Wednesday, July 9, 2014 2:40 pm
by Okafor Ofiebor
The lingering crisis in the Rivers State Judiciary over the appointment of the Chief Judge has taken a frightening toll on the fate of litigants and suspects who are languishing in jail and police cells.
The Rivers State Commissioner of Police, Tunde Ogunshakin, a week ago raised alarm over the high number of detainees in various police cells because of the inability of courts to sit and grant bail to those deserving of it. The crisis in the state judiciary is worsened by the indefinite strike embarked on by the its workers over insecurity in the courts and the paucity of their welfare.Ogunshakin, who had tried to mediate with the help of the Civil Liberties Organisation, CLO, expressed frustration at the recalcitrance of the leadership of the Judiciary Workers Union to see reason and call off the strike. He accused them of playing politics with the strike and dismissed as untrue, the argument of the workers that the primary reason they embarked on strike was the insecurity in various courts in the state.
He made it clear that after the bombing of the a state High Court in Ahoada East Local Government area, judges and various courts in the state have been provided with adequate security.
A state High Court in Ahoada was bombed twice within six months, destroying vital court materials such as exhibits and documents.
In the first incident, which involved the use of improvised explosive devices, IED, some judicial workers were among the suspects arrested by the police. The workers protested that their members were being hounded for crimes they did not commit.
The second grievance of the workers is that the controversy surrounding the appointment of a substantive Chief Judge for the state has stopped the payment of their salaries.
The National Judicial Council, NJC, had recommended Justice Daisy Okocha, the most senior judge of the High Court, but the state governor, Chibuike Amaechi, preferred Justice Peter Agumagu, the President of the state Customary Court, who is the most senior judge in the state judiciary, though on secondment to the Customary Court.
NJC and those supporting Justice Okocha’s appointment are arguing that the Constitution only states that the CJ must be the most senior Judge of the High Court but is silent on whether the Judge is of the Customary Court of Appeal. However, the state government stated that the NJC could only recommend but the final decision of who should be appointed rests squarely on the state governor, with the approval of the state Assembly. Amid the confusion, the NJC appointed Justice Okocha, an administrative judge of the state, and directed all judges in state not to take any appointment from the state government or any orders from any other judge besides Okocha.Ogunshakin’s alarm over the high number of detainees in police custody is now of utmost concern to lawyers and stakeholders.
The calm political atmosphere in the state was jolted penultimate week when thousands of protesters took to the streets of Port Harcourt, the state capital, protesting in two different divides; support for and against the National Judicial Commission, NJC, for appointing Justice Daisy Okocha as the administrative Judge of Rivers State, as against Justice Peter Agumagu, who is the preferred candidate of the Rivers State Government.
The foundation for the crisis of succession was laid even before the retirement on 20 August 2013, of Justice Iche Ndu, the erstwhile Chief Judge of the state. As part of the constitutional provision, the Rivers State Judicial Service Commission sent the names of nominees to NJC including: Justices Peter Agumagu, Daisy Okocha, J.A. Iyayi Lamankara, and B.A. Georgewill. The apex judiciary regulatory body in Nigeria in its wisdom, by a letter dated 22 July 2013, rejected Justice Agumagu’s nomination and recommended Justice Okocha for appointment as CJ, saying that Justice Okocha was the most senior High Court judge of the state at the time.
The state governor, Chibuike Amaechi, on 20 August 2013, rejected the NJC recommendation of Justice Okocha and swore in Justice Agumagu as the acting CJ, arguing that Justice Agumagu was the most senior judge in the state judiciary but was seconded to establish the Customary Court in 2008.
The position of the state government was made clear in a statement endorsed by Mrs. Ibim Semenitari, the Commissioner for Information and Communications. In it the government posited that, the NJC appears not to have taken into consideration the judgment delivered by Justice Lambo Akanbi of the Federal High court, Port Harcourt in which it was a party.
The state government introspectively reminded NJC and those rooting for Justice Okocha that, at the time of Justice Ndu’s appointment as the Chief Judge, Justice Sotonye Denton-West was the most senior judge in the Rivers State judiciary, yet the NJC did not compel the governor at the time to announce her as Chief Judge.
The state argues that the refusal of the NJC to abide by the recommendations of the Rivers State Judicial Service Commission on the appointment of the state Chief Judge and its insistence on a particular candidate has become a source of worry; and such insistence may appear to mark the NJC out as clearly partisan in a case in which it is a party.
The government had also gone to the courts to seek interpretation of Section 271 (3-5) of the Constitution of the Federal Republic of Nigeria as regards the appointment of a state chief judge, especially the section the constitution that states that “A person shall not be qualified to hold office of a Judge of a High Court of a State unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years.”
