Judicial Intrigues Over Wike’s Swearing-In As Governor

CONSTITUTIONAL crisis still looms in Rivers State over who administers the Oath of Allegiance and Oath of Office on the governor-elect, Nyesom Wike, irrespective of attempt by the Attorney General of the Federation (AGF), Mohammed Adoke, to rescue the state from a paralysing judicial crisis.

The legitimacy of the request by the AGF and minister of Justice that the Chief Judge (CJ) of neigbouring Bayelsa State should swear in Wike on May 29, in accordance with Section 185 (2) of the Constitution has polarised lawyers in the state.

The state has been without a substantive CJ for nearly two years, following protracted legal tussle between the state government and the National Judicial Council (NJC) over the appointment of a CJ.

It would be recalled that the NJC had recommended Justice Daisy Okocha as the CJ, following the retirement of Justice Ichechi Nwenenda Ndu in August 2013, but Governor Chibuike Amaechi had ignored this and instead appointed Justice Peter Agumagu, then President of the Customary Court of Appeal, based on the ruling of Justice Lambo Akanbi of the Federal High Court that the NJC erred by recommending Justice Okocha, instead of Justice Agumagu, who was the most senior Judge of the High Court.

Irked by Amaechi’s decision to appoint Justice Agumagu as the acting CJ and later substantive CJ of the state, the NJC took a step further to suspend Justice Agumagu. On the brewing controversy over Wike’s swearing in, former secretary general of the Nigeria Bar Association (NBA), Nimi Walson-Jack, told The Guardian that the 1999 Constitution has a provision for the appointment of Judges and the body saddled with the responsibility of overseeing their activities, like the NJC.

He noted that the AGF, who is generally known to be chief legal officer of the country, is a member of the NJC and his statement requesting the Bayelsa State CJ to swear in Wike was made after an NJC meeting. According to him: “A member of NJC has merely told you the decision of the NJC.

That is all. That is the way I see it.” Walson-Jack insisted that the constitution is very clear that if there is no CJ or President of the Customary Court of Appeal, as in the case of Rivers State, any person performing similar function in other parts of the country can swear in the governor-elect. “And as the chief law officer and member of the NJC have said what should be done. Anyone not satisfied should go to court and the court will adjudicate.

“You cannot decide a matter that is not before the court. The constitution was written to cover many circumstances and that also shows you that the framers of the constitution were intelligent to foresee certain circumstances.

“The constitution was not drafted with Rivers State in mind; it was drafted long ago and so they have provided for a situation that has arisen and the constitution is up to the task.

“We should be grateful that the constitution has enough provisions to cover situations like this,” he said. In same vein, the publicity secretary of the Port Harcourt branch of the NBA, Angus Chukwuma, noted that by virtue of the provision of Section 6 of the constitution and other sections conferring judicial powers on the courts and Judges, the request to swear in Wike should have come from Chief Justice of Nigeria (CJN) or the NJC.

But he pointed out that if they had done so, they would compromise the matters in court, because the NJC is a party in several suits in court involving the Rivers State government, Justice Okocha and Justice Agumagu.

“The best party to have done that is the NJC, because the Judges are under NJC and take direct instruction from the NJC. “But the NJC is involved in the judicial crisis rocking Rivers and it will be a bit partisan on their part, or even compromising cases in court, for them to give such directive.

You know the CJN is member of the NJC. “So, in the circumstance, the most appropriate person to give the directive will be the President of the country, represented by the AGF, in matters affecting the law. “Generally speaking, you cannot fault the decision of the AGF on behalf of the President of the country, who owes it a duty to ensure that the provision of the constitution is preserved.

“The President is the best person to give that directive in the absence of NJC,” Chukwuma insisted.

The NBA spokesman argued that there is no express law prohibiting the AGF from requesting that the CJ of another state to swear in Wike. But for expediency sake, he stated that there is nothing wrong with this directive, because it was one that would ensure there is no vacuum and that the swearing in goes the way the constitution intends it to be.

He, however, observed that though some persons have canvassed that the AGF should have gone to court for a judicial pronouncement, based on Section 185 (2), which states that any persons mentioned in this section from any part of the country can swear in a governor, the matter would be delayed, to the detriment of the intendment of the constitution.   “There is a lot of delay in court and political interference.

