By Egufe Yafugborhi & Davies Iheamnachor
Despite an ongoing strike by the parliamentary staff, which has left gates of the Rivers State House of Assembly shut for over a week, House members found a convergence to confirm Justice Simeon Amadi as the next Chief Judge of the state.
With the lawmakers nod concluding the process for selection of Governor Nyesom Wike’s choice nominee as CJ, any moment from now, Justice Amadi will be announced as Rivers substantive CJ, as his soon to be predecessor, Justice Adanma Iyayi-Lamikanran, will retire from active service in May 2021.
As in the era of Rotimi Amaechi as governor in the twilight of his government, the realisation that Wike overlooked the most senior judge of the Rivers House High Court at the moment, Justice Joy Akpughunum, in choice of next CJ has divided lawyers in the state.
While it has not gone down well with some lawyers, particularly a section of the Rivers bar led by John Owubokiri, Secretary, Nigeria Bar Association, NBA, Port Harcourt Branch, another group of lawyers, under Admiralty Lawyers Society of Nigeria, hailed the process.
The lawyers under the umbrella of Concerned Rivers Lawyers were distraught that the National Judicial Council, NJC, approved Wike’s first choice nominee through the state Judicial Service Commission, JSC, Amadi as CJ in a two-man list which completely alienated most senior judge, Justice Akpughunum.
The concerned lawyers in a statement, said, “Our shock flows from memories of the ugly crisis the judiciary was embroiled in the last time an adventurous governor stepped over the most senior judge of the High Court to appoint another judge rendering judicial services at the Customary Court of Appeal in Rivers State.
“The 2014 judiciary crisis which led to the closure of all Courts in Rivers was put in motion by then Governor Chibuike Amaechi’s refusal to swear in Justice Daisy Okocha, most senior judge of the High Court of Rivers State, who had also been cleared for appointment by NJC from a list of two nominees, Justice Okocha and Justice Peter Agumagu.
“Governor Amaechi jettisoned the recommendation of the NJC and swore in Justice Agumagu, plunging the judiciary into deep crisis, confusion and a period of uncertainty. As then Minister of State for Education at the time, Governor Nyesom Wike openly and actively supported the emergence of Justice Okocha as Chief Judge.
“When Governor Wike assumed office in 2015, he nominated the most senior judge of the High Court, the Justice Adanma Iyayi-Lamikanran for the office of CJ of Rivers to the NJC and she was duly cleared for appointment by the NJC. The Governor was hailed because he kept faith with a hallowed tradition even in that unlikely situation.
“The legal community in Rivers is at a loss as to why Justice Joy Akpughunum was excluded by the government of Rivers in the list of nominees sent by the state to the NJC for consideration in the succession to the Chief Judgeship of Rivers, a list that featured the Justice S. Iragunima, second most senior behind Justice Joy Akpughunum [she is now retired], Justice S. Amadi, third-most senior and Justice E. Teetito, fourth-most senior.
“A storm is brewing in Rivers State as a result of this indiscreet application of executive power to pervert judicial tradition. We lay no blames at the feet of the NJC but we humbly urge that august body to cause an investigation to be carried out to ascertain the reasons tradition was jettisoned for unknown factors and considerations.”
Differing, however, Admiralty Lawyers Society of Nigeria, through its National President, Angus Chukwuka, said, “Recently NJC acting pursuant to Section 271 (1) of the 1999 constitution recommended Justice Amadi for appointment as the Chief Judge of Rivers State upon the vacation of the office by the outgoing Chief Judge, Justice Iyayi Laminkanre. This recommendation by the NJC has been met with controversy.
“Some persons have argued that NJC was wrong to have recommended Justice Amadi since he is not the most senior serving judge of Rivers State. The arguments have been drummed so high as to be deafening and threatening to derail our judicial system.
“However, we find this argument illogical, distracting and disturbing. Section 271 (1) provides that the appointment of a person to the office of Chief Judge of a state shall be made by the governor of the state on the recommendation of the NJC subject to confirmation of the appointment by the House of Assembly of the state All that is required is that the person in question should be ten years or more post-call.
“There is no condition whatsoever for the person to be the most senior judge in the state. But in Section 271(4) of the same constitution, it is provided that where the office of a chief judge of a state becomes vacant or the chief judge is unable to function, then until another person is appointed to replace him the most senior judge in the state may be appointed as acting Chief Judge of the state.
