Refusal by the Chief Justice of Nigeria (CJN), Justice Aloma Mukthar, to swear in Justice Ifeoma Jombo-Ofo as a justice of the Court of Appeal to represent Abia State on the ground that she is not an indigene of the state has drawn the ire of many. Not just that, the development has raised fundamental issues regarding citizenship by birth or marriage. Tobi Soniyi puts these issues in perspectives. Additional reports by Anayo Okolie and Ayodele Opiah
Until the National Judicial Council (NJC) takes a final decision on the refusal by the Chief Justice of Nigeria, Justice Aloma Mukthar, to swear in Justice Ifeoma Jombo-Ofo as an Appeal Court Justice, the controversy trailing the CJN’s action may not subside quickly. Since the CJN’s action, the fate of Jombo-Ofo has been hanging in the balance as she could neither function as a judge of the high court where she was nor take her seat at the Appeal Court, despite the approval of her appointment by President Goodluck Jonathan as a judge of the appellate court. And until she is sworn in, her appointment is more or less null and void while she cools off in the limbo.
As at today, the fact in public domain which has remained undisputable is that Jonathan had endorsed the appointment of Jombo-Ofo alongside 11 others as appeal court justices. But that appointment is not valid until she is sworn in by the CJN. Nevertheless, the embattled judge’s ordeal began when the CJN allegedly received a petition alleging that Jombo-Ofo was falsely representing Abia State, having hailed from Anambra but married to a citizen of Abia State.
The perceived false representation by Jombo-Ofo was discovered after she was screened by NJC and consequently recommended to the President for appointment. Following investigation on the petition, her file with the NJC was checked, which revealed that she actually hails from Anambra and not Abia State as claimed by the learned justice.
The CJN, as a result, found herself in dire strait moreso that the President had already approved the appointment. Besides, the trend brought back reminiscences of the stories of two other female justices who had claimed their husbands’ states of origin and consequently denied promotion to the Court of Appeal.
Mukthar, therefore, came to the conclusion that Jombo-Ofo deliberately concealed vital information and as such, should not take the judicial oath. The CJN was said to have been irritated by the fact that the NJC did not cross-check the claim by Jombo-Ofo bearing in mind that two other female justices earlier recommended for appointment into the Appeal Court bench had been dropped on the same principle. The CJN reasoned that it was better to stop Justice Jombo-Ofo from taking the oath of service. This decision was however aimed at entrenching equity and fairness in the process of appointing justices and ultimately setting standards. She is also poised to correcting some measures of imbalance which had characterised appointments of judges in the past.
Mukhtar’ position was further strengthened by the fact that Anambra State already had three justices of the Court of Appeal while Abia had only one. It was, therefore, believed that to allow Jombo-Ofo’s appointment into the appellate court would result in an unfair practice which in the final analysis, would imply that Anambra has four justices of the Court of Appeal while Abia has only one.
In addition, it is also assumed that such an arrangement would violate one of the principles of Federal Character Commission Act known as the “Guiding Principles and Formulae for the Distribution of all Cadres of Posts,” created in pursuance to the Federal Character Commission (Establishment, etc) Decree (1996 No 34).
Also, Part 11, Definitions, et cetera, Clause 11 provides that: “A married woman shall continue to lay claim to her state of origin for the purpose of implementation of the federal character formulae at the national level.” This policy is contained in Official Gazette No 74, Vol 84.
Although, the CJN’s intention seems noble and commendable, not many people agreed with her. Thus, a Senior Advocate of Nigeria (SAN), Mr. Femi Falana, did not hesitate to criticise the action when he said: "In exercise of his powers under Section 238 (2) of the 1999 Constitution, President Jonathan recently appointed 12 High Court judges including the Honourable Justice Ifeoma Jombo-Ofo as Justices of the Court of Appeal. The appointment was sequel to the recommendation of the NJC 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. Having not been removed as a Justice of the Court of Appeal by the appointing authority, the refusal of the Chief Honourable Justice to administer the oath of office on the Honourable Justice Ifeoma Jumbo-Ofo cannot be justified in law."
