OSUN CJ: Advising Adeleke’s advisers

By FESTUS ADEDAYO

(Published by the Sunday Tribune, November 19, 2023)

With my knowledge of the geography and contours of state government operations, Governor Ademola Adeleke of Osun State may have last week fallen victim of one of three sets of advisers that a political power base in government is exposed to. One is a set of competent advisers who are tainted by politics. Second is a class of advisers who are competent but are not bold enough to give right pieces of advice. These ones are too cowardly to advise right. The third set is a band of advisers who are not honest enough to tell the truth on the right path that the principal should take. Any one of the three will misadvise you, especially if you are not a professional.

German philosopher, Friedrich Nietzsche, refers to power as “the coldest of all cold monsters.” In power, he continues, lies “all languages of good and evil” and it is only when power ceases that “the man who is not superfluous begins.” How then do we find the man who is not superfluous among holders of power? Searching for such persons, to my mind, is akin to looking for needle in a haystack.

Governor Adeleke announced the suspension of the Chief Judge of the State, Justice Adepele Ojo last Thursday. Almost immediately, he appointed a replacement, in the person of Justice Olayinka Afolabi, as the acting Chief Judge. The two actions were claimed to have received the imprimatur of the State House of Assembly, through a resolution. Immediately after this action was taken, Press Secretary to the Speaker, Tiamiyu Olamide, said that the Assembly, through its House Committee on Judiciary, Public Petitions and Legal Matters would thereafter proceed to investigate petitions submitted against Ojo by inviting her. What this means is that the suspension of the Chief Judge was taken even before the purported allegations against her were investigated.

Sensing that raw political power may be on rampage against her, the Chief Judge swiftly approached the National Industrial Court in Ibadan, Oyo State which gave an interim order last Thursday restraining Adeleke from taking this obviously misadvised action of removing her from office. Aside the CJ, Governor Adeleke was also reported to have removed the Secretary of the Osun State Judicial Service Commission (JSC), Michael Obidiya, who also proceeded to the court to thwart his purported removal. The governor can get all these done, but the rules must be carefully followed.

So, when on Friday, another release was issued denying that the governor suspended the CJ, after the drama that attended it, you will understand the nugget on the need to get advice right by operators of government. When, if at all, should judges step into the political arena? This is a question which has consistently been a source of fascination and discussion for successive generations of jurists. The allegations against the CJ are very weighty, most of which are available on the social media. Having been appointed by APC bigwigs who are now operating at the federal level, it is alleged that she is not only an APC sympathizer but currently receives instructions on judicial matters from them. As if to corroborate this allegation, known APC party men and women, boys and girls, are mostly the ones rooting for her offline and online. Again, an allegation against her, which is neither here nor there, is that she was high-handed against her staff and subordinates. It is neither here nor there because a superior must be firm, especially in the face of subversion of the norm that has become the new ethics of work in Nigeria. But the boss must follow the rules at all times.

Ordinarily, no governor would be comfortable with a serpent on his roof and thus, Adeleke’s initial goof. But he and the CJ are said to be distant cousins from the same Ede town. So, what is the problem if not APC vs PDP politics? Not even the people in Abuja would want a CJN who is alleged to be politically aligned against them. You will recall how Muhammadu Buhari was stampeded into disgracing from office Walter Onnoghen, the then CJN. However, in the exercise of power, every effort must be made to employ tact and wisdom by borrowing from the fable of the Tortoise (Ijapa) and the Pig (Elede). Borrowing from this fable, late Fuji Lord, Ayinde Barrister, counseled that it is always wise to learn the contours of arguments of one defence before embarking on a fight – Ejo laa ko ka to ko ija.

