We have been reading the happenings in Rivers State concerning first the appointment of the acting Chief Judge (CJ) and now the CJ of the state. I am not a lawyer but I am a son of Ikwerre. What has prompted this article was the threat issued by Barr. OCJ Okocha, MFR, SAN, JP to Ikwerre Ethnic Nationality arising from the said happenings. He said on page V1 of Thisday 8th April 2014 as follows:
“May I therefore suggest, most humbly that the Ogbakor Ikwerre Convention, perhaps through a high-powered panel/committee of OCHI ONHAS, intervenes in the matter, and respectfully advises His Excellency, the Governor of Rivers State, to do what is right, proper, legitimate and constitutional, and take all necessary steps to ensure that The Honourable Justice Daisy W. Okocha is dully appointed, duly confirmed and duly sworn-in as the Chief Judge of Rivers State, as any failure in that regard will definitely reverse the several gains made by the Ikwerre Ethnic Nationality in the scheme of things in Rivers State.”
The trouble was that Governor Amaechi refused to appoint Justice Daisy Okocha as the acting CJ of Rivers State, instead he appointed Justice Peter Agumagu who was then the President of the Customary Court Appeal, Rivers State. Later, after a Federal High Court sitting in Port Harcourt had ruled that Justice Agumagu was eminently qualified to become the CJ of River State, Governor Amaechi got the confirmation of the House of Assembly of the State and appointed Agumagu the substantive CJ of Rivers State. For accepting the appointment, NJC has suspended Justice Agumagu.
Let us note abinitio that OCJ Okocha, Rotimi Amaechi, Agumagu and Daisy Okocha are all children of Ikwerre (an ethnic group in Rivers State Nigeria). It was probably on this brotherly thinking that OCJ decided to take the matter to the highest socio-cultural organization of the Ikwerre people on earth: Ogbakor Ikwerre Convention Worldwide. Note also that OCJ is the immediate younger brother to Daisy Okocha of the same blood parents.
OCJ’s position is clear: that Governor Amaechi was wrong not to have appointed Justice D. W. Okocha first as the acting CJ and later the substantive CJ as recommended by NJC. In appointing an Acting Chief Judge of a state, section 271(4) made it clear that:
“if the office of Chief Judge of a State 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 Governor of the state shall appoint the most senior Judge of the High Court to perform those functions”
Again, Third Schedule, Part 1, paragraph 21(c) stated that 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 and Judges of the High Courts of the States,…”
From these provisions it is clear that NJC’s recommendation is not required for appointing the acting CJ of a state. The Third Schedule must be referring to the appointment of a substantive CJ, not an acting CJ. Therefore the appointment of an acting CJ is totally at the DISCRETION of the Governor. But the Governor needs to ensure that the person must be the most senior judge of the high court of the state.
Justice Peter Agumagu may be senior on the bench to Daisy Okocha and this probably settles the issue of seniority as required above by the 1999 Constitution of the Federal Republic of Nigeria. But Justice Peter Agumagu was as at this material time (August 2013) the President of the State Customary Court of Appeal, not a High Court judge. The argument that Agumagu was on secondment was not contemplated by the law; so the governor should have appointed the next most senior judge of the high court of the state, that is Daisy as the acting CJ of Rivers State. This would have saved us the cross-carpeting theory.
Next was the appointment of a substantive CJ of the State. Section 271 (1) of the 1999 Constitution states that:
“The appointment of a person to the office of the CJ of a State shall be made by the Governor of the State on the recommendation of the NJC subject to the confirmation of the appointment by the House of Assembly of the State.”
This law envisaged that before recommendation was made, the NJC would have (as the ultimate administrator of the judiciary in Nigeria) resolved the issues of qualification, cross-carpeting and even seniority. That is why the law was emphatic that once a recommendation is made, the governor should appoint the person recommended. Again the word “shall” qualified the three actions of appointment, recommendation and confirmation.
Some people have argued that “shall” means that the Governor must be the one to appoint; the NJC must be the one to recommend and the House of Assembly of the state must be the one to confirm. They say that this does not mean that whatever the NJC recommended must be appointed and confirmed. They say that if that is the case, then the Governor becomes a mere robot or rubber-stamp to the NJC. They further argue that if the law wanted the Governor to be a robot in this regard, it would have used a phrase like “… in accordance with the recommendation of the NJC…” or “…based on the recommendation of the NJC…” Finally, they argue that to recommend is merely to advise; that the main action belongs to the governor who could accept or reject the recommendation.
