Salami: Overcoming The Absurdity By Kayode Oladele

The non-implementation of
the decision of the National
Judicial Council (NJC) to recall
the suspended President of
the Court of Appeals, Justice
Ayo Salami underscores the
appalling intersection
between politics and rule of
law and the influence (or
superiority?) of the former
over the latter. Politics
protects interest while the
rule of law protects rights
and it is generally believed
that in the realm of things, a
man would fight harder to
protect his interest than he
would to defend his rights.
Therefore, when there is a
clash between both, it is
always accompanied by a
host of paradoxes guided by
parochial and insular
tendencies.
To start with, there is no
hope for the promotion of
rule of law in Nigeria if law is
not invoked automatically
without political
considerations or if the
interpretation of law is made
a subject of political
expediency or group
convenience. Therefore, from
legal and constitutional
standpoint, the controversy
surrounding Justice Salami’s
suspension and eventual
reinstatement stems from the
gravely erroneous
assumption and absurdities
created by the political
interference in the work of
the judiciary and the
administration of justice in
Nigeria. Hence, the only body
to resolve the absurdity
which has become one of the
most vexed contemporary
issues in Nigeria today is the
NJC.
The absurdity does not arise
from the Constitution
because the Constitutional
provision is very clear and
unambiguous on the powers
of the NJC to suspend a
judicial officer. The reason,
for this is simple: the
framers of the Constitution in
their bid to ensure the
independence of the judiciary
limits the powers of the
president only to
appointment and removal
while creating special
procedures for both. For
instance, when the President
wants to remove a judge on
the recommendation of the
NJC, he would send the
request to the Senate for
approval, the same way he
would do for the
confirmation of a judge. The
framers of the Constitution
knew that if the president
has to be involved in
everyday summary discipline
of judges, the judiciary will
become an appendage of the
executive in addition to the
fact that the President may
have his own extra-judicial
priorities and interests which
can weigh very heavily in his
decisions and ultimately
impact judicial independence,
obstruct justice and rule of
law.
The power to suspend a
judge under the 1999
Constitution (as amended) is
vested on the NJC, not the
President. The Constitution in
the Third Schedule, Part 1
par 21 states that : ” the
National Judicial Council shall
have power- (b) to
recommend to the president
the removal from office of
the judicial officers specified
in sub-paragraph (a) of this
paragraph, AND TO EXERCISE
DISCIPLINARY CONTROL
OVER SUCH OFFICERS
” (emphasis added).
What this boils down to mean
is that the NJC does not have
to involve the president in its
decision to suspend or
reinstate a judicial officer,
beyond asking the president
to appoint an acting
President of the Court of
Appeal ( if the judicial officer
is the Chief Judge of the
Federal high court, the
President of the Court of
Appeals like Justice Salami
or the Chief Justice of the
Federation) and formally
notifying the President (the
appointing authority) of its
decision to reinstate for the
purpose of stopping any
further appointment in acting
capacity bearing in mind that
it is the same NJC that would
also make the
recommendation to the
President for the continuity
of the person so acting after
the expiration of the initial
period of 3o days in acting
capacity if the judicial officer
is still under suspension.
The legislature is aware that
a person not occupying the
position in substantive
capacity does so temporarily,
hence, makes such
appointment renewable every
ninety days in the hope that
the suspension of the
substantive holder will not
constitute a permanent
action. From that analysis, it
is clear that the NJC enjoys a
measure of independence
and it is at liberty to make
certain determinations
including the discipline of
judicial officers without
notifying the President for his
approval and it has done so
for several years without
executive intervention. So
what the NJC did in the case
of Justice Salami was to
communicate its decision to
the President who had
already appointed someone t
o act as the President of the
Court of Appeals and to put
the President on notice that
renewal of the appointment
of the acting President is no
longer necessary. Otherwise,
if Justice Salami had been a
judicial officer not holding
the position of the President
of the Court of Appeals, the
Chief Judge of the Federal
High Court or the Chief
Justice of the Federation, the
NJC would not have been
required to intimate the
President of its routine
disciplinary action.
What is therefore, happening
now, that the President must
approve the decision of the
NJC to reinstate a judicial
officer is not within the
contemplation of the 1999
Constitution (as amended).
Such an interpretation would
amount to a brazen violation
of the Constitution because
the President does not have
powers to do so under the
principle of memo dat quon
non habet . No one gives
what he does not have and
all acts, whether by the
executive, legislature or
judiciary must be in
accordance with the law, not
beyond their powers, to be
legitimate and validly
executed.
Unfortunately, the Presidency
through the office of the
Attorney-General of the
Federation has given various
reasons why the President
would not “approve” the
recommendation citing rule
of law, subjudice and
pending court cases
challenging the NJC’s .action
thus creating an impression
that the NJC’s power of
discipline of judicial officers
under the 1999 Constitution
(as amended) is subject to
the approval of the President.
If that position is true, where
then is the separation of
powers? With due respect,
the Attorney-General’s
position is preposterous
without any legal support.
Even assuming arguendo,
that the President processes
such powers, the pending
cases are either moot and
have become merely
academic because there is
longer an actual controversy
for the Courts to determine
by virtue of the
reinstatement action by the
NJC (if they were filed by
Justice Salami himself) or of
no consequence to the
decision by the NJC to
reinstate Salami pursuant to
the powers conferred on it by
the Constitution (if filed by
interlopers and people
without “locus standi” under
the law).