If this matter goes to court, APC might come and join in the matter and prolong the matter. “I can tell you that if the AGF goes to court, the matter will be stalled, because the other parties who are opposed to the swearing in will join in the matter and they will take long adjournment, file frivolous injunctions to thwart the swearing in, which will not be the intendment of the Constitution.

“Any party is entitled to go to court to declare that directive null and void and to declare the swearing in, based on that, null and void.

“But for me, this AGF directive is what the doctrine of necessity will warrant, because of involvement of the NJC and CJN, who is the head of the NJC, in the matters in the state. “If they take any step by directing any other CJ to swear in Wike, it will appear they have compromised their positions and acting subjudice, while the matter is in court of appeal,” he said.

But another legal practitioner and human rights consultant, Ken Atsuwete, asserted that the request by the AGF is dead on arrival, because the issue concerning the swearing in of the governor-elect in the state is purely constitutional, such that the executive, be it state or federal, has no role whatsoever to play.

He stressed that it is only the judiciary, like a court of law, that can give interpretation to Section 185 (2) of the constitution. “Not any member of the executive, particularly the Attorney General of the Federation or a state.

“That is why I am particularly touched and concerned, and all lawyers who know the law are also concerned, that the AGF will sit in Abuja and make a proclamation giving an order to a Judge. “No lawyer, nobody from the Ministry of Justice can give an order to a Judge, except a higher Judge, like CJN.

“For the AGF to have made such a proclamation, instructing or directing the CJ of Bayelsa to perform a swearing in ceremony in Rivers is the height of illegality. “It is one that lawyers are crying fowl against,” Atsuwete said.

He continued: “The question we are asking is this: Is it provided for in our constitution that the AGF should take on a judicial role when he is not a judicial officer? “Secondly, he is the Attorney General of the Federation and not the Attorney General of Rivers State.

Does his function extend to running the judiciary in Rivers State, where there is an Attorney General? “Thirdly, can he give the directives, vis-à-vis the swearing in ceremony, of the state government or an elected government, which is one that the constitution has provided for? “Fourthly, can he interpret the constitution the way and manner he has done?

“The big answers to these questions are no, no, no, no!” Atsuwete stated that in a bid to thwart what he described as “an act of illegality,” some lawyers have already concluded plans to seek an order from a court restraining the AGF from what he has done and restraining anybody from acting on his request, pending when a competent court of jurisdiction makes appropriate interpretation of Section 185.

According to him, some lawyers in the state would not entertain the action of the AGF by taking an action to oppose and ensure that that declaration does not take any effect whatsoever. “When we have a such a lacuna, the necessary thing is to go to court for interpretation.

The AGF, even if he is the chief law officer of the federation, has no right to take on a judicial role. “I am particularly worried that lawyers in Rivers are now selfishly divided. Most are not objective anymore; they are subjective.

They don’t play to legal reasoning anymore. That is why forget that the chief law officer of the state is different from a chief law officer.

“It is only a judicial officer that can make judicial pronouncement and it is only a judicial officers that can give a judicial pronouncement to a fellow judicial officer.

“Even the CJN cannot give a directive or an order if he is not sitting in a court of law, and while he is sitting in a court of law, he has to entertain a matter that concerns this issue. And it has to be one that concerns the interpretation of Section 185 (2) or any aspect of the constitution.

“If we don’t have such situation at hand, whatsoever anyone does is a nullity in law. What the AGF is doing right now is a nullity in law.”

He likened the AGF to a meddlesome interloper, saying even if anyone wants to attribute the request to doctrine of necessity, the doctrine of necessity ought to have been backed by law. He recalled that when then Vice President Goodluck Jonathan was to be made acting President, he went to the National Assembly and they deliberated on the issue of doctrine of necessity and passed it into law.

Atsuwete contended that no one could say that the doctrine of necessity should play out when it has not been taken to the state House of Assembly, deliberated by the of Assembly and passed into law by it. He emphasised: “Right now, the way out is an interpretation from the court of law. It is a constitutional matter.

The Federal High Court is there. Parties should approach the court. Constitutional matters are resolved by federal high courts.

“Lawyers, who are taking the matter to the court should apply for accelerated hearing, so that a decision can be made before May 29. “It is not for the President, the AGF or anyone to make a judicial proclamation when they have not approached the court of law.