Joseph Folahan Odunjo, (J.F. Odunjo) poet and Minister of Works in the First Republic, in his Alawiye series, adumbrated the need for Governor Adeleke to have approached the issue with tact and wisdom. This he did in a Yoruba poem where he chanted: If the wise is taunting you to a fight (bi ologbon ba nwa e ni’ja)/ If you don’t fight him with wisdom (Bi o ko fi iye de’nu)/ he will constrict you with wisdom (a mu ogbon wewe, a fi yi e po)/ If the wise is drawing you to a fight, (Bi omonran si nwa e ni’ja,)/ if you don’t fight him with patience (Bi o ko fi ara ba’le ba ja)/ he will rescue himself with disarming calmness (A fi iwa imeso gba ara kale)/ This is explained in the anecdote of Tortoise and Pig (Bee ni oro Elede ohun Ijapa ri). The summary of the allegory is this: Tortoise owes Pig the sum of two thousand cowries (egbaa) but would not pay despite repeated demands. One day, Pig, fuming, threatens to make life uncomfortable for the fabled trickster animal. Tortoise hears Pig knocking on his door and tells his wife, Yannibo, to turn him upside down. She does and then begins to grind pepper on her husband’s belly. Pig enters and inquires of his chronic debtor. Yannibo ignores Pig and his rants (o fi Elede gun lagidi). In anger, Pig flings out Yannibo’s pepper with what he thinks is the stone grinder. Tortoise’s wife grabs Pig, demanding her stone. Tortoise dusts himself where Pig throws him to, enters by the door and asks what the noise is all about. He is told what Pig has done and shouts that the money he spent buying the grinder is more than the egbaa that Pig has come to request its payment. The next time you see Pig bulldozing everywhere up and down with his snout, it is Tortoise’s grinder that he is rummaging the whole world for. He has forever forgotten collecting back his two thousand cowries.

I imagine how Alaroye, a popular Yoruba newspaper, would have cast the headline of Adeleke’s impolitic decision to unilaterally remove a CJ, in spite of the avalanche of judicial decisions which clearly spelt out the boundary of that assumed boundless powers in the hands of gubernatorial political authorities. I imagine that Alaroye would clearly compare the attempt to rubbish ancient venerated judicial powers to the assault that Yoruba, in their fertile sense of comparativism, say that iru (locust beans) suffered in the hands of Okemesi, Ekiti State people.

By the way, iru is a popular ancient condiment which, without it, the culinary component of homes in Yorubaland is incomplete. Okemesi, on its own, is famous for its unique terrain and undulating mountains which create a scenic wonder to view, revealing its touristic potentials, especially the below average temperature it manifests during the harmattan season. It also parades a great historical significance as it was home to the famous warrior, whose name became an prefix whenever Okemesi is mentioned, the great Fabunmi Okemesi, whose wardom provokes historical remembrance of the Kiriji war where he led the Ekiti-parapo forces.

As indispensable as iru is in the broths of the Yoruba, Okemesi people seem to have a condescending perception of this essential condiment. It is not an unpopular seasoning in broths of Òkèmèsí people and this condescension of an exemplary condiment, Yoruba situate in the aphorism, which Tolulope Abisodun Oluremi1 and Olumide Olugbemi-Gabriel put in context in their Yoruba Proverb as Impoliteness and Power Negotiator in Kemi Adetiba’s King of Boys (2022). The aphorism is, Irú sọ pé òhun ò jìyà rí, ó l’óhun ò bàjẹ rí, ó l’óhun ò k’àbùkú rí, sùgbón ni’gbà tí ó dé Òkèmèsí, wón pe ní eégbon. Translated, it is rendered as, until it got to Okemesi where its majesty was disdained colossally by reference to it as tick, the locust beans had always thought it was insular to perceptional assault. It particularly never imagined that its honour and respect would be this dragged in the mud. This is because, rather than call the locust beans iru as it is known in the rest of Yorubaland, Okemesi people call it eegbon, which, again in the language of the rest of Yoruba, is tick.

In the hands of politics and politicians, the judiciary, revered and venerated as iru, seems to be nothing other than a leech which the tick is. It also underscores the borderlessness of dishonor that politics can bring the way of an otherwise respectable institution, once it stands in the way of ego and ambition. To politicians, an institution of influence and veneration can be smattered with mud to get at an obstacle.

