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SALAMI'S REMOVAL: PROSPECT OF CONSTITUTIONAL CRISIS LOOMS

By NBF News
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Although 'transparency, accountability and the rule of law' have been the most often repeated words among politicians and public administrators since the country resumed presidential democracy in 1999, not much attention has been paid to ways and means of proactively manifesting those values through timely references to the appropriate constitutional clauses, as guides to correct political behavior in the country.

Consequently, the National Assembly and executive arms of government have been embroiled in all sorts of conflicts. These were mainly noticeable between 2003 and 2007 and up till May 2010, when 'the Doctrine of Necessity ' principle was applied by the Senate in safe -guarding political stability for the country, culminating in the appointment of erstwhile Acting President Goodluck Ebele Jonathan as substantive President and later as legitimate successor to the late President Umaru Yar' Adua.

The attendant confrontations within the National Assembly often ended up in impeachments and tension in the relationships between the executive and legislative arms of government at the centre.

However, since July this year when the National Judicial Council (NJC) indicted the erstwhile President of the Court of Appeal, Justice Ayo Salami, for perjury and exonerated the Chief Justice of Nigeria, Justice Aloysius Katsina -Alu, of allegations by Justice Salami that the CJN had 'instructed' him to manipulate the course of justice in the Sokoto State governorship appeal, these actions of the judiciary's leaders have provided editorial materials for the mass media and served as subjects of controversy among members of the public and international observers.

With the news in yesterday's (Monday, August 22) print and electronic media that President Jonathan had approved the recommendation of the NJC to retire Hon. Justice Salami and approval of the appointment of Hon. Justice Dalhatu Adamu as Acting PCA and protests by the Nigerian Bar Association (NBA) over these developments, prospects both of a major constitutional crisis and mediation opportunities appear to have surfaced.

In recommending the compulsory retirement (rather than a potentially less contentious suspension) of the Court of Appeal President, the Presidency relied on the constitutional provisions of section 292(i) (a) (i) of the 1999 Constitution.

President Goodluck Jonathan, in exercising ' the powers conferred on him by section 238 (4) of the Constitution…… has approved the acting appointment of Hon. Justice Dalhatu Adamu to perform the functions of the office of the President of the Court of Appeal pending when all issues relating to the office of the President of the Court of Appeal are resolved,' according to a statement by the Special Adviser to the President on Media and Publicity, Dr. Reuben Abati, published yesterday (Monday).

It is noteworthy, however, that while announcing these decisions, there was no indication that judicious attention was paid to the requirement embedded in section 292, that such a judicial officer as the PCA may only be 'removed from his office or appointment before his age of retirement…….. by the President acting on an address supported by two-thirds majority of the Senate who are still on recess.

Furthermore, section 238 (1) on the appointment of a PCA, stipulates that such an appointment 'shall be made by the President on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the Senate.'

And although section 238(4) empowers the President to 'appoint the most senior justice of the Court of Appeal to perform….. functions of the President of the Court of Appeal if the office is vacant or ' if the person holding the office is for any reason unable to perform the functions of the office….,' there was no indication whatsoever that Justice Salami's experiences under the current situation fall under the constitutional categories for replacement, temporary or permanent.

Another pertinent clause of the constitution which appears to have been ignored or forgotten before the statement published yesterday was issued, is section 290(1) of that document, which says: 'A person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this constitution….'

Even if Hon. Justice Adamu had earlier declared his assets, this obligation to up-date that exercise before beginning his official work was not mentioned in the statement, and that raises some questions on the official scrupulousness regarding the rule of law on this imbroglio between the two legal and judicial personalities.

In addition, observers have contended that the previously well-publicized management and financial controversies surrounding the NJC which involved billions of Naira, ought to have been investigated by the Economic and Financial Crimes Commission(EFCC) ,instead of being handled otherwise, and that the involvement of the NJC in the 'trial' and purported retirement of Justice Salami, amounted to a situation in which some of the Justices were judges in a case involving them personally and officially.

Observers have also commented adversely on the Chief Justice's earlier move in resorting to 'bench - crossing', by unusually taking over the work of the PCA and halting its adjudication of the Sokoto gubernatorial appeal hearings. The action was based on extra-legal claims that the predicted outcome of the case may not be palatable to the powers-that-be, and consequently halted the proceedings.

It has therefore, been suggested that for peace to be restored to the judiciary, well- respected retired Justices of the Supreme Court, including surviving Chief Justices and Attorneys-General of the Federation, as well as international well- wishers, should be approached by the Presidency and the country's patriotic legal and other well-meaning personalities, to serve as mediators in this festering dispute, in the national interest.