Sunday, April 20, 2014

CJN Mukhtar must clean up judicial appointments, By Chidi Anselm Odinkalu

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Chidi Odinkalu

On Monday, 5 November 2012, Chief Justice of Nigeria (CJN), Aloma Mukhtar, was scheduled to administer oaths of office to 12 newly appointed Justices of Nigeria’s Court of Appeal at the premises of the Supreme Court in Abuja. All 12 had scaled through the rigorous processes preceding appointment and had received their letters of appointment.

To enable them fulfill the administrative processes preceding swearing in, the newly appointed Justices were required to arrive in Abuja the previous week. On the afternoon of Friday, 2 November, the CJN’s Secretary telephoned one of the newly appointed Justices, Honorable Justice Ifeoma Jombo-Ofor, to request her to see the Chief Justice urgently.

At the Supreme Court, Justice Jombo-Ofor proceeded to the CJN’s Chambers. Sources at the Supreme Court authoritatively report that at the meeting, CJN Mukhtar briefly interrogated Justice Jombo-Ofor as to her state of origin and accused her of not being an indigene of the State she claimed before abruptly ending the meeting.

Following her brief encounter with the CJN, Justice Jombo-Ofor was seen leaving the premises of the Supreme Court in severe distress. On Saturday, 3 November, the Chief Registrar of the Supreme Court instructed her through a telephone call not to attend or present herself for the swearing in on 5 November. All these developments took place orally.

On Monday, 5 November, the CJN administered the oath on 11 Justices instead of 12. Chief Justice Mukhtar had administratively stepped down Justice Jombo-Ofor from among the Justices to be sworn in. It emerged that Justice Jombo-Ofor was not sworn in because, in the opinion of the CJN, she was not an “indigene” of the State whose origins she claimed, Abia State.

In one sentence, the decision of CJN Mukhtar in this matter pertaining to Justice Jombo-Ofor’s swearing in is flawed in process, wrong in law and subversive of our constitutional values of equality among citizens.

Let us begin with the process. The administration of oath of office follows judicial appointment and does not precede it. With respect to appointments to the Court of Appeal, this process begins with the nomination of candidates by the respective heads of court around the country. In Justice Jombo-Ofor’s case, the Chief Judge of Abia State would have consented to her appointment. Thereafter, the security services would usually prepare dossiers on the candidates. The nominations and dossiers would be considered by the Federal Judicial Service Commission (FJSC) chaired by the CJN. The FJSC then reports to the National Judicial Council (NJC), also chaired by the CJN, which decides on which candidates to recommend to the appointing authority, the President.

Based on the nominations received from the NJC, the President then exercises the power under Section 238(2) of the Constitution to formally execute the instruments of appointment and to issue and transmit letters of appointment to the successful candidates.

This process is long and arduous and involves all the branches and levels of our government in the most intricate advertisement of constitutional checks and balances possible. No one can scale through to appointment if the CJN objects at either the FJSC or the NJC. But because of this process also, she cannot be heard to object at the stage of swearing in because to do so at that stage would impugn the integrity of the judicial appointment process, call her own decision making into question, and possibly render her position untenable.

This is why the decision to refuse to administer the oath on Justice Jombo-Ofor is also wrong in law. Having been involved institutionally in the process of appointment, the CJN should either be recused from any post-appointment objections or, alternatively, estopped from doing so. In any case, at this point in the process, the CJN is devoid of the legal power to countermand the appointing authority.

Once the instrument of appointment is executed, Justice Jombo-Ofor can only cease to be a Justice of the Court of Appeal if she is removed through an established judicial disciplinary process, impeached as provided in the Constitution or her elevation is nullified by a court of competent jurisdiction. None of these happened here. Surely, a matter as serious as this cannot be handled orally or by a sequence of cellular telephone calls.

The flaws in process and want of legality reinforce the twin damage that this entire episode does to our constitutional values. First, it denies women, especially married women, equality of opportunity contrary to our constitution. Ifeoma Jombo-Ofor, a 58-year old married grandmother was born in the former Eastern Region of Nigeria in 1954. By the time she got married 33 years ago in 1979, her parental origins had become Anambra State but her husband was from Imo. In 1981, she was appointed a Magistrate in Anambra State. In 1991, when Abia State was created, her husband’s state became Abia. In 1998, the Abia State Government appointed Ifeoma Jombo-Ofor a Judge of the High Court of Abia State. She has served in this capacity since then.

In any serious clime, this story of her exclusion from judicial oath of office would be laughable. The process was ham-handed to say the least and it is surely tragic that we have got to a point where the defining issue in judicial appointments is not whether the candidate is up to the difficult job of being a judge but where they come from.

What CJN Mukhtar suggests by her action is that there can be no potability of origins for the Nigerian woman. Yet in 1985, the Supreme Court had decided in Olowu v. Olowu [1985] 12 S.C. 84, that there is in fact such potability. For married women, this is important. Every married woman belongs to the place where she is born and also to the place into which she is married. This dual identity is not opportunistic. Instead of affirming this fact, the CJN took an administrative decision whose immediate impact is to diminish public service opportunities open to married women in Nigeria by rendering them effectively stateless. For this, Nigerians are entitled to take her to task.

Ironically, 20 years ago, the same NJC’s predecessor, the Advisory Judicial Committee (AJC), rejected the appointment of a female judge from then Cross River State because she was an unmarried mother. So as a woman, you lose professional preferment, whether married or unmarried.

Secondly, the “rules of origin” in the judiciary require urgent attention. Three years ago a judge of the Lagos High Court, Bunmi Oyewole, was refused elevation to the Court of Appeal because his origin is Osun State. In October 2012, the NJC reportedly declined to support his nomination as Chief Judge of Osun State because he is a judge of the Lagos State High Court. Mere mortals may struggle to make sense of this.

The treatment of Justice Jombo-Ofor is disgraceful and beneath the dignity of the judicial branch. On 7 November, the Senate resolved, in an unprecedented step, to condemn the decision of the Chief Justice and request her to swear in Justice Jombo-Ofor. She should comply. She should also review and clarify the criteria for federal judicial appointments. This mess of origins must be cleaned up.

Odinkalu chairs the Council of the National Human Rights Commission

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