nothing more. The president has no powers to even refuse the recommendation of a person that has been forwarded to him. If you notice the trend in Abia, Kwara and Ekiti states, their respective governors in their wisdom removed their chief judges. The NJC sat down and tell the governors that they have no right to do what they did. NJC went further to discipline judges who made themselves available to be appointed in acting capacity.

So what does that suggest in a situation where the next person to the CJN made himself available to be sworn in in acting capacity?
There is already a precedent and this precedent must be followed. The irony of it is that the precedent happened during the tenure of incumbent CJN and the acting CJN. They were members of the committee when the issues happened and when the decision was taken. Therefore, they are bound by the decision that they participated in. Why would for instance the code of conduct tribunal be sitting over a matter that it already given a decision on? What do I mean by this? Sylvester Ngwuta of the Supreme Court was before the CCT for what you can consider breach of code of conduct Act and a preliminary objection was raised based on the judgment of Nganjiwa v FRN that you cannot subject a judicial officer to this sort of hearing and it was upheld by the CCT. They upheld that objection and threw out the case against Ngwuta. So what has changed now? Nothing has changed because that is the law. That decision has not been upturned on appeal and there is no difference between that fact and this fact. We have a CJN who is appearing before the CCT for infraction of the Code of Conduct Act (CCA).

Do you know that section 290 of the constitution says: “(1) A person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this Constitution and has subsequently taken and subscribed the Oath of Allegiance and the Judicial Oath prescribed in the seventh Schedule to this Constitution. (2) The oaths aforesaid shall be administered by the person for the time being authorized by law to administer such oaths.” In other words, you cannot begin to function or act as a judicial officer until you have declared your assets, including the taking of oath of allegiance and judicial oath. The judicial oath states: “That I, you mention your name, do solemnly swear and affirm that I would be faithful and bear true allegiance to Nigeria, that as Chief Justice of Nigeria, I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law, that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria…”  Therefore, if you have not been able to abide by the code of conduct in the fifth schedule, you are seen to have breached the judicial oath of office. You cannot begin to perform your duties until you have done so.

Now when you have been seen to have violated it by under-declaring, not declaring or falsely declaring, what is the Code of Conduct Bureau expected to do? It is to lodge a complain to the NJC that this judge has violated and breached the provisions of the CCA and it would be looked into based on fact and that judge would then be recommended for removal. Therefore, you need to first remove him from office. And the reason for this is so you don’t desecrate the office. It is like a priest. If he violates his oath, you de-flock him. He must put off the robes before he can be subjected to trial. You cannot take a judge and dock him.

There are arguments that the kind of accusation against the CJN does not even warrant trial; that all that was required under the law was for him to amend it?
That is another level, if we follow the law as it is. I’m not in position to say whether he is guilty or not. My position is, do we have laws that address all of those? My answer is yes! The CCA is also clear on this. It says provided the person in question did not deny the issue of under-declaration, you give him an additional form to fill. It is when he deliberately intends to conceal it and you investigated it to found out, confronted him and he denied it that you charge the person. But if the person admits, he fills the form and it becomes part of the forms he has.

Are you satisfied that the five lawyers who are members of the NJC are excused when the issue of discipline of a judicial officer arises?
Yes, there is a reason for that. The lawyers are members of the legal profession. The NJC is not dealing with professional discipline of lawyers, but that of judicial officers. They are not involved in the discipline of judges because they probably would not appreciate exactly what judicial officers go through. By hierarchical structure, a judicial officer is superior to a lawyer. It is just like in the military, when it comes to discipline for instance, a major cannot try a Lieutenant Colonel, who is standing court martial.

So even if the lawyers are the mates of the judges and a senior advocates?
It doesn’t matter.  Why is it that when we go to the court, regardless of your status, we bow to the bench? Have you seen a senior advocate who is older than the judge that refuses to bow? It is seen as contemptuous! Chief Rotimi Williams of blessed memory as old as he was at that time as number one Nigerian lawyer would appear before a judge who is far his junior in ranking and age, he will still have to bow to the bench. Why? It is because the office is held in reverence. And that is why some of us felt sad that we sat back and allow this desecration to happen. It is long time in coming.

