CJN should not head National Judicial Council, Adoke says in new book

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  • Bello Adoke

The former Attorney General of the Federation (AGF) and Minister of Justice Mr Bello Adoke has called for the overhaul of Section 153 of the 1999 Constitution establishing the National Judicial Council (NJC) to create a robust and balanced judiciary.

Consequently, he has suggested stripping the Chief Justice of Nigeria (CJN) of the powers of heading and nominating members of the NJC.

In Chapter 25 page 252-254 of his new book “Burden of Service”, Adoke suggested reverting to the 1979 Constitution that provided for the Federal Judicial Service Commission (FJSC) and the State Judicial Service Commission (SJSC) arguing that the separation will enhance effective and a robust judiciary in Nigeria.

On the composition of the NJC, the former chief law officer suggested the appointment of a retired Justice of the Supreme Court or Court of Appeal to head the NJC for purposes of check and balance.

He noted in the book that the present situation where the CJN heads the NJC and nominate majority of the members make the body a “puppet” of the CJN.

According to him “Out of 24 members, the CJN alone appoints 14. By the time he or she is added to the number, it becomes 15. Effectively, the NJC is a puppet of the CJN. No single individual should have the power to appoint two-thirds of such a body that handles issues of appointment and discipline. What happens when the CJN also needs to face disciplinary action? The composition and mode of appointment are two issues that have to be critically reviewed and amended”.

Writing further, the former AGF said “In my considered opinion, the NJC should not be headed by the Chief Justice. It makes things difficult as it creates a scenario in which the CJN oversights himself or herself”.

continuing he said “The body should be headed by a retired Justice of the Supreme Court or Court of Appeal, to be appointed by the President. The powers to recommend for appointment and discipline that were vested in the FJSC and SJSC in the 1979 Constitution could be retained in the NJC, but the Judiciary cannot self-regulate. It does not provide for check and balances and this is against the very nature of the Federalism that we copied from the United States of America. The Judiciary cannot be an island”.

Writing on the appointment of judicial officers at both the federal and state levels, Adoke said “the manner in which the NJC discharges its function particularly with respect to the recommendation of heads of courts for appointment by the executive has the potential of occasioning conflicts . Under the present arrangement, the NJC makes recommendations to the executive for appointment of heads of the various courts and expect that such recommendations should be accepted and acted upon by the executive. This, to my view, unduly limits the executive in their exercise of the power of appointment. The potential for conflict arise where the executive does not accept the recommendation of the NJC and instead desires to appoint another person who may not have been recommended by the body”.

Citing the case of former Rivers Governor Mr. Rotimi Amaechi, Adoke said “The conflict that could arise between the NJC and the executive with respect to the appointment of the head of court was glaring in the case of Rivers State. The judiciary was virtually locked down for nearly two years when the governor, Rt Hon. Amaechi, and the NJC could not agree on who should be Chief Judge. This snowballed into a Constitutional crisis, as there was no sitting Chief Judge or Acting Chief Judge to swear in the Governor-elect, Chief Nyesom Wike, in May 2015. It took some ingenuity and sagacity for relevant provisions of the Constitution to be invoked to allow the Chief Judge of a Neighbouring state to swear him into office”.

He added that “the NJC, for all its merit, still remains an anathema in a federal structure. The constituent units of the federation should be allowed the freedom to do certain things that are perculiar to them, including the appointment of judges, without reference to the NJC, which is a federal body. The present system only creates a pseudo unitary Judiciary in a federal system with all its attendant negative consequences for the federating units. It is, therefore, my view that Nigeria should go back to the Constitutional arrangement under the 1979 Constitution with respect to the judicature, which respected the federal arrangement“.

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