“It is only the Federal High Court that can give appropriate constitutional interpretation to what needs to be done in this circumstance. No one else. “Adoke is about to leave. This is one act that will further denigrate the judiciary if it is allowed to stand.

“I think this order is dead on arrival.” Prior to Adoke’s contentious intervention, some lawmakers in the state had mulled the idea of adoption of the doctrine of necessity by announcing acting CJ or President Customary Court of Appeal to swear in Wike.

A lawmaker, who pleaded anonymity, told The Guardian that the initiative was part of efforts to redeem a bad situation, as Rivers cannot afford to be allowed to remain in a state of confusion because of the conflict between the executive and the NJC over the choice of who becomes the substantive CJ of the state. “The adoption of a doctrine of necessity, which some of us have mulled, is an attempt to save a bad situation.

“We will rely on relevant sections of the constitution to pronounce someone, like the President Customary Court of Appeal, to swear in the governor-elect, as actions of the legislature remain legal until challenged.

“The legislature is empowered to make laws and we must rise to our responsibility to intervene, because the judiciary is in comatose and the legislative arm must rise up to resurrect it,” he said.

The choice of the President Customary Court of Appeal, he disclosed, is based on the fact that Justice Okocha, who the NJC had recommended to the governor, but who he rejected, had filed a suit at the Federal High Court, Port Harcourt seeking to restrain the governor and NJC from appointing anyone, except her, as the CJ, being the most senior Judge in the state judiciary.

The source said a motion would be presented on the floor of the House for the adoption of the doctrine of necessity to save the state from the current impasse caused by the protracted face-off between the state executive and the NJC. He further stated: “The only hurdle before the governor-elect is just for a Judge to administer the Oath of Office.

If we adopt the doctrine of necessity, just as the National Assembly did to pave way for Jonathan to act as President in the absence of late President Umaru Musa Yar’Adua, anyone can go to court to challenge it later.

“Rivers cannot afford to be at standstill,” he said. On his part, APC’s state publicity secretary, Chris Finebone, said though the AGF has spoken, the party was sure that his directive is as unconvincing as it can be, with regard to the section of the constitution he cited to justify his action.

According to him, Adoke knows he has been goaded into an action that he neither believes in nor convinced is right. “We knew all along that this day will come.

Perhaps, the game has just begun, because Section 185 [2] of the constitution that he cited in no way suggests or implies that it is the AGF that should make such appointment or issue such directive. “The APC rejects the directive in its entirety.

Nothing in any part of the constitution suggests that AGF can direct or order any CJ of any state in Nigeria in any direction whatsoever.

“Therefore, the order or directive by Adoke to the CJ of Bayelsa to swear in Wike as the governor of Rivers State on May 29 is illegal, null and void,” Finebone insisted.

But the Peoples Democratic Party (PDP) state Chairman, Felix Obuah, accused the state government of attempts to thwart Wike’s swearing-in on May 29 through a suit filed at the Federal High Court in Owerri, presided over by Justice S. M.

Shuaibu. Obuah said the Judge dismissed the case, by the virtue of provisions of the Federal High Court 2011 Notice on the venue of filing suits and the territorial jurisdictional limits of the Judicial Divisions of the Federal High Court enacted by the Chief Judge of the Federal High Court, pursuant to Section 19 of the Federal High Court Act.

He said the Judge ruled that Port Harcourt, and not Owerri, ought to have been the place in which the suit ought to have been filed.

“The Owerri Federal High Court judgment, clearing way for the inauguration of the PDP government and swearing-in of Wike on May 29 has further strengthened our hope and conviction that no matter the distractions and destructive tendencies of the outgoing administration, the PDP government, under Wike, will still succeed.

“The PDP is, therefore, of the view that rather than wasting its time and Rivers peoples’ resources on fruitless court cases and non-productive actions aimed at thwarting the smooth inauguration of the incoming government, Amaechi is better advised to channel his energies in joining the administration of Wike in building a united Rivers State,” he said.

He urged Amaechi and the APC to allow peace to reign in Rivers by not distorting the anticipated smooth handover of government to the PDP in the state on May 29, which is sacrosanct, saying the party cannot wait to deliver to the people what it promised them and many more after being inaugurated. For now, it remains unclear how the situation would play out ahead of Friday next week.