Some lawyers believe that the CJN is the most powerful CJN in the world, constitutionally speaking due to the enormous powers he wields in setting up panels and making numerous appointments unlike in the US where all the justices of the Supreme Court sit to hear cases?  
If the drafters of the constitution in their wisdom have vested enormous powers to the CJN, so be it. It is not about the occupant of the office. It is about the office itself. Mind you, there are things to be taken into consideration before such appointments are made. What the CJN has cannot be described as absolute powers because he cannot do and undo. There are still checks and balances. He can appoint some members of the NJC, but the NJC is a body set up by the constitution itself. Even though he is responsible for the appointment of some of its members, such appointment has also been defined by the constitution itself.

Therefore, he cannot go outside what the constitution has stated. For example, he cannot appoint persons of questionable character because the law says “non-lawyers who are of unquestionable integrity.” The society would protest about it. Look at the process we go through to be appointed a senior advocate of Nigeria. You are aware that publication is also made for the society to make comment on the suitability or otherwise of lawyers who apply for the rank of senior advocate of Nigeria. So, if you stumble on anything concerning an applicant, the law encourages you to write or speak out. If the CJN appoints someone and it turns out that the fellow is of questionable character, the society is expected to cry out. So, for me, the constitution is very clear.  

How do we distinguish Nganjiwa v FRN in terms of what constitutes offence by judicial officer that are exempted from the NJC?
If a judicial officer is involved in armed robbery or rape, do you need NJC?

So, won’t the office of the judge be desecrated at that point if he is charged without being removed first?
That is fine. In Christian perspective, the scripture says he that breaks the hedge, the serpent would bite. If what you did was not within the ambit of your judicial function, then you will answer to the crime without recourse to the NJC. Any judicial officer that breaches a law that is not within the ambit of his judicial performance has become a criminal.

What in your view does the recent invasions of the judiciary portend for that arm of the government?
It is for me an infringement and the best way I can describe it is that the executive has crossed the line. There is no longer clear-cut separation of powers and respect for rule of law. And when this thing happened the first time, it was not addressed. That is why today, it is now the turn of the CJN. Reverse it; can anybody invade the office of the president of Nigeria? They have invaded the office of the president of the senate, meaning that the two arms of government have been attacked – the legislature and the judiciary, leaving only the executive. What does that say to you? That the executive is more powerful than the other two arms of government and that the most powerful office in Nigeria today is the office of the president.  

Perhaps, some say it is because those two arms are perceived as corrupt?
But we have also discovered that the secretary to the government of the federation had been kicked out of that office because of allegations of corruption. The DG of the National Intelligence Agency was also accused of corruption. It is an arm of the executive. If the secretary of the government is being accused of corruption, what does that tell you about the executive? It is not about the person, but about the office.

Why should the appointment of SAN be made more stringent than that of judges, because you even alluded to the fact that judges are superior to lawyers?
Are you aware that the Directorate of Secret Services is also involved in profiling would-be judicial officers, investigating them and looking into their backgrounds? It might not be good enough, unlike ours, where names of persons to be appointed as senior advocates of Nigeria are published for societal comments. Perhaps, we need to also extend it to judicial officers in addition to what the DSS does in terms of investigating them. Perhaps, what we need to do is to make public, names of those who are going to hold public trust, including those who are going to run for governmental offices. We have discussed it in the time past that the system of appointment must be looked into unlike what we currently have where politicians recommend those to be appointed as judicial officers. What do you think will happen when a politician has a case and appear before someone who had been his personal assistant before becoming a judge? What do you think would come out of it? Justice Abiodun Kessington used to say many years ago that when you ride on the back of a tiger, you end up in his belly. And that is what is going on. We have allowed ourselves to fraternize with politicians. Politicians have crept in into the hallowed chambers of justice to determine what justice is and this is the outcome.