On 18 March 2014, Justice Lambo Akanbi, in delivering his judgment faulted the omission of Justice Agumagu’s name in the list of senior judges qualified to be Chief Judge of Rivers State. He said the argument by the NJC that Okocha was the most senior judge of the Rivers State High Court and more qualified to be chief judge of the state than Justice Peter Agumagu, because he was of a different arm of the judiciary – state Customary Court of Appeal – was wrong.
The court cited Kwara and Osun states where judges serving in other branches were appointed chief judges and wondered why the case of Rivers State would be treated in isolation.
Justice Akanbi stated: “What the constitution recommends is 10 years of legal practice and we are in a dynamic world. And, so, the issue of most senior judge can no longer be the only criteria of appointing someone to such an important and exalted position.”
It is instructive and curious to note however, that the same Akanbi, on 18 February 2014, invalidated the appointment of Agumagu as acting Chief Judge of the state and instructed the state governor to conform to the provisions of the constitution in the appointment of an acting chief judge.
Shortly after Justice Agumagu was sworn in by the Governor as Chief Judge, on March 18, 2014, the National Judicial Council, NJC suspended Justice Peter Agumagu from office as a judicial officer.
Those opposed to Justice Agumagu include: the Rivers State branch of the Peoples Democratic Party, PDP; the Grassroots Democratic Initiative, GDI; and a group called Kengena Unity Forum, led by Boma Goodhead and Ajenyanate Samuel. Kengena Unity Forum had earlier gone to a Federal High Court sitting in Port Harcourt, presided by Akanbi on 18 February, seeking to nullify Justice Agumagu’s appointment as the acting CJ and directing the state governor to comply with the relevant provisions of the 1999 Constitution.
The Akanbi nullified the appointment of Agumagu as the Acting Chief Judge, he, however, did not give a consequential order that Justice Okocha should be sworn in as the substantive Chief Judge. The judge said that would amount to usurping the powers of the Governor to appoint the Chief Judge.
Justice Agumagu was sworn in as Acting Chief Judge and served out the three-month period allowed by the constitution for an acting appointment. This expired on 20 November 2013.
The governor wrote to the NJC on 23 September 2013, appealing to the council to review its decision not to recommend Justice Agumagu for appointment as CJ, but the NJC refused to shift ground.
Consequent upon that, the Rivers Attorney-General, Wogu Boms, and the state JSC filed a suit – Governor of Rivers State & 2 ORS Vs The National Judicial Council & Hon Justice Daisy Okocha – before the Federal High Court in Port Harcourt, asking for a judicial construction of Section 271 of the Constitution relating to the appointment of a CJ, and also to determine whether Justice Agumagu was the candidate to be recommended and forwarded by the NJC to the governor for appointment as CJ of Rivers State.
Justice Lambo Akanbi had dismissed the recommendations of Justice Okocha by the NJC for appointment as Chief Judge of the state. Declaring the action of the NJC as wrong, null and void, Justice Akanbi said there was no way the governor could be compelled to yield to the recommendations of the NJC on the appointment of a substantive CJ for the state because he is not a rubber stamp.
The court pooh-poohed the letter of the NJC of 2 July 2013, and received on 30 July by Governor Amaechi that only the most senior judge must be appointed contrary to the recommendation of the JSC was wrongful, null and void.
NJC later appointed Justice Okocha as the Administrative Judge vested with powers to assign cases.
The cat and mouse game between the NJC and the state government continued, with the state government directing judicial workers not to take directives from Justice Okocha, warning that any worker who violated the directive would face dire consequences, including dismissal.
In a letter dated June 5 and jointly signed by the Accountant-General of the state, Ngozi Y. Abu, and the director, Treasury, Office of the Accountant-General, Dagogo R. Abere, the state government ordered the General Manager, Zenith Bank plc, at Plot 1/2, Presidential Estate, Aba Road, Port Harcourt, to stop the payment of salaries of judiciary workers until further notice.
The judiciary workers had threatened to comply with the directive of the NJC and would therefore remain without their salaries and allowances until further notice. This has further thrown the judiciary in a quagmire.
In giving the directive after a meeting of May 27, the NJC’s Director of Information Mr. Soji Oye, said the council considered the pains and frustrations which the state judiciary and litigants in the statwere facing following the vacuum created by the absence of a substantive or acting chief judge in the state.