According to him, since the appointment of Jombo-Ofo had not been validly set aside, she should not have been subjected to any embarrassment on the basis of what he described as a belated petition that sought to challenge the appointment on the ground that she was 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 has prohibited discrimination arising from circumstances of birth or sex," he added. Falana cited an Appeal Court judgment 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 antithetic to a society built on the tents of democracy which we have freely chosen as a people."
National Chairman of Human Rights Commission, Dr. Chidi Odinkalu, said: "In one sentence, the decision of CJN Mukhtar in this matter pertaining to Justice Jombo-Ofo’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-Ofo’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 on 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-Ofo is also wrong in law. Having been involved institutionally in the process of appointment, the CJN should either be rescued 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.”
The NHRC boss pointed out that "once the instrument of appointment is executed, Justice Jombo-Ofo 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.”
Executive Director of Legal Defence and Assistance Project (LEDAP), Mr. Chino Obiagwu, also condemned the refusal to swear in Jombo-Ofo on the ground that she was nominated from her husband's state rather than from her state of origin. He argued that LEDAP was concerned that the decision was arbitrary, unfair and inconsistent with previous instances in which a number of female justices had been appointed, promoted or elevated on the basis of their states of marriage rather than states of birth.
LEDAP said it was worried that such practice of denying married women judicial appointments because of their states of marriage runs contrary to principles of fairness adding that it would be detrimental to women’s interest in judicial service.
"It is contrary to the entire values of marriage and of the Nigerian society. When a woman marries, she adopts her husband's family name and for all intents and purposes, has changed her place of origin to her new home. At the same time, she has lost all entitlements of her place of birth. Now to deny women in judicial services or in any sector whatsoever benefits she is entitled to from her place of marriage is completely unjust and discriminatory."
The group called on NJC to take steps to review such unfair practices in the judicial sector with a view to ensuring that policies and practices are consistent and as well, conform to standards of values of the society.
Sadly, the controversy has again raised questions on alleged vulnerability of women in public service. One of such questions is: Is it unethical for a woman to choose between her place of birth and her husband’s state as her state of origin? Another question is: What is the place of Section 42 of the Constitution vis-a-vis the “Guiding Principles and Formulae for the Distribution of all Cadres of Posts,” created in pursuance of the Federal Character Commission (Establishment, etc) Decree (1996 No 34)?
This section of the constitution provides as follows: “(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria or other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions.”
Although, disagreement abound on the appropriateness or otherwise of the CJN’s decision not to swear in Jombo-Ofo, there is unanimity among many that there is an urgent need to review the policy restraining married women from attaining the peak of their careers in their husband's state of origin.
Against this background, Justice Olufunlola Adekeye, a retired Supreme Court judge had earlier in the month, at a valedictory session held in her honour, set the tone for the review that is being agitated even before the Jombo-Ofo saga emerged. She appealed to the CJN, chief judges of the states, the Judicial Service Commission and NJC to review the policy prohibiting married women from attaining the peak of their careers riding on the back of their husbands’ states of origin.
Adekeye who noted that complaints of this nature were becoming increasingly rampant within the judiciary, stated that most women transfer their services to states of origin of their husbands immediately after marriage which, according to her, was logical and in compliance with the tenets of marriage that the two spouses become one.
She, however, regretted that whenever there is a vacancy at the helm of affairs in the husband's state of origin, the woman would be denied the right to occupy the office despite putting so many years into the service in such a state. She further observed that the woman would also have hurdles to cross in her own state of origin if she opted to transfer her service to such state. The latter hurdle, she said, arises because the woman has not worked in her own state of origin, adding that authorities in such state would not be in a position to assess her suitability for the office properly.