I believe this thinking may not ensure checks and balances in the administration of the state for the general stability and well being of the state. Governor’s dynamism in the exercise of his functions must take full cognizance of the stability and well being of the state. Secondly, the law did not give room for discretion here, otherwise it would have stated so like it did in 1979 and some parts of the 1963 Constitutions.
To determine whether or not the law above had the intention of allowing discretion on the part of the Executive (that is the Governor), let us look at the provisions for the appointment of CJ in the old Federal Capital Territory Lagos in 1963 Constitution, in the State according to the 1979 and 1999 Constitutions and make a comparative analysis using such a holistic picture of the law. In Chapters Eight, Seven and Seven of the 1963, 1979 and 1999 Constitutions respectively, the law was inconsistent on the issue of discretion or non-discretion on the part of the President and Governor in appointing the CJ of the then FCT Lagos or the CJ of the States. We discovered that in 1963, the provision was non-discretional in appointing the CJ of Lagos because it used the phrase “…acting in accordance with…” In 1979, the phrase used was “… in his discretion…”, so the provision was discretional. In 1999, the phrase changed to “…on the recommendation…” and combining this with the word “shall” mean non-discretional. On the whole, discretional scored 1/3 (33%); while non-discretional scored 2/3(67%). So in the main, the intention of the Constitutions of Nigeria has been to ensure that such appointments were not made discretionally or at the whims of the President or the Governor. Also to ensure that the appointments are well guided and standards are maintained, the Executive, Legislature and Judiciary all had roles to play. Based on these, one can say that the recent appointment of the CJ in Rivers State appears to have fallen short of the intention of the Constitution of the Federal Republic of Nigeria.
On the other hand, the Governor who is a politician, could well argue that his calculations in appointing the CJ may not be the same as those of the NJC. First and foremost, Barr. OCJ Okocha was a member of the NJC that recommended his sister be appointed the CJ of Rivers State. The Governor could insist that it is not proper that OCJ Okocha was among the council members who assessed his sister for the appointment; that the honorable thing to do would have been to temporarily excuse himself from the NJC at that material time when his sister’s case was being considered. What therefore may have happened was what Ikwerre would say: “nne ndah zi nu ikpe ohna, ikpe ohna hyesi la” meaning: if your father is a member of the jury handling your case, judgement in your case may likely be in your favour. Governor Amaechi may also be interested in the role of the CJ in his political career in and outside Rivers State, hence he needed a CJ that he could work with. One also needs to consider the political relationship between Governor Amaechi and Barr. OCJ Okocha within and outside the state. The Governor may also feel that if he appoints as the NJC has recommended, it may mean he is just a mere rubber-stamp of the NJC as alleged by analysts and commentators.
Now to the issue at stake: in all of these permutations, the Ikwerre Ethnic Nationality has no constitutional role to play in the appointment of the CJ of Rivers State. But by OCJ’s invitation to Ogbakor Ikwerre into the matter, it shows that he has respect for Ikwerre and that the matter had gone beyond the legal parlance unto the moral bedroom. This is a moral duty on the part of Ogbakor Ikwerre Convention (OIC). OIC must rise to the occasion and be seen to have played its fatherly role. As a parent, Ikwerre should not support either of the feuding children. So my suggestion to Ogbakor Ikwerre Convention is to advise Governor Amaechi to go and lobby the NJC on the possible ways forward given that he may not be comfortable appointing the person recommended to him. Or that both persons be dropped and he could nominate another candidate of his choice. Ogbakor Ikwerre should also on its own lobby the NJC to kindly accept Governor Amaechi’s suggestions when they come. This could work because in Politics, lobbying and consulting must take place where there is disagreement. Indeed they are critical strategies that move mountains in the management of society conflicts.
On the part of OCJ Okocha, may I suggest that he publicly withdraws his threat to Ikwerre whose duty on the matter is unconstitutional and merely advisory on moral ground and therefore should not be threatened or punished for an issue she has no full control or responsibility. Inviting Ikwerre to intervene is appropriate, but threatening her is not proper. If the lobbies suggested above work out well or fail, I suggest that OCJ should leave Ikwerre out of the matter. No one knows how you intend to reverse the gains Ikwerre had made over the years and that is why I am appealing to our own dear OCJ to leave Ikwerre out of this matter. The little Ikwerre had gained under former Governor Odili is what is surviving her till date. Why should we now think of reversing this little? I use this medium to appeal to OCJ that if truly he loves and respects Ikwerre, he should have no hands in reversing or bringing down the little Ikwerre has, just because of the failure of an individual. By appealing to Ogbakor, minus the threat, you have shown regard for Ikwerre. If Ogbakor intervenes and no result, I pray you hand-over the matter to God who created you Ikwerre.
Okachikwu Dibia
Abuja, Nigeria.
