By Innocent Anaba, Henry Ojelu & Ike Uchechukwu
The second time rejection of the nomination of Justice Akon Ikpeme as the substantive Chief Judge of Cross River State by the state House of Assembly, following her second re-nomination by the National Judicial Council, NJC, has received the knocks of lawyers, who called on the National Judicial Council, NJC, to do more to ensure that its recommendations are not treated with levity.
When Justice Ikpeme first appeared before the state House of Assembly on March 2, 2020, her nomination was rejection, as the state lawmakers said though she is married to an indigene of the state, she is from neighbouring Akwa Ibom State by birth and therefore constitute a security risk.
The next day, March 3, 2020, Governor Ben Ayade swore-in Justice Maurice Eneji as the acting Chief Judge of the state, after the House of Assembly, screened and approved his appointment in acting capacity.
Justice Ikpeme’s non confirmation generated a lot of reactions then. Last month, the NJC again recommended Justice Ikpeme to the state governor, who forwarded her name to the state House of Assembly.
At the House’s sitting on June 2, 2020, again rejected her nomination, arguing that they cannot overrule themselves, as they had earlier rejected her normination.
Law and Human Rights in this edition, spoke to the parties involved including lawyers who decried the action of the state lawmakers.
Speaker defends colleagues
Confronted on the action of the House, Speaker of the state House of Assembly, Eteng Williams, disclosed that they did not violate or break any law by rejecting the recommendation of the NJC on Justice Ikpeme.
He argued that the constitution did not force them to take a decision, as it was a ‘yes’ or ‘no’ decision. He insisted that they carried out their responsibility as an independent arm of government.
He said, “The constitution did not force us to take a decision, it is either we say yes or no. We did not violate what the constitution has provided for in any way. We did what was right.
“When the constitution gave that responsibility to us, it knew we are not lawyers but politicians and we followed what the Constitution says. We never violated any law. It is not about feelings or opinion, it is about constitutional provisions.”
We were ambushed by Assembly leadership — Esua
Member representing Calabar Municipality in the state House of Assembly, Efa Esua,however pointed out that those of them who were on the side of Justice Ikpeme were ambushed by the leadership of the House.
He said: “While we were waiting to get another letter from the executive since the NJC rejected Justice Eneji, we were surprised when a plenary was called and the letter extending Eneji’s tenure was brought to the house.
“The house earlier had about 10 members who believed Ikpeme should be the substantive Chief Judge of the state. Member representing Obubra 1 , myself and few others spoke when the first letter came .
“Surprisingly, on June 2, when the letter for the extension of Justice Eneji was read ,we were not given the opportunity to speak or make imput. Were overruled by the Speaker while the House adopted thier earlier decision and rejected NJCs recommendation for the second time.
“Those in support of her nomination by NJC believe that her becoming the Chief Judge of the state was a career thing and not political. It is now left for the judiciary and lawyers to decide if they will allow such precedence to stand becuase I don’t think it has happened anywhere before.”
I can’t speak until JSC meets — Attorney General
On his part, state Commissioner for Justice and Attorney General, Mr Tanko Ashang said the Judicial Service Commission, JSC, will be meeting next week.
He said: “Commenting on the matter would amount to subjudice, becuase the Judicial Service Commission, JSC, will be meeting next week. I can only tell you the way forward on this matter after that meeting.”
NJC should seek declaration in court-— Agbakoba, SAN
Former Nigerian Bar Association, NBA, President, Dr Olisa Agbakoba, SAN, in his reaction on the issue, said, “The NJC ought to seek a declaration in court as to whether the Cross River House of Assembly is right to refuse it’s recommendation on grounds that clearly show discrimination contrary to section 42 of the Constitution. But more important is that the National Assembly ought move in quickly to resolve indigene rights, so that it is irrelevant in consideration of public appointments, that although a public servant is not from a state by birth, it is enough that as an indigene, there is no bar to public appointment.”