O11 June, the Rivers House of Assembly passed into law, the state High Court (Amendment) Law 2014, which amended the Section 40 of the Principal Law of 2001. Section 40 of the Principal Law, which was passed in the fifth Legislative Assembly, was amended by the addition of a new sub-section 2, to read:“Where the office of the Chief Judge is vacant and it is impracticable to appoint an acting Chief Judge, or a Chief Judge, the Chief Registrar shall assign cases to any judge and perform other administrative duties until an acting Chief Judge or a Chief Judge is appointed.”
It was a unanimous decision, as the 17 lawmakers present, excluding the Deputy Speaker, Leyii Kwanee, who presided over the session, voted for the amendment.
Earlier, at the public hearing, Kwanee had said that no amount of intimidation and harassment would stop the lawmakers from carrying out their legislative functions. He added that the Assembly had the responsibility to make laws and, also, ensure that there was stability in the polity.
The Nigerian Bar Association, Port Harcourt branch, Rivers State, condemned the amended High Court Law by the state House of Assembly and endorsed by Governor Amaechi. The Chairman of the Port Harcourt branch of the association, Dennis Okwakpan, stated that they would challenge the amendment immediately the court resumes.
Okwkpan added that the law, if allowed to operate, would humiliate judges, who would be taking instructions from their junior, and moreover, who is not a judicial officer.
He said that the association had been interfacing with the NJC and the state government on how to resolve the lingering crisis in the judiciary. At the meeting, which was held at the Port Harcourt Club, it was gathered that the lawyers massively voted against the amended law and in favour of the decision of the NJC on the appointment of the most senior judge of the high court to assign cases.
Senator Magnus Abe, House of Representatives member, Mr. Dakuku Peterside and other members of the National Assembly led thousands of youths in the state to protest the appointment of Justice Okocha as Administrative Chief Judge of the state by the NJC.
Senator Abe, a lawyer and former Secretary to the State Government, SSG, who represents Rivers South-East district, told the protesters that the state will continue to resist acts of impunity, because the appointment of Justice Okocha as Administrative Chief Judge was a violation of the constitution.
He said: “The process has always been for the governor to make recommendations to the NJC, which in turn forwards a name for approval and appointment by the governor. And when the governor refuses, he appoints an acting Chief Judge. In the case of Rivers State, the NJC wrote to all judges not to accept appointment as acting Chief Judge. The matter went to court and the government got a favourable judgment and then appointed Justice Peter Agumagu as Chief Judge. The NJC suspended him. They have gone ahead to appoint one of the judges as acting CJ. Why is the NJC bent on the appointment of a particular judge as Chief Judge?”
Mr. Peterside, who represents Andoni-Opobo-Nkoro federal constituency, said the protest was to save democracy and ensure that the rule of law was in place. According to him, no institution of government was above the law in the country.
“What is happening today is that the people of Rivers State are doing everything possible to protect the rule of law and democracy. You can see clearly that our people know that the only way to sustain democracy is to fight for it. We are following due process to ensure we enforce the law,” he said.
On her part, Mrs. Semenitari said the people were protesting the alleged back-door appointment of Justice Okocha as Administrative Chief Judge of the state.
She alleged that the intention of those behind the appointment was to use her to back up the six anti-Governor Amaechi lawmakers to illegally impeach him.
Peoples Democratic Party, PDP, in the state has described the protest against the appointment of Justice Okocha as sponsored. A statement by media aide to the state chairman of the party, Mr. Jerry Needam, also condemned the members of the National Assembly who took part in the protest.
Barely 24 hours after the anti-Justice Okocha and NJC demonstrators staged their protest, pledging their support for Justice Peter Agumagu and Governor Amaechi for not obeying NJC’s recommendation in appointing the former as the chief judge of the state, pro-Okocha protesters took to the streets of Port Harcourt.
A member of the House of Representatives, Kingsley Chinda, an anti-Amaechi lawmaker, who addressed the protesters, traced the root cause of the crisis in the judiciary to governor’s refusal to obey and respect the rule of law and separation of powers.
He stated that the governor had exhausted his power, which was on the appointment of Justice Agumagu as an acting Chief Judge for three months, pointing out that Amaechi’s insistence on him was because he wanted a chief judge he would control.
As it were, the state judiciary has been in limbo for over seven months since the crisis started. Cases have not been assigned and there is fear that there is already crisis of confidence on the two judges at the centre of the crisis. The federal government and PDP in the state prefer Justice Okocha, while the state government and All Progressives Congress, APC, prefer Justice Agumagu. The amendment of the High Court Law would have been a middle ground but that seems to have un into a hitch as the state judiciary workers are now on strike due to the stoppage of their salary.