Recently, lawmakers in the Benue State House of Assembly recommended the sack of the state chief judge, Justice Maurice Ikpambese, over alleged misappropriation of funds. The National Judicial Council (NJC) overruled the sack, but the assembly is insisting that the chief judge must go. SUNDAY EJIKE writes on the tango and how similar experiences in the past ended.
Benue State House of Assembly last week recommended the immediate removal of the Chief Judge of Benue State, Justice Maurice Ikpambese and called for him to be replaced by the next most senior judicial officer, in acting capacity.
The recommendation attracted the immediate reaction of the National Judicial Council {NJC}, the body established by the constitution to carry out disciplinary actions against judges and judicial officers, involved in any form of professional misconduct.
The move to terminate the state chief judge arose from the alleged uncovering of issues of financial misappropriation and abuse of office leveled against him, by the executive arm, through the state’s Ministry of Justice and Public Order.
The executive arm moved for the removal of the embattled CJ, pending what it described as “an honest, independent, hitch-free, transparent and diligent investigation into the allegations” by the NJC.
It subsequently tabled the request before the lawmakers, who in granting the executive’s prayers, recommended the removal of the CJ for “gross violation of ethical code of conduct for judicial officers”.
On the strength of the allegations, the Benue Assembly also passed a resolution directing the state governor, Hyacinth Alia to remove the chief judge from office.
During the debate in a plenary session presided by the speaker, Hyacinth Dajoh, 23 out of the 31 members reportedly voted in favour of the removal of Justice Ikpambwese based on the report of the assembly.
The report read by the majority leader, Saater Tiseer, levelled allegations of misconduct against the chief judge, including misappropriation of funds.
It was, however, gathered that the embattled jurist was not invited to respond to the allegations levelled against him by the assembly.
Removal premature, unconstitutional —NJC
Worried by the constant usurpation of its disciplinary powers over erring judges, including heads of court, by state assemblies, the council again intervened to protect constitutional democracy, urging the state government to adhere to the provisions of the 1999 Constitution regarding the appointment, discipline, and removal of judicial officers in the country.
NJC, the highest judicial organ in the country, declared that the chief judge would remain in office until an investigation into the petition against him is concluded.
In a statement by its spokesperson, Mrs. Kemi Ogedengbe, the council said there are clear provisions of the constitution on the appointment and discipline of judicial officers, adding that the Benue State government and state assembly did not comply with them.
“Although the council had received a petition against Hon. Justice Maurice Ikpambese, that petition is yet to be investigated in line with the council’s investigation procedure and the principles of fair hearing.
“As far as the council is concerned until the complaint is investigated and deliberated upon by it, Hon. Justice Maurice Ikpambese remains the Chief Judge of Benue State.
“This action is not only unconstitutional,” the statement continued, “it violates the principles of separation of powers and fair hearing which are necessary for the sustenance of democracy.
“The provisions of the Constitution of the Federal Republic of Nigeria 1999, as amended, clearly states that, a chief judge of a state can only be removed on the recommendation of the NJC, which is responsible for disciplinary actions against judicial officers”.
The question of precedent
Since the enthronement of democracy in 1999, NJC has consistently tutored state governors and their houses of assembly that they cannot appoint or remove a chief judge without its approval, but this constitutional provision has often been flouted.
The strongest judicial pronouncement to vindicate NJC came from the Supreme Court in May 2009 when then-governor of Kwara State, Dr. Bukola Saraki, sacked the state chief judge, Justice Raliat Elelu-Habeeb, from office over alleged corruption, misconduct, as well as high-handedness in her handling of the crisis in her judicial division.
Rather than notifying the council, Saraki wrote a letter to Kwara State House of Assembly, complaining about the chief judge and the need to remove her from office.
Upon receiving the governor’s letter, it took the lawmakers just 45 minutes to deliberate on the issue and give a unanimous approval to the governor’s request.
