By AHURAKA ISAH

FOLLOWING the swearing in of Justice Peter Agumagu as a substantive chief judge of Rivers state by Governor Rotimi Amaechi on March 18, 2014, the National Judicial Council (NJC) had on March 25, 2014 placed him on suspension.

NJC said that Agumagu’s action amounts to gross misconduct on the grounds that the swearing in contradicted section 271 of the 1999 constitution which insisted that the appointment of a substantive chief judge of any state mandatorily requires the recommendation of the council.

As a judicial officer vested with onerous responsibility to interpret the constitution of the country, Agumagu is in the position to know that he cannot be sworn in as Rivers state chief judge in the absence of NJC’s recommendation.

Besides, the council viewed Agumagu’s action as capable of setting judicial anarchy in the system or in the national judiciary if it failed to act promptly and decisively to arrest the situation.

Substantive chief judge

The question is, can Governor Amaechi suo motu or solely appoint a chief judge under any condition without the recommendation of the council?   While swearing in Agumagu, Amaechi praised a Federal High Court   sitting in Porthacourt   for declaring that the nomination of Agumagu for substantive chief judge’s appointment was in order when he stated that, “Today, we recognise and accept in totality, the judgment of the Federal High Court and we say to you, congratulations——”

Taking the same question the other way round, can the court declaration become a substitute for NJC’s recommendation?

According to an Abuja base legal practitioner, Alasa Ismail, the judge ought to know that the council’s input, call it a recommendation or whatever can’t be traded for anything. If it is not available, no judge worth his or her salt ought to agree to be sworn in by any state governor.

”What a reasonable man ought to do after the court’s pronouncement and the subsequent resolution of the State House of Assembly rejecting the council’s recommendation is to advice the state governor and even insist to re-present him or her to the council. Doing otherwise amounts to violation of the provision of the constitution and a gross misconduct of the highest order, especially coming from a judicial officer placed on the position to interpret and protect the same constitution”, Alasa said.

Coming to the main thrust of this discourse, is NJC right by placing Agumagu on suspension before issuing him a query to defend his action?

This brings us to the functions of a state chief judge which is primarily the administration of justice in the state. The chief judge of a state is in the position to post judges to courts, assign cases to judges including him, in other words, he presides over some matters too.

But it is trite law that ‘’you can’t place something on nothing”. According to NJC, the appointment of Agumagu as chief judge runs contrary to the provisions of section 271 of the 1999 constitution which stipulates that a state governor must appoint a Chief Judge “on the recommendations of the NJC”. The swearing in of Agumagu by Governor Amaechi is a faith accopli. Since any action that offends the provisions of the constitution is a nullity, so the bye-products of the same action.

Agumagu’s appointment

If Agumagu’s appointment as chief judge without the council’s recommendation is a nullity, whatever he does on the seat including cases he assign to other judges, posting of judges to courts and the judgements he deliver while on that seat are null and void.

NJC which is chaired by the Chief Justice of Nigeria and constituted by other justices of the Supreme Court, Court of Appeal, some chief judges of high courts, retired judges and some senior members of the bar should be capable of estimating the collateral damage Agumagu’s swearing shall vest on the judiciary.

According to an Irish statesman and a former member of the House of Commons of Great Britain, Edmund Burke had warned that ”the only thing necessary for the triumph of evil is for good men to do nothing”.

The council cannot fold its arm irresponsibly and watch anarchy to begin to seep into the judiciary, all in the name of so-called political expediency. Invariably, Agumagu’s suspension was meant to arrest or prevent judicial anarchy.

The Public Civil Service Rules (2008 Edition) as contained in the Federal Republic of Nigeria Official Gazette No.57 of August 25, 2009, vol.96 (Government Notice N0.278) states at Rules No. 030406, ‘’suspension shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties pending investigation into the misconduct”

The council however relied even on the provisions of the constitution to suspend Agumagu when it stated in its press release dated March 26, 2014 signed by the acting director of NJC that, “In the meantime, Council in exercise of its powers under paragraph 21 (d) of Part 1 of the Third Schedule of the 1999 Constitution, has suspended Justice P. N. C. Agumagu from office as a judicial officer with immediate effect,”

The same council and the presidency relied on the extant laws while suspending former Court of Appeal president, Justice Ayo Isa Salami on August 18, 2010 from office for allegedly for a breach of his oath of office or ethical misconduct. NJC fell back on the same laws to suspend Justice Abubakar Talba on April 26, 2013 following the findings by the council that he did not exercise his discretion judicially and judiciously with regard to the sentences he passed on Mr John Yakubu Yusuf who was on trial for embezzling N30 billion police pension.

Even when President Goodluck Jonathan suspended Mallam Sanusi Lamido Sanusi as governor of the Central Bank of Nigeria on February 19, 2014, he relied on the same extant laws by saying that Mallam Sanusi should hand over   to Alade who will serve as Acting Governor until the conclusion of on-going investigations into breaches of enabling laws, due process and mandate of   the CBN.

In 2010, the main stakeholders in the judiciary held that NJC was wrong for recommending Salami’s suspension to the President for his approval, contrary to the provisions of the Constitution. Therefore the council was right when it suspended Talba without seeking the President’s approval.

Today, the same stakeholders argued that NJC was wrong for suspending Agumagu without recourse to Amaechi’s approval. What was good for Talba should be good for Agumagu, so the ageless African wisdom dictates.

Ahuraka is the Media Aide to CJN