The feud between the Rivers State government and the National Judicial Council (NJC) over who should be the Chief Judge of Rivers State brings to the fore once again the sharp contradictions in the strange federalism holding sway in Nigeria. At the root of what has become a ferocious confrontation is the provision of Section 271(1) of the 1999 Constitution which vests the power of appointment of the Chief Judge of a state in the governor of the state upon the recommendation of the National Judicial Council, sitting in Abuja, subject to the confirmation of the appointment by the House of Assembly of the state. No doubt the provision is somewhat clumsy and beset with difficulty of interpretation, a reason the Rivers’ feud has been so fierce. The result of that clumsiness is that the judiciary has become prone to manipulation and justice can be denied.
This is a direct consequence of the desire to give vent to the principle of checks and balances in the appointment of the Chief Judge by ensuring that all the three arms of government have a role to play in the appointment. Regrettably, this has culminated in muscle flexing and unrestrained diatribe between the executive arm empowered to do the appointment and the NJC empowered to shortlist or nominate candidates for appointment. The bone of contention, as it were, is the extent of the governor’s power of appointment and the limits thereof vis a vis the power of recommendation vested in the National Judicial Council.
While the governor remains resolute in his conviction that his prerogative to appoint cannot be whittled down by NJC’s power of recommendation, the NJC on the other hand believes that the exercise of this prerogative is strictly circumscribed by its power of recommendation. It is this conflicting mindset that has made the governor to reject and the NJC to insist on the nomination of Hon. Justice Okocha recommended by it to fill the vacancy in the office of the Chief Judge of the State. The governor made it clear that he would not touch the NJC nominee with a pole on the ground that she is not the most senior judge in the state judiciary and that her choice by NJC was influenced by the nominee’s close relationship with an important member of the NJC. In her place, Governor Rotimi Amaechi named the president of the State’s Customary Court of Appeal, as his nominee for the office, a nomination rejected by the NJC on the ground that he is not a judge of the High Court of Rivers State. This twist is not without its merits and demerits, a way of saying that the two parties are not absolutely right or absolutely wrong.
On ground of law, NJC may be right in its contention that the governor cannot appoint a Chief Judge outside the persons recommended by it. On the principles and character of federalism, the governor may be right to insist that NJC, being a Federal organ ought not to dictate to him on who the Chief Judge of his state should be. This is thus a contest between the ideal and the reality; what the law is and what it ought to be. Truth, however, is that there is a world of difference between what the law is, and what it ought to be. This difference is captured in legal parlance as de lega lata and de lega feranda.
The present controversy between the NJC and the Governor of Rivers State is not without a precedent. In December 2004, when the office of the Chief Judge of Enugu State became vacant, following the retirement of the incumbent, Hon. Justice JCN Ugwu, speculation was rife that the governor of the state at that time, Chimaroke Nnamani clearly favoured the appointment of a particular Judge, Justice Umezulike, even though he was not the most senior Judge and by respected tradition ought not to be appointed to that office. The NJC had initially insisted on following the convention by recommending one Justice Agbo, the most senior Judge in the state but had to buckle under the pressure of the state governor who had vowed never to allow Justice Agbo, renowned for his incorruptibility on issues of justice and equity, be the Chief Judge of the state. Governor Nnamani achieved his objective through his legislature which refused to confirm the NJC’s nominee as Chief Judge. The NJC capitulated and eventually recommended the Governor’s choice for the office. The danger which such a tendency portends, however, is better imagined than experienced.
A scenario which renders the NJC structurally vulnerable to the overbearing influence of a governor in the appointment of the Chief Judge will invariably reduce the Chief Judge to a mere appointee of the governor, a situation capable of endangering the independence of the judiciary and its ability to do justice without fear or favour particularly where government or any of its appointees and political affiliates or loyalists are involved. Justice will then be too important to be left in the hand of the judiciary.
However, the fear of the governor is not unfounded, that the appointment of Justice Okocha may also be for a specific purpose, which is, to ensure the scale of justice is tilted against him if he ever had to seek justice or any matter. Which is why the real tragedy is that the judiciary, whose duty it is to prevent abuse of power and official position is now perceived as an object of abuse and manipulation itself. That it had yielded to political manipulation is, of course, no longer in doubt. Its ignominious role in the impeachment of Rashidi Ladoja, then Governor of Oyo State gives credence to the fear of Amaechi.
From the look of things, the feuding parties are not in a hurry to sheathe the sword, meaning that the people of Rivers State should be prepared for a long-drawn battle between their government and the NJC which will have a negative effect on the administration of justice in the state. It is highly unlikely that after the battle, the state judiciary will remain the same or what it used to be before the outset of the feud. It will certainly be polarised along several tendencies and, worse still, heavily politicised. Its integrity will suffer for it which by that token will render its decisions and judgments on disputes submitted for its adjudication suspect and questionable.
This is why the National Conference must pay attention to this ugly development considering the place of the judiciary in nation building.