It is a known truism that the fundamental principle of the independence of the judiciary and the courts underpin the Nigerian legal system. This principle is predicated on the belief that the courts are independent as an organ of government. It is expressed in the popular Yoruba saying that when partridges stand on the ridge of a farmland, their equality can never be in doubt (aparo kan o ga j’aparo kan lo). Like in Orwerllian (George Orwel’s) “all animals are equal,” which privileged animals tinkered with to read “but some are more equal than others,” aparo kan o ga j’aparo kan lo was eventually inflected to read “except the one that mounts the ridge top” (af’eyi t’o ba g’ori ebe). Embedded in the assumption of the equality of all the three arms of government is the philosophy of the centrality of the judiciary, the concept of justice and the rule of law as the hub of Nigeria’s democratic rule.

Like in all democracies of the world, Nigeria operates a tripartite, co-equal, arms of government which are the executive, legislature and the judiciary. While the legislature makes laws, the executive carries out the “made” law while the judiciary interprets the law. Aware that in all human societies, tendencies exist for human beings to go off the handle, the Code of Conduct for judicial officers was constructed as a copious guide to judicial ethics. This is executed by the National Judicial Council (NJC) which is one body entrusted with discipline, placement and promotion. In specific terms, the NJC is empowered to discipline judicial officers who run foul of the 5th schedule to the Constitution of the Federal Republic of Nigeria (FRN) 1999 as amended.

However, this exhibition of the power to terminate the appointment of judicial officers in Nigeria by the executive has posed a huge subject of examination to legal scholars. In many instances like the recent example of Osun State, governors have gone outside of their boundaries to make eegbon of the iru which the Nigerian judiciary was designed to be. Rather than tailor the procedure employed in disciplining and termination of appointments to follow the constitution, whims and caprices of the executive is the order of the day.

The history of the NJC began under the goggled despot, General Sani Abacha. At the tail end of his regime’s authoritarian rule, the Nigerian judiciary lost its savour, glory and sacredness. There were hues and cries about how low the Nigerian judiciary had sunk and the cries compelled General Abacha to constitute a Judicial Panel saddled with the task of reform/reorganization of the judiciary. It was headed by Justice Kayode Esho (rtd). Within six months, three months behind schedule, the panel’s report was out. Though the report did not come to light in the lifetime of the late General, it became the forerunner of the establishment of the Council. The NJC’s creative philosophy was hinged on the need to insulate the judiciary from the whims and caprices of the executive and thus guarantee the independence of this arm of government. This projected independence is a major kernel of democratic governance all over the world.

As per the 1999 Constitution, a judicial officer may only be removed from office on any of the following grounds: Misconduct, inability to discharge the functions of his office and appointment or contravention of the Code of Conduct. For misconduct, it must be one which has the tendency to have an impact on the officer’s general perception by the public. Simply put, the misconduct includes one which has a bearing on the discharge of his official duties and his standing as a judicial officer. Such misconducts may include corruption, abuse of office, conviction for a criminal offence, drunkenness etc. However, it must be said that for a private misconduct to qualify as misconduct in the term being used here, such acts or infraction of the said judicial officer in his private capacity that will justify his removal from office must have been grave and scandalous, one which attracts public ridicule. In A.G. Cross River State of Nigeria v. Esin, where the removal from office of the Respondent, a Judge of the Cross River State High Court, was based on allegations of misconduct that did not have bearing with his official duties as a judicial officer, as per Katsina-Alu JCA, the court ruled that the actions of the respondent as manifest in letters he wrote to the principal of a school and an officer in his wife’s work place, did not constitute misconduct that was capable of justifying his removal from office as a judicial officer.