The political atmosphere is highly charged such that the governor of Kaduna state few days back threatened that foreigners who interfere in Nigeria’s election would go back in body bags. Is that not a hate-speech?
It certainly is, but unfortunately, the concept of hate-speech is such that is actually addressed to Nigerians with a view to making Nigerians hate themselves or making inflammatory statements. In his own case, he targeted foreigners. Unfortunately, it is not a statement that any discerning mind should condone. It is something that every Nigerian should frown at and call the governor to order. You don’t take the international community frontally. In 2015 they were involved and they made sure that the election was free and fair. They are international observers. They are not to be involved in your election. I watched his speech. What he was actually saying was that the party in opposition was trying to create the Venezuela type of situation where the leader of the opposition declared himself as president and the international community recognized him. It is unfortunate that that sort of statement is coming from a public office holder and moreso in the person of Mallam Nasir El-Rufai. He shouldn’t have made such statement in a system where there is mutual distrust and suspicion. A statement like that can lead to something else, if not well addressed. He owes, not just the international community an apology but he owes all Nigerians an apology. He was calling for war. That is the implication of that statement.

It is even more curious because some foreign politicians from Niger Republic recently campaigned for his party APC in Kano state. What does our electoral act say about foreign interference in our elections?
It is very unfortunate that we had foreigners coming into our country, wearing campaign dress of that political party. The implication is that they are also going to participate in the election. And nobody has made any negative comment, including the INEC. INEC from what I read in the papers said so far they are only campaigning and not participating in the election, they are free. How on earth can an umpire make such statement? They are not citizens. If you have no power to vote or to stand for election, you have no power to campaign. I want to believe that that statement was not made by INEC official, but I read it in the papers. It said that the government of the day has not done anything unlawful, illegal or unconstitutional, that they were representatives that merely came to identify with the government of Kano state.

A thing like this should actually lead to the disqualification of a political party. When you see a foreigner, wearing the identity of a political party, it is clearly an infraction of the electoral act. Allowing representatives from Niger Republic to participate in APC’s electioneering campaign by wearing its party logo and being involved in its party activities is a violation of section 221 and 222(b) of the constitution, which says “that membership of the political parties is open to every citizen of Nigeria irrespective of his place of origin, circumstance of birth, sex, religion or ethnic grouping.” In other words, a party must be open to only Nigerians. So, what they have done has desecrated our laws. If you form a party, it must be restricted to only Nigerians. So what they have done now is a violation of the constitution. If your read section 228, it says the National Assembly may inquire about any infraction or allegation concerning any breach of the provisions of the constitution as it relates to the conduct of the APC campaigns that held with representatives of Niger Republic coming to participate in the electioneering campaigns.

Can the National Assembly by the law declare punishment or they make recommendation for punishment?
Section 228 of the constitution says: “The National Assembly may by law provide -(a) for the punishment of any person involved in the management or control of any political party found after due inquiry to have contravened any of the provisions of sections 221, 225(3) and 227 of this Constitution;(b) for the disqualification of any persons from holding public office on the ground that he knowingly aids or abets a political party in contravening section 225(3) of this Constitution.” So, it is there in section 228 that the National Assembly can by law inquire and when they find that there has been a breach, provide punishment or sanction. But the question is: can that happen under the present National Assembly as presently constituted and polarized? That is because we have a divided house. We look at primordial sentiments and considerations in everything we do in this country. It is a house that is divided against itself! We are not really defending Nigerian constitution; rather we consider ethnic and religious issues before considering whether we are Nigerians. But we must have the Nigerian spirit. We must think as Nigerians and set out to uphold the provisions of the constitution, which is the Supreme law of the land.  

Quote 1
The constitution has no provision for suspension or step aside by the president

Quote 2
Allowing representatives from Niger Republic to participate in APC’s electioneering campaign by wearing its party logo and being involved in its party activities is a violation of section 221 and 222(b) of the constitution