CRSHA action malicious-Ukweni, SAN
Mba Ukweni, SAN, said, “My position is that both the governor and Eneji (acting CJ) as well as members of the CRSHA dont love the people of Cross River and that is why they are allowing the inordinate ambition of Justice Eneji to completely destroy the fabrics of the judiciary that have been laid by the founders of this profession.
“Of course, they have nothing to lose but Justice Eneji knows it is not his due to become a substantive Chief Judge of Cross River. The recent act by CRSHA in again rejecting or turning down NJC request is malicious and it is just to keep Eneji in office unconstitutionally.
“The only thing we have heard is a purported letter that was sent, but the letter has not been made public. We only saw what the Special Adviser to Governor Ayade, paraphrased and sent out and there seems to be a lot of things going on that the public don’t know about.
“At no point has the NJC recommended Eneji and there must be something wrong. When the CRSHA first turned down the recommendation of NJC, the governor also wrote to the same NJC about Eneji but they rejected his request noting that they had already made recommendations about that office in the person of Justice Ikpeme.
“Secondly, the same NJC which is chaired by Chief Justice of Nigeria, CJN now wrote to the governor insisting he (Ayade) re-present Justice Ikpeme to the House but she was again rejected in an insolvent and undignifying manner.
“Surprisingly, the following day, we hear that the Chief Justice of Nigeria, CJN, now wrote again to Ayade now extending the tenure of the acting CJ of Cross River.
“We call on the NJC to rise up to the occasion because it is a face saving measure otherwise, if Ayade succeeds, other state governors will follow suit and turn the judiciary into one of the departments in the Ministry of Justice. NJC must take charge of its constituonal responsibility now by acting fast.”
NJC must insist on its position — Muaka
On his part, Alex Muako, former NBA Ikeja branch chairman said, “I think that NJC should refuse to recommend any other person for that office and should not recognise any person appointed without its recommendation.”
CRSHA action is legislative recklessness — Omodele
Reacting to the issue, Yemi Omodele said, “The rejection and none confirmation of Justice Ikpeme as the substantive Chief judge of Cross River State by the state House of Assembly is an embarrassment to the judiciary. It is legislative recklessness to have denied a qualified judge so recommended by the NJC to run the affairs of Cross River State judiciary. Qualified judge should not be denied of being a chief judge because of state of origin. The decision of the House of Assembly amounts to ethnicity which is contrary to the constitution of Nigeria, section 42 (1)(a).
Justice Ikpeme’s rejection is provocative— Ugwummadu
Former President, Committee for the Defence of Human Rights, Malachy Ugwummadu said: “Regrettably, I am inclined to begin my response by emphasising the contradictions and dysfunctionality inherent in our own federalism, where a national judicial institution like the NJC is deeply involved in the appointment, discipline, removal and even disbursement of funds of state judiciary. In this regard, I reference S. 271(1)(2); Paragraph 21(c) of the 3rd Schedule to the Constitution of the Federation Republic of Nigeria 1999 (as Amended).
“This is regardless of the fact that the same Constitution under S.197(1)(c) created the State Judicial Service Commission and defined their powers under Item C of Part 11 of the 3rd Schedule. Indeed, we can all reflect on the need to check abuse of executive powers in the states as justification for outsourcing this power of recommendation to the NJC, but have we fared better with the emerging conflicts between state governments and governors and the Federal Government? Certainly, the friction created by this abnormal federal arrangement is avoidable.
“Meanwhile, the rejection of the nomination of Justice Ikpeme is not just regrettable and unfortunate, it’s highly provocative in the circumstances that it’s playing out and more damaging for the reason advanced by the CRSHA. There’s no law whether in the state concerned or an Act of the National Assembly that preclude a Parliament from retracing its step, amending its resolution or out rightly revocating its decision if it discovers that such decision is obnoxious, offensive, prejudicial and unacceptable to the people they are constituted to serve in the first place.”
CRSHA action tribalistic — Asimole
On her part, Linda Asimole Ellah, Founder/Coordinator of The Living Woman, said “The decision of the CRSHA was tribalistic and could breed disunity.
