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Beyond Jumbo-Ofor and Osun State CJ Brouhaha

20 Nov 2012

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Rauf Aregbesola


Ibukunolu Alao Babajide raises questions that the Jumbo-Ofor swearing-in and Osun State CJ imbroglio have engendered

The Nigerian Constitution, I dare say is one of the best in the world, but can I say the same about those who operate it.  Oftentimes I see the Nigerian elite as the most inept, incompetent, corrupt and intellectually bankrupt on the face of the earth, who endowed with one of the best Constitutions on earth misuse it for self aggrandisement and crude corrupt accumulation of the commonwealth, oblivious of the consequences of their actions on generations yet unborn.  I digress too far as the simple issue I wish to address within the Rolls Royce Nigerian Constitution is how to determine how many states of origin a candidate for judicial office should have to qualify for that office.  There are several possibilities.  Section 25 of the Constitution grants citizenship from any of four grandparents.  If the four come from Adamawa, Ogun, Imo, and Akwa Ibom States, which of the four is the citizen's state of origin?  If citizenship equally derives from anyone of them, all or any should also be the state of origin, in addition to a fifth state of the spouse.


Should the father's state of origin be it?  That then discriminates against the mother, and her mother whose states of origin derive citizenship.  Must a citizen be forced to elect one state the state of origin? I hear that a number of political appointments of women in high political office are based on the state of origin of their husbands.  Can their husbands be considered for similar office based on the state of origin of their wives?  What if over the years, employed in the judiciary of a state claimed as state of origin a person favourably advances within the state judiciary to the extent that when that person wishes to advance as a judge of a higher Federal Court of Appeal, unfortunately misses the bid, can the person a few years later, use the state of origin of the spouse (male or female) to get the ticket?  Is any law contravened in letter or spirit?  Is unmerited advantage gained over those who patiently stay in one state and do not change their own states of origin.  Should they lose precedence, and can male spouses benefit?


These issues are posed to open our minds to the moral, ethical, and legal permutations and computations that the use of ethnical and state of origin based criterion may evoke particularly as the main and first qualification of a Judge is integrity.  Once this is impugned, all other qualifications are valueless.  Is it right, wrong or amoral to alter one's state of origin in a bid to gain higher judicial office?  That question begs the other, who polices the process and who determines whether this may be done, undone, or set as a precedent that may become future practice?


At a time when our democracy and our organs of government are under serious attack of legitimacy, daily corruption scandals inundate our senses of what is right and wrong and what should be punished or overlooked, when those set free in Nigeria, tried on the same facts in UK bag convictions, and public confidence in the Executive, Legislature and the Judiciary are at the lowest ebb, a very serious effort to shore up standards, transparency, and openness in the way state institutions operate is necessary. Constitutional executive immunity is abused as a shield to obscenely enrich with impunity and flee Nigeria's shores.


S.15(1) says "The motto of the Federal Republic of Nigeria shall be Unity and faith, Peace and Progress." S.15(2) says, "Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited."  Although this section is placed within the non-justiciable part of the Constitution, it should inform the spirit and letter of how judicial appointments are made but we must be very careful not to encourage such divisive factors to determine who gains judicial office.  We need to go back to basic principles and ask ourselves why our democracy is not working.  The first bulwark of democracy is the people and their votes.  Elections are rigged and political parties refuse to engender internal democracy.  Are we democrats or demon-crats whose objective is the imposition of demonic visscisitudes on the peace loving peoples of Nigeria?  In certain jurisdictions, especially in the USA, judges are elected.  In others like the United Kingdom, they are selected, while in others like France, they are promoted through a special school for the magistracy from whence they are promoted until they reach the highest court.  In this process, the underlying principle is to make incorruptible persons who are well schooled and learned judges and who have the integrity and moral force to dispense justice without fear or favour. 


There are four estates of the realm, the fourth one, the Press is a debatable estate.  The Executive, the Legislature and the Judiciary are the main realms and they have distinct roles to play and act as checks and balances one on the other.  This emanated from the absolutism of the divine reign of kings when all three powers in the hands of one sovereign led to abuse and mass abrogation of the rights of the people.  Many monarchies succumbed to revolutions that cost the lives of monarchies while others quickly relinquished powers so as to become constitutional monarchies to ameliorate the saying that power corrupts, and absolute power corrupts absolutely.


There is generally no consideration for state of origin in the appointment of judges of any Court in Nigeria, but the rules of federal character have crept into the process.  Whether for good or bad, I will not opine, but then has this been openly debated, legally tested or a transparent and open methodology applied in the practice of the application of the state of origin rules.  I started this piece by asking what state will one elect?  Why should I elect any anyway, and if I elect can I pick and choose to my heart's delight shopping for the state of origin that suits my personal situation and is expedient for the moment. 


Sections 231, 238, 250, and 270, of the 1999 Constitution as amended require legislative confirmation for the Chief Judges of the different Courts and the recommendation of the National Judicial Commission to the appointing executive officer.  In the absence of express requirement of a state of origin, the imposition of such a requirement can only be by convention, practice, and tradition and not by the force of law.  When such a lacunae exists in the law, should we not set a standard way to approach the matter and be clear such that there is no possibility of anyone being adversely affected because of an unclear and opaque system.


Let us also look at the roles of different bodies.  As the head of the Judicial arm of government at the federal level, and the Chair of the National Judicial Commission, the Chief Justice of the Federation must have powers above being a rubber stamp.  The occupier of that office must have a residual and inherent power to determine the bona fides, and the absolute transparency of the process. Where at any point she discovers that a candidate has used different states of origins in the past, she must have the power to defer swearing in and resolve the matter.  Does the House of Assembly of a State have the same power when it confirms a candidate? That is debatable but then just as the Chief Justice, the Osun State House of Assembly should be able to show cause.  Why have they refused to confirm?  Is the candidate not qualified, or at the very least, damaged in any way or compromised such that the office should not be offered to the candidate.


The issues that we should seriously consider are whether gender parity rules allow a woman to tag on the state of origin of the husband, whereas a man is denied the tag on the state of origin of his wife.  There are international conventions such as the Convention on the Nationality of Married Women 1957, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979 and the optional protocol of 1999 that expresses the equality of men and women; we should respect them. At the third ordinary session of the African Union, Heads of State and Government in Addis Ababa in July 2004 adopted the Solemn Declaration on Gender Equality in Africa (SDGEA).  These international conventions and agreements settle the equality of men and women.  We should follow the spirit and letter of these instruments such that women are not relegated to extensions of the estate of their husbands but equal and independent in all aspects and areas of life. 


The Chief Justice of the Federation has the inherent and residual power to query and determine whether any error on the face of the record is clarified and resolved. When she exercises that power, all we should do is support her and be patient in seeing how she exercises her moral and legal judgment.
Babajide is with UNMISS, Juba

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