According to Femi Falana,
former President of West
African Bar Association
(WABA) while responding to
this controversy in an
interview with The Nation,
one of the country’s leading
newspapers: “If you look at
the powers of the NJC; the
NJC is empowered to
investigate judges and
exercise disciplinary control
over them. But when it
comes to removal or
dismissal, it is the appointing
authorities that can do that.
It is like the Civil Service, if
you are being investigated,
you are interdicted and once
the investigation is completed
and nothing is found against
you, that is the end of the
matter. If he had been
indicted, then the President
would have been asked to
remove him. It is the sole
responsibility of the NJC and
that is why I’m saying it has
never happened in the
history of Nigeria”.
Government must adhere to
the provisions of the law if
our claim to be a country
governed by the rule of law is
to be taken with any
modicum of sincerity and
respect by the international
community. We cannot invent
a Nigerian brand of rule of
law and clog our judiciary
with political actions and
expect the world not to laugh
at us. According to Prof.
Emmanuel Omo Esiemokhai
in his Article, “The Rule of
Law in Nigeria”, “the rule of
law is a shield against
discrimination, xenophobia
and other reactionary
minded tendencies. Due
process hinders those who
want to cut corners in order
to reap where they did not
sow” quoting from the late
justice Taylor in Olayori’s
case, (1969), 2 All.N.L.R
p.308 that ” if we are to have
our actions guided and
restrained in certain ways,
for the benefit of the society
in general and individual
members in particular, then
whatever status, whatever
position we hold, we must
succumb to the rule of law.
The alternative is anarchy
and chaos…”. That is what
will make Nigeria a decent
country (not a society of
jesters) where the rule of law
is sacrosanct. As the late
Chief Justice Sir Adetokunbo
Ademola would say, “as soon
as you accept that man is
governed by law and not by
whims of man, it is the rule
of law”.
The way forward? The
United States v. Kirby, 74
U.S. 482 (1868)[, was a case
in which the Supreme Court
of the United States held that
statutes must be construed
reasonably and
interpretations that promote
absurdity must be avoided in
order to avoid injustice and
oppression. The Justices of
the US Supreme Court held
in the case “that all laws
should receive a sensible
construction,” and that literal
interpretations which “lead to
injustice, oppression, or an
absurd consequence” should
be avoided. The Court
further held that “the
common sense of man
approves the judgment
mentioned by Puffendorf,
that the Bolognian law which
enacted, “that whoever drew
blood in the streets should be
punished with the utmost
severity,” did not extend to
the surgeon who opened the
vein of a person that fell
down in the street in a fit.
The same common sense
accepts the ruling, cited by
Plowden, that the statute of
1st Edward II, which enacts
that a prisoner who breaks
prison shall be guilty of
felony, does not extend to a
prisoner who breaks out
when the prison is on fire –
“for he is not to be hanged
because he would not stay to
be burnt.” That is an
absurdity defined and how to
resolve an absurdity in a
nutshell.
However, as I noted earlier,
there is no absurdity in the
1999 Constitution regarding
the disciplinary powers of the
NJC over judicial officers. The
NJC in accordance with the
Constitution had disciplined
Justice Salami and invoking
the same Constitutional
provision, the NJC has
decided to recall him.
Technically speaking, Justice
Salami has been recalled
having concluded that the
provision of the Constitution
giving the NJC power to
discipline a judicial officer is
not subservient to the whims
of the President and the NJC
has exercised its power of
recall. There is no absurdity
in the NJC’s decision to notify
the President, who is the
appointing authority (of the
President of the Court of
Appeal) that it has recalled
Justice Salami; the only
absurdity, as I said earlier,
being the misinterpretation of
the NJC’s action by the
political class. Once the NJC
has decided to recall a
suspended judicial officer in
exercise of its powers under
the Constitution that is the
end of the matter and no
further action is required to
effect its decision.
The powers of the NJC in this
regard have never been a
subject of controversy until
now when the political class
have seen an opportunity to
mucky the water for the NJC.
Just like Femi Falana said,
supra, “when there is a
recommendation for removal
of a judge, that is when the
President or governor comes
in because they are the
appointing authorities. But
with respect to investigation,
it is the responsibility of the
NJC to suspend and return a
Judge if no indictment. ….. I
have challenged any lawyer
in Nigeria to show the
provision of the Constitution
that empowers the President
to interfere or intervene in
the investigation of a judge.
There has not been a single
instance where the President
or the governor endorses
suspension is established”.
Falana’s position has not only
been endorsed by the
Nigerian Bar Association, the
former Chief Justice of
Nigeria, Hon. Justice Uwais,
(Rtd), also stated in a recent
interview with the Channels
TV that “ the Chief Justice of
Nigeria way back last year
(2011) appointed a
committee on Judicial
Reform. I was the chairman
and the committee
recommended the
reinstatement of Justice
Salami and that is my
position….from legal point of
view, the suspension of a
Judge, the power to do so is
given to the National Judicial
Council not the
President…..once the NJC
decides he should be
recalled, then he should be
recalled by the NJC, not the
President”.
In conclusion, the NJC must
take a principled approach
with regard to the manifold
stalemate being created by
the political class and assert
its power under the
Constitution by sending a
formal letter of reinstatement
to Justice Salami directing
him to resume his duties as
the President of the Court of
Appeals without any further
delay. This is not only the
Constitutional route and the
intendment of the legislation,
it is also just, fair and
equitable. The controversy is
not helping the image of
Nigeria and any further delay
in the implementation of its
decision or anything done to
give the coloration of
executive approval of its
disciplinary powers will
demonstrate clear and
blatant disregard for the
concept of the independence
of the judiciary and the rule
of law in Nigeria.

#CONSENSUS 2015