"It is my view that during the existence of her marriage, the name of her husband must qualify and make her eligible to reach the peak of her career in her husband's state. I think it is unconstitutional as well as discriminatory to deprive her of her promotion in her acquired state as a citizen of Nigeria, by virtue of Section 42 of 1999 Constitution of the Federal Republic of Nigeria."
Also speaking on the matter, constitutional lawyer, Prof. Itse Sagay, said: “It is not a legal thing. There is no law that says any representative must be an indigene of where you come from. There is no basis on which the CJN is acting. It is baseless. She is the one who would have been leading this kind of protest to protect a lady being deprived of her rights where she is married and working to earn the rights of her labour.
“She should not be the one subjecting a fellow woman to this kind of act. CJN is guilty of a great wrongdoing by championing this kind of act instead of protecting the rights of women. There is one minister who represents her husband’s constituency in one of the Northern states. The CJN’s decision is baseless.”
In the same vein, human rights lawyer, Mr. Bamidele Aturu, said: “It is indefensible and very wrong of the CJN to withhold the swearing-in of Justice Jombo-Offo. It is in the federal character which the CJN depends on that the judge has the right to be sworn in. Her action is unconstitutional.”
Another legal practitioner, Emeka Ngige (SAN), believes the matter is subjudice. He said: “Somebody has gone to court. Mrs. Falana has gone to court to sue the CJN. With that, I don’t think I should make any further comment on that.”
But Mukthar found an ally in Dr. Joseph Nwabike (SAN) who said the CJN’s action was right. He condemned what he described as the political undertone introduced into the matter by National Assembly’s resolution, asking the CJN to swear in Jombo-Ofo.
“I don’t think that the Chief Justice of Nigeria acted improperly or unconstitutionally by not swearing in justice Jumbo-Ofo as a justice of the Court of Appeal. We must recognise that since the chief justice is vested with the duty to swear her in after her confirmation by the National Judicial Council, the chief justice still retains some measures of discretion to exercise having regard to the facts available to her at the time immediately preceding the swearing-in ceremony.
“This type of situation had occurred in the past. It is now open to Justice Jombo-Ofo to satisfy the Chief Justice that she has not breached any law in the process leading to her nomination and appointment. I must confess that the political dimension introduced to it by the resolution of the National Assembly and the media is unjustified. I don’t think that the National Assembly is entitled under the constitution to intervene in the matter since they have no role to play in the process leading to her nomination and appointment in the first place.”
Reacting, National Women Leader of the Action Congress of Nigeria (ACN), Hajiya Hafsat Mohammed, said: “We are really disappointed that Justice Ifeoma Jumbo-Ofo has not been sworn in as one of the judges of the Appeal Court.” Mohammed noted that Jombo-Ofo who hails from Anambra State and got married to an indigene of Abia State, had spent almost all her life in Abia, adding that she had put the best part of her intellectual capacity into the service of Abia State and regretted that when she was supposed to be elevated to a higher position the issue of indigeneship was always played up.
“So, we believe that justice has not been done and we are calling on the Chief Justice of the federation as a woman to see reason in these issues and swear her in because we celebrated with her when she was appointed the CJN of federation. We believe she should also look into women issues. That was also the reason we were at the constitution review hearing to ensure that we amend the clause of citizenship so that women will be given their full right. So, when a woman is married to a person in another state, she will have 100 per cent right to claim that state as her own state.”
However, the Convener of Nigeria Centenary Group (NCG), Mr. Ariyo-Dare Atoye, warned Nigerians against hasty reactions to the matter. Rather, he craved that they look into the merit of the CJN’s action and not condemn it.
“We have to exercise serious caution and look at the merit of the objection raised by the CJN. This issue bothers more on federal character than merit. It is now left for us to agree if it is logical to use one state to climb to a stage and use another to move to the next level by reason of marriage due to vacancies in the two states.
“This is also repeating itself here and we have to look at the merit of the CJN's concern. Nigeria should always look at issues critically before responding. If this trend should continue, what is the implication for quota system that we practise and also the case of manipulation?