“In the three arms of government, it is paramount that the legislative arm of government can stand up to the executive arm of government and tell it what it needs to hear.
“One way tribalism works is that, when you think in a tribalistic way, you convince yourself that the other person is like that too and will also resort to that when the going gets tough.
“In sowing seeds of ethnicity and disunity rather than following laid down constitutional laws, we forget that the younger generation are watching and will replicate in more dramatic ways whatever they see being done by the elders.
“Governance and decision making that is based on ethnic sentiments, personal interest and/or financial inducement, cannot be right. This makes a caricature of legislations and hence leaves the lives of people at the whims of decision-makers.
“The unequal regard and treatment of women and men and unequal playing field in matters of politics and economy is glaring in the story. Where a woman belongs is not decided for her. A woman has a right to decide where she belongs geographically, and that right should not be taken away from her.
“The story of Justice Ikpeme confirms a major concern expressed in the Convention that despite various instruments that relate to human rights, UN resolutions, declarations and recommendations adopted by the United Nations and other agencies, extensive discrimination against women continue to exist.
“A woman, with her heart of gold, is not a ‘use and dump’ by society. When she labours, she has a right to reap the fruit of her work in accordance with what is lawfully her due. As educated and enlightened as we claim to be, would you allow your mother and/or your sister to fight and struggle to get her voice heard and be seen just because she is a woman?
“Yet, this is the daily reality perpetuated by supposed educated and elite in the society. Let’s get it right. A girl-child is no stranger in her father’s house. She is not a passerby. She is a daughter of that family and fully belongs there.
“When she gets married, she joins a new family, just as her husband cleaves to her and embraces her family. She fully belongs to the family made up of herself and her husband. Her being a woman makes her no less and she is entitled to equal social, economic, cultural and political rights,” she added.
Indigenization of public offices has no legal standing — Obidegwu
Ben Obidegwu in his contribution, said, “S. 271(1) of CFRN 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 National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.* Therefore it is within the constitutional power of the state House of Assembly to approve or reject the appointment. However, having said that, the reason advanced by the State House of Assembly for rejecting to approve the nomination of Justice Ikpeme – that she is not an indigene of Cross River State by birth is not only laughable but unconstitutional.
Again, I am not aware of any law that says when a candidate’s nomination is rejected by a House of Assembly; the house cannot reconsider the same nomination if it is represented in the future. Examples abound of candidates who were nominated for appointment as Minister or Commissioners and are reject during the first screening exercise and are represented severally for approval before being finally cleared by the House of Assembly or Senate.
Clearly what the House of Assembly is doing can be termed as intimidation especially since the reason for the rejection of the appointment is unconstitutional in the first place. This is not good for the independence of the judiciary and our democracy considering that the officer involved is being nominated to head an arm of government.
Going further into the Cross River State issue, section 271(4) provides that “If the office of Chief Judge of a State is vacant or if the person holding the office is for any person 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”. Flowing from this, the swearing in of Justice Maurice Eneji as the Acting CJ is unconstitutional as the CFRN provides that “the most senior Judge” shall act until the vacancy of a substantive Chief Judge is filled. Also, by section 271(5), a person appointed in acting capacity without the recommendation of the NJC shall vacate such position after 3 months and cannot be reappointed.
The Constitution has set out the requirements to appoint a person as the Chief Judge of a State, and as such, the Cross River State House of Assembly cannot add its own additional requirement such as being an indigene of Cross River State. Indigenization of public offices has no legal standing or backing in Nigeria. The only way the reason of the Cross River state House of Assembly can be justified is if there is any law barring non indigenes of Cross River state from being Chief Judge of the State to bring it in conformity with Section 42(3)…The answer to that is there is no such law.
For the NJC, they may not be able to do much. However, they have the constitutional power to punish any Judge who agrees to be sworn in as CJ of the state without their recommendations. They exercised such power in Abia State when a similar scenario likes the above played out in the state.