The second ground is what is called inability to discharge functions of his office. The wideness of the scope of this ground has been acknowledged. The nature of the said inability to discharge functions of office may arise from infirmity of mind or body. It tends to imply that a judicial officer may be removed from office if he becomes insane or of unsound mind or if he suffers from some mental delusions which may affect to a large extent, his capacity to discharge the functions of his office. Suffering from any form of bodily harm or physical infirmity which renders him incapable of discharging the functions of his office, is also a ground for removal. The disabilities may range from paralysis, persistent sickness which results in constant and prolonged hospitalization, loss of speech, inability to hear etc.

A ground of insanity as basis for removal of a judicial officer from office may however prove difficult to prove. This is because the establishment of insanity is medical and will necessitate cogent medical evidence presented to the investigating panel and which must convincingly prove the fact of insanity.

The third ground, which is breach of the Code of Conduct, refers to two codes which are the Code of Conduct for Public Officers in Nigeria and the Code of Conduct for Judicial Officers in Nigeria. The contravention of the provisions of any of the two Codes of Conduct could be a ground for the removal of such officer from office. While the Code of Conduct for Public Officers is generally applicable to all public officers in Nigeria, it prohibits officers who are still in service from putting personal interest above official duties. It also prohibits a public officer from receiving two or more emoluments of public offices simultaneously, nor participating or engaging in running or management of any private business. The Code also specifies that a public officer should not solicit for or accept gifts from any person on account of his official duties and prohibits some public officers from engaging in certain acts, even after their retirement from office, like the Chief Justice of Nigeria.

As we shall see presently, in his bid to make an eegbon of the judiciary’s iru, Governor Adeleke and his House of Assembly appear to have violated the procedure for removal of judicial officers from office in Nigeria. The accepted procedure is that, once the judicial officer has been investigated and found liable for allegations preferred against him, the ground is leveled for the process of his removal. The appointor of the judicial officer is also the one constitutionally empowered to remove him from office and that is the President of Nigeria or the governor of a State in Nigeria, as the case may be. However, both must follow the laid-down process.

The controversies centered on which body between the NJC and the Senate and House of Assembly as the case may be, constitutionally possesses the power to receive petitions against judicial officers. The resultant controversies are attributable to the dichotomy created by different constitutions of Nigeria. For instance, the provisions of the 1979 constitution are unambiguous about its intentions of providing different criteria for the removal of judicial officers basing this on their designations. It can be found in Section 256 of the 1979 Constitution. This particular provision seems to indicate that the removal of the Chief Justice of Nigeria and the Chief Judge of a State can be carried out without recommendation from the Federal or State Judicial Service Commission. Recommendations from this commission, going by the purport of that section of the constitution, were only mandatory in application to other judicial officers. The 1989 Nigerian Constitution also contained similar provisions. It went ahead to empower the Senate and the House of Assembly of a State as appropriate to receive and investigate petitions written against the Chief Justice of Nigeria and the Chief Judge of a State respectively.

It must be equally borne in mind that the National Judicial Council came on board only in 1999 and the conclusion is only logical to be stated that under the provisions of the two Constitutions stated above, the address of their states Houses of Assembly or the Senate were enough for the removal from office of these judicial officers without the recommendation of the then Federal Judicial Service Commission or the State Judicial Service Commission. The constitutions cited were emphatic that the involvement of the Federal or State Judicial Service Commission in the process of removal of these judicial officers was immaterial. On the process of removal of any of these judicial officers earlier mentioned, all that is needed is an initiated petition or complaint that is addressed to the Senate or the House of Assembly of a State against the Chief Justice of Nigeria or the Chief Judge of a State. The complaint so written would then be investigated by the appropriate legislative body and upon being proven, would necessitate an address to either the President of Nigeria or the Governor of a State, which calls for the removal of the judicial officer. The question then becomes, does the position of the 1979 Constitution, as stated above, in respect of these judicial officers, still subsist under the 1999 Constitution?