Justice Elelu-Habeeb then went to the federal high court in Ilorin, which ordered that she should be reinstated. But the state government appealed the judgment and won. Consequently, Justice Elelu-Habeeb approached the Supreme Court.
In 2012, a seven-man panel of the apex court, including Justices Walter Onnoghen, Christopher Chukwumah-Eneh, Muhammad Muntaka-Coomassie, Olufunmilola Adekeye, Mary Peter-Odili and Olukayode Ariwoola, in a unanimous decision, declared all the actions taken by the Kwara State Government and the Kwara House of Assembly on Justice Elelu-Habeeb’s removal, a nullity.
Citing Section 271(1) of the 1999 Constitution, the apex court said: “It is not difficult to see that for the effective exercise of the powers of removal of a chief judge of a state by the governor and house of assembly, the first point of call by the governor shall be NJC. Although the governor of a state has been vested with the power to appoint the chief judge of his own state, that power is not absolute.”
Then-CJN, Justice Mahmud Mohammed who led the panel further held, “NJC is the body that has been assigned the duty and responsibility of recommending to the governors of the states of the federation suitable persons for appointments to the offices of chief judges of the states and other judicial officers in the states. The same NJC is also empowered under subparagraph (10) of paragraph 21 to recommend to the governors of the states the removal from office of the chief judges of the states and other judicial officers of the states, and also to exercise disciplinary control over such chief judges of the states and other judicial officers of the states.
“Therefore, from these very clear provisions of the constitution, which are very far from being ambiguous, the governors of the states and the houses of assembly of the states cannot exercise disciplinary control touching the removal of chief judges of states or other judicial officers in the states.”
Composition of NJC
NJC is one of the federal executive bodies created by virtue of Section 153 of the 1999 Constitution, to insulate the judiciary from the whims of the executive and guarantee its independence, which is sine qua non of democratic government.
The umbrella body for the judiciary was equally vested with powers and functions, which include the disciplinary responsibility being regularly challenged by state executive and legislature.
By the provision of Paragraph 20 of Part One of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria, {as amended}, the NJC comprises the following members, the chief justice of Nigeria (CJN) who shall be the chairman; the next most senior justice of the supreme court who shall be the deputy chairman; the president of the court of appeal; five retired justices selected by the CJN from the supreme court or court of appeal; the chief judge of the federal high court; the president, National Industrial Court; five chief judges of state to be appointed by the CJN from among the chief judges of states and of the high court of the Federal Capital Territory, Abuja in rotation to serve for two years; one grand kadi to be appointed by the CJN from among grand kadis of the sharia courts of appeal to serve in rotation for two years; one president of the customary court of appeal to be appointed by the CJN from among the presidents of the customary courts of appeal to serve in rotation for two years; five members of the Nigerian Bar Association (NBA) who are qualified to practice for a period of not less than 15 years, at least one of whom shall be a Senior Advocate of Nigeria (SAN), appointed by the CJN on the recommendation of the national executive committee of NBA to serve for two years and subject to re-appointment, 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; and two persons not being legal practitioners, who in the opinion of the CJN are of unquestionable integrity.
Duties
The duties and role of NJC are also provided for by the provision of Paragraph 21 of Part One of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended; which provides that; the council shall have the power to, recommend to the president from among the list of persons submitted to it by the Federal Judicial Service Commission (FJSC) for appointment to the offices of CJN and other members of the Bench.
The council is also vested with the power to recommend to the president and state governors the removal from office of judicial officers and to exercise disciplinary control over such officers, collect, control and disburse all monies, capital and recurrent, for the judiciary, advise the president and governors on any matter pertaining to the judiciary as may be referred to the council by the president or the governors, appoint, dismiss and exercise disciplinary control over members and staff of the council and to control and disburse all monies, capital and recurrent, for the services of the council.
NJC also deals with all other matters relating to broad issues of policy and administration and the secretary of the council, who must be a lawyer shall be appointed by NJC on the recommendation of the Federal Judicial Service Commission.
