The petition against Justice Jumbo-Ofor ought to have been discountenanced as it violates section 42 of the Constitution which prohibits discrimination arising from circumstances of birth or sex, writes Femi Falana, SAN
In exercise of her powers under Section 238 (2) of the Constitution of the Federal Republic of Nigeria, 1999 President Goodluck Jonathan recently appointed 12 High Court judges including the Honourable Justice Ifeoma Jombo-Ofor as Justices of the Court of Appeal. The appointment was sequel to the recommendation of both the Federal Judicial Service Commission and the National Judicial Council presided over by the Honourable Chief Justice of Nigeria.
As soon as the appointment was made by the President the former High Court judges became Justice of the Court of Appeal in line with the Supreme Court decision of OGBUYIGA v OKUDO (1979) 1 All NLR 105. Having not been removed as a Justice of the Court of Appeal by the appointing authority the refusal of the Honourable Chief Justice last week, to administer the oath of office on the Honourable Justice Ifeoma Jumbo-Ofor cannot be justified in law.
Since the appointment of the Honourable Justice Ifeoma Jombo-Ofor has not been validly set aside she should not have been subjected to any embarrassment on the basis of a belated petition that sought to challenge the appointment on the ground that she is not an indigene of Abia State. In other words, the petition ought to have been discountenanced as it violates section 42 of the Constitution which prohibits discrimination arising from circumstances of birth or sex.
The attention of those who are opposed to the appointment of the Honourable Justice Ifeoma Jumbo-Ofor should be drawn to the case of the case of AUGUSTINE MOJEKWU v CAROLINE MOJEKWU (1997) 7 NWLR (PT 512) 283 where Tobi JCA (as he then was) held inter alia:
“All human beings - male and female- are born into a free world and are expected to participate freely, without any inhibition on grounds of sex, and that is constitutional. Any form of societal discrimination on grounds of sex, apart from being unconstitutional, is antithesis to a society built on the tents of democracy which we have freely chosen as a people”
I have had cause to criticise the embarrassing exclusion of Justice Ijeoma Jumbo-Ofor from the list of the new Justices of the Court of Appeal who were sworn in by the Chief Justice of Nigeria, the Honourale Justice Mariam Aloma Muktar last week. To that extent I support the unanimous resolution of the Senate that the new Justice of the Court of Appeal be sworn in without any further delay.
It is not in dispute that the dropped judge hails from Anambra state. But she is married to an indigene of Abia State and had worked there as a high court judge for 14 years. Her claim that she is an indigene of Abia State by virtue of her marriage cannot be faulted under the FCC Act. After all, the law has defined an "indigene" as a person whose parents or grandparents are from a particular local government in a state or who is accepted by a Local Government in a state. Provided no one is allowed to claim be an indigene of two states at the same time.
Therefore, there is abundant evidence that Mrs. Justice Jumbo-Ofor has been accepted as an indigene of Abia State. Hence the Abia state government has endorsed her appointment. In any case, in so far as the FCC guideline or Gazette is targeted at women it is patently unconstitutional by virtue of section 42 of the Constitution. Furthermore, the exclusion of the dropped judge violates her human rights to equality before the law and dignity guaranteed by Articles 3 and 5 of the African Charter Act. It is germane to point out that the issue of indigeneship can no longer stand because it is inconsistent with Article 12 of the AHRP which has guaranteed the right of every individual to freedom of movement and residence in Nigeria.
On its part the Senate should go beyond passing resolutions on the institutionalised oppression of women through discriminatory official policies and customary practices. The Senate should go ahead to ask the Federal Character Commission to withdraw the illegal guidelines that has restricted married women to their states of origin in the area of appointment. More importantly, the National Assembly should immediately collate and repeal all obnoxious laws that have reduced women to second class citizens contrary to the provision of Section 42 of the Constitution.
In the light of the foregoing, the Honourable Chief Justice of Nigeria should proceed to administer the oath of office on the Honourable Ifeoma Jombo-Ofor without any further delay in the interest of justice and fair play. Let those who are opposed to the appointment challenge it in court.
Falana, SAN is a human rights lawyer and winner of the International Bar Association’s Bernard Simmons Award