By Ikechukwu Nnochiri
…Dares Jonathan on Adamu’s re-appointment as Ag. PCA
Undisputedly, the most discussed judicial officer in Nigeria today happens to be the suspended President of the Court of Appeal, Justice Isa Ayo Salami.
However, the disputable fact remains whether he will be able to reclaim his position, about a year and three months after he was unceremoniously axed from office by a mishmash of overt and covert legal cum political forces.
Like the sacrificial lamb, he had to go to pave way for the entrance of the biblical comforter, coming at a point when he wielded enormous constitutional powers, enough to sack a sitting President from office.
It would be recalled that few days before he was ousted from office, Justice Salami, superintended over a 5-man panel of Justices of the appellate court that entertained the petition that sought to annul the April 16, 2011, general election that brought President Goodluck Jonathan to power.
Dissatisfied with the election results that were credited to President Jonathan by the Independent National Electoral Commission, INEC, opposition Congress for Progressive Change, CPC, on May 8, 2011, entered their petition before the tribunal headed by Salami.
Despite spirited effort by a team of 10 Senior Advocates of Nigeria, SAN, that were engaged by President Jonathan to convince the tribunal to throw out the petition, Justice Salami, on July 14, 2011, dismissed every objection that was raised against the suit, stressing that “terminating the petition at that stage will be tantamount to burying contention of the litigants on the ground of technicalities.”
Besides, Salami inadvertently stepped on big toes when he directed INEC to grant the petitioner full access to the biometric database created by the Direct Data Capturing machines, as well as all the ballot papers used during the April 16 presidential poll, a decision that obviously did not go down well with those within the corridors of power.
As if that was not enough, Salami, on August 15, 2011, gave President Jonathan 14 days to respond to CPC’s application that its own presidential candidate, General Muhammadu Buhari (Rtd), be declared as the bona-fide winner of the presidential contest.
Remarkably, that was the last order Salami made as the PCA, as the NJC, after a rowdy session it had on August 18, suspended him from office over alleged judicial misconduct, a move the CPC, at that time, insisted was orchestrated by the ruling Peoples Democratic Party, PDP, with a view to planting a stooge to take over the affairs of the election petition tribunal.
As expected, on September 6, a reconstituted panel at the tribunal dismissed CPC’s application and further authorized INEC not to allow the petitioner to take copy of any of the ballot papers used in the conduct of the presidential poll. That indeed was the beginning of Salami’s seemingly unending travails!
Even though the decision to send him out in the cold, met fierce opposition from some judicial egg-heads sympathetic to his plight, however, after a voting exercise that saw those against him, securing marginal victory, the NJC, ordered him to hand over the affairs of the appellate court to the most senior judicial officer at the court, a mantle that subsequently fell on the current acting PCA, Justice Dalhatu Adamu.
The council, via a statement signed by its Director of Administration, Mr. E.I. Odukwu, maintained that Salami acted contrary to Rule 1(1) of the Code of Conduct for Judicial Officer of the Federal Republic of Nigeria.
Meanwhile, anticipating a gang-up against him, Salami, filed a suit before the Abuja Division of the Federal High Court, wherein he exposed how a former Chief Justice of Nigeria, CJN, Justice Aloysius Katsina-Alu pressurised him to pervert justice in a gubernatorial election involving Sokoto state.
Nevertheless, though the immediate past CJN, Justice Dahiru Musdapher, who Salami had insisted was privy to the meeting where Justice Katsina-Alu begged him to compromise justice, commenced the process for the embattled PCA to regain his position, however, the presidency, in an obvious ‘pay-back-move’, adduced reasons why that could not happen.
Making the position of President Jonathan known, the Attorney General of the Federation, AGF, and Minister of Justice, Mohammed Bello Adoke, SAN, on May 22, 2012, maintained that Jonathan would not recall the suspended PCA pending when the disposal of the case in court, adding that “no responsible government will overreach the powers of the court, this government is determined to do the right thing.”
Meantime, recent events have shown that the presidency may have lost its grip on the top echelon of the judicial hierarchy, especially as it relates to the issue of Salami’s re-instatement and the re-appointment of the Acting PCA, Justice Adamu.
It would be recalled that President Jonathan recently renewed the appointment of the acting PCA for the 5th time, a move the NJC, under the leadership of the first female CJN, Justice Mariam Muktar, has declared illegal.
Specifically, Jonathan drew his powers from section 238(4) of the 1999 constitution, which states that: “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.”
Section 238 (5) however stipulates that: “Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of sub-section 4 of this section shall cease to have effects after the expiration of three months from the date of such appointment, and the President shall not reappoint a person whose appointment has lapsed.” Thus, except for the caveat in sub-section (5) of that portion of the constitution, the first tenure of the acting PCA ought to have expired in November, 2011.
Meanwhile, in a bid to atone for the misdeed it occasioned against Salami who is due to retire on October 13, 2013, the NJC, in an affidavit it filed in support of a suit that was entered by eleven human right activists, maintained that Jonathan was bereft of the constitutional powers to stop it from reinstating the suspended PCA.
In its written address, NJC, argued that by virtue of section 238(5) of the 1999 Constitution, Jonathan, lacked the powers to reappoint Justice Adamu as Acting PCA after the expiration of three months from the day Salami was ousted from office, stressing that the action amounted to an act of illegality since such recommendation never emanated from the Council as required by the law.
The legal body contended that it has the exclusive constitutional powers to reinstate Justice Salami back to his position, “without recourse of any sort to the President.”
According to NJC, “we submit that the exercise of disciplinary power and recall of a suspended Justice of the Court of Appeal is exclusively vested in the NJC by the constitution.
“By virtue of the combined provisions of sections 153, 158(1) of the constitution, and the NJC’s power to exercise disciplinary control over judicial officers contained in paragraph 21(1) of the part 1, third schedule of the constitution, the council is clothe with the power to suspend and recall the 4thDefendant (Salami) without any recourse to the president (the 1stDefendant).
“Section 158(1) of the constitution provides that “in exercising its power to make appointment or to exercise disciplinary control over persons, the NJC shall not be subject to the direction or control of any other authority or persons. It stated that the only instances the 3rdDefendant exercises its powers in conjunction with the President is in appointment and removal of judicial officers and not extend to the 3rdDefendant’s disciplinary control over the judicial officers.
Basically, the litigants are among other things, seeking a declaration that the refusal of the NJC to implement the recommendation of its 3-man panel headed by Justice Muhktar, before she became the CJN, urging the recall of Justice Salami, constituted a breach of the constitution of the Federal Republic of Nigeria.
Listed as 1stto 5thdefendants in the suit were President Jonathan, the AGF, NJC, Justice Salami and the Acting PCA, Justice Adamu.
However, the Acting PCA, Adamu, has filed his own affidavit against the suit, urging the high court to disregard the position of the NJC.
Presiding Justice Adamu Bello has adjourned the case till December 4, to enable all the parties to file and adopt their written arguments.
As the politics of suspension rages and as Nigerians await the reaction of President Jonathan to the eleventh-hour ‘U-turn’ made by the NJC, the sore fact remains that nation’s judiciary is currently a house divided against itself.