“I think the CJN is very right by allowing Nigerians to know more about this 'manipulation'. If it is a general consensus that the trend should continue, so be it, but I think we should commend the CJN for standing on the part of truth and not gender bias. It is good that this issue has come to the fore at a time we are debating a further amendment to the constitution. I will urge the CJN and the NJC to make a case on this issue and other related concerns before the National Assembly.
“We may not be lucky next time on issues like this as it may cause serious controversy. The power that be in a state may not be on the same page with a beneficiary, and then we may have to settle between antecedents and the law. Therefore, we should find a way to address this issue constitutionally especially on matters of quota system and federal character to be very clear to all,” Atoye advised.
But the Abia State Attorney-General and Commissioner for Justice, Umeh Kalu, said facts surrounding the decision of the CJN not to swear in Jombo-Ofo remain sketchy. According to him, information at the state government’s disposal on the matter has mainly been drawn from the realm of public discourse.
Kalu also insisted that the government and people of Abia State were yet to get the full facts leading to Jombo-Ofo’s swearing-in being truncated, arguing that the issue of appointment and swearing in of judges basically resides with various constitutional bodies created by the constitution to handle such matters and therefore distanced the state government from them.
“Correspondence and communication on appointment of judges as it concerns states are normally handled by the chief judge who is the head of the Judiciary in the state. The executive arm of government does not interfere or interface with federal judicial bodies on the appointment of judges. To that effect, if there was communication between the state and the CJN, it would have been handled by the chief judge of the state.
“When the controversy over the status of Justice Jombo-Ofo came to the knowledge of the Governor (Theodore Orji), he wrote confirming the fact that Justice Jombo-Ofo is a citizen of Abia State by marriage and had worked in Abia State as a judge for about 14 years and enjoyed all the rights and benefits of Abia citizenship and it was a confirmatory letter stating the above facts, made in good faith for the purpose of protecting the interest of a citizen of Abia State in the due discharge of his duty as Governor of the state.
“From my experience as a member of my state’s Judicial Service Commission that handles the issue of nomination of judges for appointment, I am aware that when vacancies are declared, it is the duty of the chief judge to seek for recommendations from sitting judges for persons to be appointed judges. At the close of recommendations from judges, the chief judge shortlists persons based on the recommendations, seeks opinions from the Bar branches and security agencies on the shortlisted candidates and forwards those recommendations with the views expressed on them to the Judicial Service Commission which would then review the shortlisted persons, vote on them on the basis of facts available to them on the suitability of those persons for purposes of their nomination to the National Judicial Council for final consideration and approval.
“For federal judicial appointments, like that of Court of Appeal that is currently generating controversy, it is the chief judge that forwards a list to the President of the Court of Appeal and it proceeds from there to the Federal Judicial Service Commission and the National Judicial Council. The state government, strictly speaking, in terms of the executive, has no input whatsoever and neither is the Judicial Service Commission of the state involved,” Kalu remarked.
Also submitting, another lawyer, Nnamdi Amasiatu, said: “Nigeria is still sitting on the fence and this time with lots of trepidation. I keep wondering when we shall rise collectively as a people and speak out for justice. In this age of civil emancipation, our judiciary has shot itself to ridicule. The noxious show of what our lordship carried out unanimously by refusing to swear in Justice Ifeoma Jombo-ofo is colossal slap on Nigerians.
“For how long are we going to carry on this way, sacrificing talents on the altar of Federal Character, even to the extent of blighting one's dignity especially a woman? We are agitating for true federalism to empower all sectors of our national life and restore the dignity of all Nigerians. Let the judiciary take the lead and stand on equity and justice to expunge this ill wind by over ruling itself positively and timorously especially when it involves our womenfolk.”
Even though it might be early to draw any conclusion on the cleansing being carried out in the judicial sector by the CJN, a number of people believe that she should rather be commended for her daring ability to promote issues based on merit and not vilify her. But the Jombo-Ofo matter as much interest and how this ends is certainly of interest to all.