“By virtue of subsection (5), the tenure of such acting Chief Judge is three months only. Invariably it is only with respect to appointment as acting Chief Judge that the appointment of most Senior judge in the state becomes mandatory. In the instant case, Justice Amadi has been recommended to be appointed as substantive chief judge of Rivers State and not as acting Chief Judge.
“Our view, therefore, is that the provisions of the constitution in this matter is clear and unambiguous.
It does not require a Professor of Law or semantics to unravel.
“We, therefore, call on the Rivers State governor and the Rivers State House of Assembly to take the necessary steps to ensure the due appointment and confirmation of Justice Amadi as the Chief Judge of Rivers State as Justice Iyayi bows out.
“We also call on all and sundry to desist from politicizing the process of appointment of the chief judge of Rivers State, particularly the recommendation of Justice Amadi by NJC. Such undue politicisation will clog the judicial system and derail our democracy.
“Also people are right to hold a contrary view but we must be careful not to overheat the system with views that are, in any event, contrary to the law.”
Don’t blame Wike, blame the law ― Higher King
Lawyer and rights advocate, OC Higher King, said the governor was in order in the way he had managed the process of appointing Amadi as the next CJ. Anyone having issues with the development should rather blame it on a law that gives the executive seeming undue privilege to decide judicial appointments.
“Constitutionally speaking, he (Wike) has not breached the 1999 Constitution as modified. Section 271 (1) unfortunately did not make it mandatory for a governor to appoint the most senior judge as CJ. It only made it mandatory when it comes to the the appointment of acting CJ, for three months and shall not be reappointed, in Section 271 (4).
“Why the disparity?
The answer is political. But the appointment of a CJ for state or Chief Justice of Nigeria at the federal level is more political than you can imagine.
The constitution gives the governor and the President the prerogative to pick and choose who they want to be CJ or CJN and it ought not to be so, but unfortunately, that where we found ourselves.
“Do you expect the governor or President to appoint a person they perceive not to be loyal to them and their parties since the constitution gives then the liberty of choice? Even I will not appoint such a person if I were a politician.
The constitution is the problem. Why should the governor or President be allowed to choose who they want when it comes to substantive CJ or CJN? The answer, not farfetched, is so as to control the judiciary.
“Matter of fact, the executive controls all other arms of government. The 1999 Constitution as modified is an executive made constitution, drafted and approved by that single-arm alone. Else, which arm of government does the Head of State belong to? The executive of course.
The Head of State assembled the people that purportedly drafted the constitution, later approved same, giving so much power to themselves.
“Until, the constitution is properly amended, removing all these enormous powers from the Executive, we shall, unfortunately, continue to grapple with situations like this. There is so much power arrogated to the Executive.”
Higher King refereed the relevant section in view. “271. (1) CFRN as Modified…”The appointment of a person to the office of Chief Judge of a State shall be made by the governor of the state on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.
(2) The appointment of a person to the office of a Judge of a High Court of a State shall be made by the Governor of the State acting on the recommendation of the NJC.
(3) A person shall not be qualified to hold the office of a Judge of a High Court of a State unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years.
(4) If the office of Chief Judge of a State 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 Governor of the State shall appoint the most senior Judge of the High Court to perform those functions.
(5)Except on the recommendation of the National Judicial Council, an appointment pursuant to subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment and the Governor shall not re-appoint a person whose appointment has lapsed.”
Further point of divergence from Amaechi’s case
Barring the constitutional interpretation and defence in favour of Wike, the governor, unlike the administration of incumbent Transport Minister, Rotimi, Amaechi, had all other relevant stakeholders in a position to allocate values on who becomes on the same page with him.
A senior lawyer told Vanguard: “In 2014, NJC didn’t approve Amaechi’s choice of Agumagu as Acting CJ. This time, not only did NJC approve Wike’s choice of Justice Amadi, even leaked classified report on character investigation by the Department of State Security, DSS, zeroed on Amadi as best suited while discrediting the most senior as not being loyal, not being a team player and being too close to retirement and all that.
“Some persons have termed the DSS report cooked to deny Akpughunum, who is highly regarded by a session of the Rivers Bar, who believe he was displaced on ethnic sentiments. It is left to be ascertained whether the harmony of agreement among Wike, NJC and the DSS investigators were induced by some sort of unseen forces.
We can’t argue on unsubstantiated allegations, but whether by crook or hook, the Governor beat the dissenting voices to this one. All the agitations are dead on arrival,” the senior lawyer said.