By Emmanuel Majebi
The recent removal of the Chief Judge of Kwara State Justice Raliat Elelu- Habib has indeed sent a chill down many spines in the Judiciary.
Not in the least because she was removed at all, but in the rather break neck speed pace with which her removal procedure was concluded by the Governor of Kwara State and the Kwara State House of Assembly. There has been an eerie silence from the Nigerian Bar Association over this removal and one cannot help wondering why?.
Is it because the Learned Chief Judge had a quarrel with the Nigerian Bar Association in Ilorin which led to a lawyers boycott of the Kwara Courts and which ultimately was one of the reasons cited for her unceremonial removal?
Is the NBA not inadvertently being an accomplice in the creation of a Frankenstein Monster that has the ability to consume the entire Judiciary and intâ€™s independence? Even if the Chief Judge was guilty as charged should she not have been given every opportunity to get a fair trial?
I had cause in this column a few weeks back in a piece titled â€œYour Lordship How secure is thy tenureâ€ to conclude that the provisions for the removal of judges in the ConstitutionÂ viz section 292 (1)(a)(i)(ii) though on the face of it seems to clothe the Judicial officer with security of tenure, but in the real practice of it the section accords the Judicial officer no real security of tenure and urged that the section be amended.
I am suggesting that in the proposed amendment to our Constitution we should adopt with possible variations (if need be) the procedure provided for impeachment of judicial officers provided for in Babangidaâ€™s ill fated 1989 Constitution which never saw the light of day because of the annulment of the 1993 election.
The reasons for enactment of the novel judicial impeachment procedure in the 1989 Constitution was the abuse of the impeachment procedure (the exact replica of section 292 of the 1999 Constitution) of judicial officers by politicians under the 1979 Constitution.
In my opinion the 1989 Procedure is as yet the best effort since Nigerian independence to provide the Judicial officer with security of tenure. It is indeed sad that the drafters of the 1999 Constitution rather than adopt the procure for removal of judges under the 1989 Constitution chose to return us back the much abused 1979 Constitutional provisions.
The 1989 Constitution provided for 2 separate procedure for removal of judicial officer the first one provided for in section 276 covers the Chief Justice of Nigeria and the second one provided for in section 277 provides for the removal of all other judicial officers other than Chief Justice of Nigeria and Chief Judges of the states.
In order to fully appreciate the provisions of these sections, there is a need to state out these sections verbatim.
Section 276 of the 1989 Constitution provides that: (1) The Chief Justice of Nigeria or the Chief Judge of a state shall not be removed from office or from his appointment before the age of retirement except in the following circumstances; a. In the case of the Chief Justice of Nigeria by the President acting on an address supported by 2/3rd majority of the Senate.
b. In the case of the Chief Judge of a State by the Governor acting on an address supported by 2/3rd majority of the House of Assembly of that State praying that he be so removed for his inability to discharge the functions of his office or appointment(whether arising from infirmity of body or mind) or for misconduct or for the contravention of the code of conduct
(2) An allegation ofÂ misconduct or inability to discharge the functions of his office or the contravention of the code of conduct against the Chief Justice of Nigeria or a Chief Judge of a State as the case may be shall be made in writing addressed o the President of the Senate or the Speaker of the House ofÂ Assembly of a state, as the case may be, who shall thereafter constitute a panel to be called the Investigating Panel ; consisting of five members, all of whom shall be persons of unquestionable integrity and two of who shall be non members of the Legal Profession to investigate the allegations. (3) Where after investigation as provided for in subsection (2) the allegation has not been proved no further proceedings shall be taken in respect of this matter.
(4) Save in the case of the non members of the Legal Profession, a person shall not be qualified to serve as Chairman or member of the investigating panel unless in the case of the Chief Justice of Nigeria,Â has served as Chief Justice of Nigeria, Justice of the Supreme Court or he is a Legal practitionerÂ and who has been so qualified for a period of not less than 15 years or unless in the case of the Chief Judge of a state, he has served as Chief Justice of Nigeria, Justice of the Supreme court, President or Justice of the Court of Appeal, Chief JudgeÂ or Judge ofÂ High Court of a State, Grand Khadiâ€¦president or Judge of the Customary Court â€¦.or he is a Leal Practitioner and has been so qualified for a period of not less than 12 yearsâ€¦â€ provided that:
i. In the case of the Chief Justice of Nigeria, a person who has served as Chief justice of Nigeria or who is a legal practitioner and who has been so qualified for a period of 15 years shall be Chairman of the Investigating Panel. ii. In the case of a chief Judge of a State, a person who has served as Chief Justice of Nigeria, justice of the Supreme Court, president or justice of the Court of Sppeal, a Chief Judge or Legal Practitioner of not less than 12 years shall be Chairman. (5) The Chief Justice of Nigeria or the Chief Judge of a State against whom an allegation of inability to misconduct or contravention of the code of conduct has been made under this section shall be entitled to defend himself in person or by a Legal practitioner of his own choice before the investigating panelâ€¦â€
(6) The Investigation panel shall at the conclusion of the investigation in respect of the Chief Justice of Nigeria.