NJC vs. Rivers

By IAfrica
In Nigeria
Apr 3rd, 2014
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•Judicial council should appeal judgment instead of throwing its weight around

The National Judicial Council (NJC) appears determined to resort to self-help in its disagreement with the Government of Rivers State, over the choice of the chief judge of that state. That road, in our view, is undemocratic and against the principles of rule of law. While the Rivers State Government went to court to challenge the extent of powers of the NJC to choose the chief judge for the state, which case was determined in its (Rivers State) favour at a Federal High Court, the NJC has administratively resisted the appointment of Justice Peter Agumagu, as the new chief judge, instead of appealing the judgment by Justice Lambo Akanbi, which the state government relied on to clear and swear in Justice Agumagu.

The crux of the disagreement is who has the powers to choose the chief judge of a state, between a state judicial service commission, legislature and executive government on one side, and the NJC, a federal executive body, on the other side. While section 271(1) of the 1999 constitution as amended provides that: “the appointment of a person to the office of Chief Judge of a state shall be made by the Governor of State on the recommendation of the National Judicial Council subject to the confirmation of the appointment by the House of Assembly of the State”; Paragraph 21(c) of Part 1(i) of the Third Schedule provides: “the NJC shall have power to recommend to the Governors from among the list of persons submitted to it by the state Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States…”

We view the disagreement as a crisis bordering on the abnormality of our peculiar federal constitution. As applicable in other countries, federalism is defined by world acclaimed Professor K. C. Wheare as “the method of dividing powers so that the general and regional governments are each within a sphere co-ordinate and independent”. While ordinarily the appointment of a state chief judge should be within the sphere of a state government, the relevant provision of our constitution strangely puts a federal executive agency, the NJC, in a pole position. The disagreement in Rivers State is over the extent of powers and influence of the NJC, and the institutions of the state, in the appointment of a state chief judge.

And where such a disagreement arises, the constitution in section 6(6)(b) clearly vests the judiciary with the authority to provide a solution, when it opines, “the judicial powers vested in accordance with the foregoing provision of this section, shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” With such a provision, we are worried that the NJC, instead of appealing the judgment of Justice Akanbi, which ruled against its executive prerogatives in the dispute, opted to disregard or subjugate the judgment to its administrative powers.

This constitutional crisis once again raises questions on the difficult choice between institutional bulwark and rational choice of men who preside over the institutions, in our match to a functional society. For, while there is the letter of the law, there is also the spirit of the law. Even with the challenges in the provisions of our constitution on the appointment of a chief judge, a rational choice that will not defeat the essential letter and the spirit of the law can still be reached. In pursuit of that, we urge the NJC to resist the temptation to throw its weight around.

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