LAST week’s decision of the National Judicial Council (NJC) to recall the suspended President of the Court of Appeal, Justice Isa Ayo Salami, has continued to generate mixed reactions.

Not only did the NJC which found Salami guilty of misconduct reverse itself in the most absurd manner, the recent recommendation is likely to put President Jonathan in a very unpleasant spot.  While many people insist that Jonathan should adopt the recommendation and reinstate Salami as a matter of procedure, others urge restraint based on the issues that brought about his suspension last August.

Prior to Justice Salami’s suspension, the feud between him and the former Chief Justice of Nigeria, Justice  Aloysius Katsina-Alu, had engendered bad blood and a deep division among the nation’s  topmost judicial officers.  The Justices had, through the instrumentality of the NJC, sought an administrative resolution of the quarrel, the process  that eventually found Salami guilty of misconduct, suspended him from office and recommended to the President that he should be compulsorily retired.  Not only was Salami serving the suspension accordingly at that time, Jonathan had acted to ensure that the vacancy created by his exit was filled in acting capacity.

However, at its  meeting  in Abuja last week, the members had voted in favour of recalling Justice Salami who has been on suspension since last August and unanimously agreed that a letter be written to President Goodluck Jonathan to reinstate him. Though Salami’s conduct as a senior judicial officer had in the months before that action, generated so much controversy, Jonathan’s action was always going to be dressed up in political colours.

Justice Salami is alleged to have engaged in telephone calls with politicians to influence the outcome of election petitions in Osun and Ekiti states where Olagunsoye Oyinlola and Segun Oni, both of whom belong to the President’s party, contested. It was not surprising therefore, when members of opposition parties alleged, unreasonably, that Jonathan had a personal score to settle with Justice Salami. To suggest therefore that the President’s decision in the issue is influenced by ulterior motives is to be uncharitable, to say the least.

Salami’s ill-mannered tirades against Katsina-Alu over the Sokoto governorship case was unbecoming of a top judicial officer, and even before the NJC stepped in last August, many  were already wondering what his future held in the judiciary.  Every effort to settle the debacle was made, including a soft-landing offered by the Justice Ibrahim Auta Panel which asked Salami to apologise within one week to the former CJN, Justice Aloysius Katsina-Alu, and recommended that the NJC only issue him a letter of warning thereafter.  Salami had refused to oblige, rather he had evaded service by the NJC Executive Secretary, Halilu Danladi, and gone to court before the expiration of the deadline for the apology.

When eventually the NJC hammer fell, President Jonathan had no choice than to approve the appointment of Justice Dalhatu Adamu to act as the President of the Court of Appeal.  Relying on section 238(4) of the 1999 constitution of the Federal Republic of Nigeria as amended, the President had acted on the recommendations of the NJC in a letter dated 18th August, 2011, that Justice Salami be compulsorily retired for misconduct in accordance with the provisions of Section 292 (1) (a) (i) of the 1999 Nigerian Constitution, and Rule 1 (1) of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria.

Though this action elicited stringent criticism from certain quarters, many tended to agree that the President’s decision was a constitutional duty he had no choice than to perform.  If many faulted the actions of the National Judicial Council (NJC) leading to Salami’s suspension, the latest decision to recall him—in spite of the grievous allegations on which he was found guilty– is downright ridiculous.  The question is, should the President sweep all these under the carpet?  No, he must exercise restraint.

Besides, there are several cases involving Salami which are pending in different courts, including those triggered by Justice Salami himself shortly after the NJC Committee’s verdict against him in which the President himself, through the Attorney General of the Federation, is a defendant.  The cases will definitely be jeopardised by any hasty action.

Such statements for his reinstatement, coming from supposedly enlightened quarters, is hardly guided by the provisions of the Nigerian constitution which the President swore to protect and uphold when he took the Oath of office on 29th of May, 2011, or for that matter, Jonathan’s personal antecedents as a stickler for the rule of law.  President Jonathan has not only restrained himself from commenting on the Salami/NJC issue, he has been true to his policy of not interfering, directly or indirectly, in the affairs of the other two distinct arms of government, all of which the Nigerian Constitution guarantees their distinct, separate powers.

The doctrine of separation of powers precludes the President from interfering with the process that resulted in Salami’s suspension but he clearly has discretion in appointments and reinstatements, especially as this one involves misconduct. Opinions may differ on this issue but the provisions of the constitution must prevail against sentiments and other exigencies.  Therefore the President’s decision on the recent recommendation must not be interpreted from the narrow standpoint of personal interests, but from its wider implications for the nation.  The NBA and others that have risen in strong support of Salami should therefore be  restrained from the unnecessary haste and undue inflammation of passion.

So what should the President do in the circumstances?  For sure, President Jonathan has the discretion to either act on or discountenance the latest recommendation of the National Judicial Commission, in the light of the plethora of allegations and controversies surrounding Salami.  Every right-thinking Nigerian expects that he exercises restraint; he must not be stampeded into taking a precipitate action that may be faulted in future. He should therefore stay action on the NJC recommendation until the determination of the cases that are pending in court.

Granted that the constitution provides for separation of powers among the three arms of government, the President who is vested with the power to make the final appointment must be guided by the national interest in arriving at a decision.  As it is, Salami’s recall will ultimately do the judiciary  more harm than good, and portray the nation’s name in bad light.

Mr. SHAMISU SHUAIBU, a policy analyst,  wrote from  Abuja.