Section 158 (1) of the Constitution has clearly provided that NJC shall not be subject to the direction and control of any other authority in exercising its power to make appointments or to exercise disciplinary control over judicial officers.
NBA, Falana weigh in
The Nigerian Bar Association also faulted the resolution by the Benue State House of Assembly directing Governor Hyacinth Alia to remove Justice Maurice Ikpambwese as the state chief judge.
NBA, in a statement jointly signed by its president, Afam Osigwe (SAN), and general secretary, Mobolaji Ojibara, described the resolution as inexcusable and a breach of the constitution.
It stressed that the house of assembly of any state lacks the power to remove a chief judge without the involvement of NJC and viewed with contempt the purported resolution passed by the Benue State House of Assembly directing Governor Alia to remove the embattled judicial officer.
According to the umbrella body of lawyers in the country, the resolution is not only unjustifiable but violates the spirit and intent of the constitution of the Federal Republic of Nigeria.
“The removal of a judicial officer, especially one occupying the esteemed position of chief judge, must adhere strictly to due process as outlined in our constitution. Any deviation from this process is a direct affront to the rule of law and poses a significant threat to our democracy.
“It is laughable for the house of assembly of any state to purport to have the power to discuss, much less recommend, the removal of a chief judge without the involvement of NJC”, the NBA said.
Human rights lawyer, Femi Falana, SAN, in his reaction, asked NBA to sanction the lawyers who are members of the Benue State House of Assembly.
Falana argued that NBA was right to condemn the illegal resolution of the assembly adding that, the association needs to go a step further to recommend the prosecution of the lawyers involved, to the Legal Practitioners Disciplinary Committee (LPDC) and the Body of Benchers (BoB).
Citing a decision of the Supreme Court, the senior advocate noted that it is still the law that a chief judge of a state cannot be removed from office without a prior investigation conducted by NJC and asked the leadership of the legal profession to follow the examples of other democracies by sanctioning lawyers involved in using their official positions to undermine democracy.
Assembly fires back
Meanwhile, the Benue State House of Assembly has criticised the national leadership of NBA over its recommendation for the removal of Justice Ikpambese.
The Majority Leader of the Assembly, Santer Sateer accused the Bar leadership of failing to consider the constitutional provisions before condemning the assembly’s decision, adding that the house acted within its constitutional powers under Section 292(1)(a)(ii) of the 1999 Constitution, which empowers a state assembly to recommend the removal of a chief judge.
Citing the relevant section, Sateer explained that the constitution allows for the removal of a chief judge, grand kadi of a Sharia Court of Appeal, or president of a customary Court of Appeal by the governor, acting on an address supported by a two-thirds majority of the house of assembly.
He said, “It is most appalling that Afam Osigwe (SAN) and Dr Mobolaji Ojibara failed to consider these clear constitutional provisions before issuing their poorly-researched and erroneous press statement condemning the Benue House of Assembly.”
He further clarified that the house did not recommend Justice Ikpambese’s removal as a judicial officer but as the Chief Judge of Benue State, in accordance with the law, explaining that, “The constitution is clear and unambiguous, and the Benue State House of Assembly acted within the confines of the law and in the best interest of Benue State, which is its primary constituency”.
He emphasised that the matter of removing Justice Ikpambese as a judge would be referred to the NJC as required by law and that, the assembly only recommended his removal as chief judge, as permitted under Section 292(1)(a)(ii) of the 1999 Constitution.
Joining issues, a group known as the ‘Benue All Progressives Congress Elders’ Forum expressed support for the Benue State House of Assembly’s recommendation to remove the CJ.
Its spokesperson, Senator Barnabas Gemade said the party elders fully backed the assembly’s resolution for the chief judge’s removal.
The party elders also commended the house for suspending 13 members for allegedly ridiculing it after its resolution to suspend the CJ.
Gemade said: “After a thorough review of the circumstances surrounding the chief judge’s removal, it is clear that the Benue State House of Assembly acted within the constitutional framework outlined in Section 292(1)(a)(ii) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)”.
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