We must turn to Section 292 of the 1999 Constitution for an answer to this poser. An examination of the provisions of this Section 292 has the tendency to lead us to the hasty conclusion that only judicial officers who are referenced in subsection (1)(b) of the section are entitled to the recommendation of the NJC before they may be removed from office and that those under subsection (1) (a) do not enjoy such privilege. However, many governors of states in Nigeria have explored and exploited the provisions of section 292 (1) (a) (ii) to remove the Chief Judges of their states. The governors’ interpretations of this section are that the power of investigation and recommendation for the removal of the Chief Judge of their States resides in the House of Assembly and not the NJC. Therefore, complaints against the CJ get addressed to the House of Assembly and upon receiving these complaints, they investigate them and recommend the removal of the CJ to the governor. That was what happened last week in Osun State.

Paragraph 21 (b) and (d) of Third Schedule to the 1999 Constitution, Part 1 provides a remedy in the same 1999 Constitution and the obvious conclusion drawn from them is that, the NJC has exclusive powers to receive complaints against all judicial officers, as well as to investigate complaints and make recommendations to the President or governors as the case may be.

The power that the section gives the Senate or the House of Assembly is that it may only confirm such removal after and in addition to the recommendation of the NJC. Any reading of those provisions earlier cited that is contrary to this would only provide an inconsistent result, which ultimate effect would be a subjugation of judicial officers to the absolute whims of political office holders, in this particular instance, the President or Governor and legislators. This view may be diametrically at variance with the intendment of drafters and framers of the Constitution.

This position was affirmed by the Supreme Court in the case of Erelu-Habeeb v. National Judicial Council, where the first Appellant was the Chief Judge of Kwara State at all times material to this case. The Kwara State House of Assembly, in a purported exercise of its powers under the 1999 Constitution, sought to exercise disciplinary control over the 1st Appellant by his removal from office. The House of Assembly served a letter on the Chief Judge to appear before it to answer charges of misconduct but the 1st Appellant challenged the powers of the State House of Assembly in the exercise of disciplinary control over her. The Supreme Court held for her and ruled that the House of Assembly had no constitutional power to exercise any form of disciplinary control over the Chief Judge of the State without the prior recommendation of the National Judicial Council. Mohammed JSC read the lead judgment.

However, the NJC reserves the power to discipline erring judicial officers. It nevertheless does not exercise this power suo motu. Any aggrieved person will have to invoke the disciplinary jurisdiction of the Council against any judicial officer by way of petition or complaint to the Council. This translates that where there are no complaints against any judicial officer, no matter how obvious the judicial misconduct allegation may be, the Council will play the ostrich.

In cases where there are complaints or petition against a judicial officer, the Council will carry out an investigation, so as to ascertain its authenticity. If in the course of the investigation, the Council finds out that the allegations were trumped up, it will abandon the petition. It wields its power of investigation by constituting a panel of inquiry or a committee to investigate the allegations. In the course of doing this, both the petitioner and the respondent are offered the opportunity of being represented by legal counsels. This is in tandem with the provisions of S 36(1) of the Commission which enjoins even Administrative Tribunals or Bodies exercising judicial or administrative functions to accord fair hearings to all parties involved.

Adeleke’s motive may be noble – and it may not be. His goal may be to wean the state judiciary of APC’s creepy politics but good things done in a bad way can never be crowned with nobility. But some errors are never late to correct. Which is why, we must agree with and hail Governor Adeleke’s latest claim that he never initiated the suspension of the CJ. This is gladsome. Doing othersie will be akin to what Yoruba call, “at’ehin r’ogbon Ijakumo.” Ijakumo is a fearsome, wondering wolverine renowned with passing through a path only once. So when the wisdom of an action comes after the act, Ijakumo and its ways are invoked in the rhetoric of rebuke. It can also pass for what Fuji music great, Kollington Ayinla, called “o nu’di ko to ya’gbe, igba to ya’gbe tan, o ni ohun ti nu’di l’ekan!” (he cleans his anus before defecating; but after defecating, he says he had earlier cleaned his anus!). In Osun State last week, the Muslim faithful in the Government House prayed before ablution – o kirun k’o to s’aluwala!’ The governor’s advisers should have done better than they did.