Long, long time ago in a galaxy far, far away in the animal kingdom, so the story goes as my grandmother told me…The fox as cunny as it was will always run away at the sight of the rooster even to the amazement of rooster who always thought that if anything fox was a wiser and stronger animal and could not fathom why fox feared him so much and always run on sighting him.
One day the rooster quietly crept in on fox where he was resting, the fox jumped and tried to run away, but rooster dissuaded him and asked him why he runs from him. The fox answered that he runs away from the rooster because of that crown of fire on his head. He is scared of fire. Then rooster laughed out loud and asked fox to touch it, saying it is not fire, it is ordinary meat. When the surprised fox touched and realizes how succulent it was and did not burn, he took a step further by yanking a piece off cock’s head and tasted it, when he discovered how tasty it was, he yanked more until he killed the rooster for dinner. Since then reverse became the case, it is now the rooster that runs at the sight of the fox through his own self destruction. This is the story of the Judiciary and the politicians in Nigeria.
This is actually meant to be a rejoinder to the articles written by Barristers Kayode Oladele and Osi Okponobi as published on the popular websites named Sahara Reporters. It is apparent that Mr. Osi Okponobi is not abreast with the facts of this matter, otherwise he would have known that it was NJC that suspended Justice Salami and not the President. If you do not get your facts right, you cannot properly apply the law. While Barrister Oladele made very brilliant submission with regards to the matter, I am still of the opinion that both gentlemen were wrong on certain conclusions of law. I’ll try as much as I could not to make this presentation too legalistic for the benefit of non-Lawyers reading us.
To properly dissect the issue addressed by them we need to go back to the Genesis of the whole imbroglio. Not a few legal minds in the country were surprised at the sudden announcement of “promotion” of Justice Salami who was already the President of the Court of Appeal to the Supreme Court to line up behind many Judges who were many years his junior at the Bar and on the Bench without consulting him as it is the practice.
Justice Salami of course vehemently protested such undesirable promotion. The pieces of the puzzle began to fall in place; revealing a deep seated animosity at the highest echelon of our judiciary when Justice Salami in a matter filed in court to stop the promotion stated under oath that the “promotion” was meant to be a punishment for his refusal to accede to the request of the now retired Chief Justice of the Federation (CJN) Katsina-Alu that he should pervert the cause of justice with regards to the matter of Sokoto State gubernatorial election pending before him.
This was no doubt a very grave allegation from a sitting President of the Court Appeal against the sitting Chief Justice of the Federation sworn under oath. To my mind, this is the point where common sense should have prevailed; this is the point where all the stakeholders in the administration of justice and all the ministers in the Temple of Justice should have come together to safe the last bastion of the common man, the point they should all have spoken with one voice dispassionately to protect the most sacred temple known to the administration of human affairs at least in the secular world. But what did we get? Rationality and integrity were sacrificed for political expediency, the ranks of our judiciary were savagely dismembered by interested politicians, personal preservation and ambitions took the center stage. Only very few of our respected legal luminaries spoke the truth, politics and political interests became determinants of where our respected jurists stand, even constituting a panel to investigate the matter became politicized. It became apparent at this point, just like the story of the fox and the cock, that the heart and soul of our judiciary has been delivered to politicians on the altar of selfishness. The mess created from that matter is what National Judicial Council (NJC) is still trying so hard to clean albeit belatedly.
When NJC finally constituted a panel to investigate the allegations, Justice Salami approached the court, it was even alleged that at a point that the revered judicial organ refused a service of judicial process on it; if the foundation is weakened, what would the righteous do?
At the end of its sitting, the panel exonerated Justice Salami of some allegations against him but found that he lied against CJN Katsina-Alu and asked him to apologize within a stipulated time. It is not my place to query or examine how the body arrived at its decisions. But of course Justice Salami knowing that he might be setting himself up for prosecution for perjury by admitting to lying under oath if he apologizes to CJN Katsina-Alu or because he believes he is correct in his assertion, refused to apologize.
The NJC after its 7th Emergency meeting held on August 18th, 2011 released a statement announcing the suspension of Justice Salami immediately pursuant to the powers purportedly granted it under the 1999 Constitution. But the referenced provision; Third Schedule, Part 1 at Section 21 reads as follow:
“The National Judicial Council shall have power to –
(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers”
The NJC further recommended his compulsory retirement or removal from office to the President all while he has a suit pending against them in a court of law. This is the story of how the sacred crown of fire on the head of our judicial cockerel was offered to political fox as dinner!
Examining the provision of the law under which NJC purportedly suspend Justice Salami, it should be apparent to any discerning mind that the drafters of this law never intended for the NJC to discipline any of the Judges in this category but to recommend their removal and exercise of disciplinary control over them to the President. Any good student of legislative drafting would agree that there is no way two separate functions, one, to recommend to the President for removal and another separate (purported) function of NJC, to exercise disciplinary control over Judges independent of the President would have been lumped together in one sentence under one sub section except the country is running out of papers or space to write, haba! That statement is one continuous sentence without colon, semi colon or coma until the semi colon that separates it from the next function. The only function there is a function of recommendation.
I would respectfully submit that NJC acted ultra vires to have suspended Justice Salami in the first place. They have no such powers under the referenced law. Perhaps knowing that getting the two-third of Senate members address needed to ratify his removal as required by the Constitution may be an uphill task, the President who is not exactly known for taking prompt actions towed and reinforced NJC illegal suspension route by quickly announcing a replacement for Justice Salami.
According to Martin Luther King “law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress” This was how our NJC instead of allowing justice to take its natural cause, but for political expediency and personal interests created the mess they are trying to clear now.
Politics and justice are like water and oil they do not mix, politics is about right and left, politicians easily shuttle between the two, while justice is about right and wrong and constant like the truth, unfortunately we dragged our justice between right and left as opposed to between right and wrong. According to Dick Armey “three groups spend other people’s money: children, thieves and politicians, all three need supervision” Who should better supervise our politicians if not our judiciary? But some of our judiciary members who are the High Priests in the Temple of Justice, those who are supposed to live above the fray and far away from the maddening crowd were also caught in the intrigues and webs of political conspiracy.
Unfortunately, our repentant, new and improved NJC members have succeeded in getting President Jonathan to reinforce illegality and have not been successful to free themselves from the evil claws that they employed. President Jonathan neither suspended nor removed Justice Salami; he was therefore a “suspended” President of the Court of Appeal. All that he did was to exercise his power under Section 238 (4) of the Constitution according to a statement released on behalf of the President by Dr. Reuben Abati, to appoint a replacement when the office was presumed vacant. Since NJC has reversed its illegality, the office of the President of Appeal is no longer vacant! Section 238 (4) where the President derived his power to appoint Justice Dalhatu is clear, it states:
“ If the office of the President of the Court of appeal is vacant, or if the person holding the office is for any reason 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 President shall appoint the most senior Justice of the Court of Appeal to perform those functions” The appointment made by the President automatically lapses at resumption of the erstwhile occupier of the office, by virtue of the underlined. Justice Salami has now resumed those functions; he should therefore be back on his seat by operation of law.
NJC should advise Justice Dalhatu to this effect and advise Justice Salami to resume at his duty, period. Of course there is politics in the mix. To avoid any further delays, if NJC would not finish what they started, all that is required of good men at this point is to demand an accelerated hearing of Justice Salami’s suit challenging his removal because of the importance of the matter to the polity. This is a matter that should be disposed of in few weeks. The injustice has endured for too long.
Ayo Turton is a USA based Lawyer.
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