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SHOWDOWN OVER SALAMI

By NBF News
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The Nigerian Bar Association (NBA), yesterday threatened showdown with the Federal Government over the removal of the President of the Court of Appeal (PCA), Justice Ayo Salami and replacing him with Justice Dalhatu Adamu. The lawyers are not happy with President Goodluck Jonathan for approving the recommendation of the National Judicial Council (NJC), a few hours after advising the Presidency to be cautious.

The NBAis having its Annual General Meeting (AGM) in Port Harcourt, Rivers State, where Attorney General of the Federation (AGF), and Minister of Justice, Mohammed Adoke (SAN) was said to have been booed even as protest, condemnation, and a law suit are trailing Justice Salami's removal yesterday.

The NJC gave him one week from August 9, 2011 to apologise to the Chief Justice of Nigeria (CJN), Justice Aloysius Katsina-Alu and the NJC over alleged perjury by the erstwhile PCA, NJC, over his comments on the Sokoto State governorship election petition. Justice Salami said the CJN had allegedly asked him to disband the tribunal.

An NJC Panel investigated the allegation and allegedly cleared the CJN. Justice Salami did not apologise. Rather, he went to Court to enforce his fundamental rights.

At the expiration of the deadline on August 16, 2011, the NJC suspended him and even recommended the erstwhile PCA for retirement last Thursday.

The Presidency, on Sunday retired Justice Salami.
NBA, yesterday protested President Goodluck Jonathan's appointment of an Acting PCA despite its advice to the contrary, describing the move as another wrong step by the President.

The NBA had at its National Executive Committee (NEC) meeting held Sunday in Port Harcourt, urged the President to, 'decline to proceed further with the matter and to advise the National Judicial Council (NJC) to revert to status quo ante' in respect of the raging tussle between the CJN and PCA for which the latter has filed a lawsuit.

Speaking at the opening session of the AGM of the NBA in Port Harcourt, Rivers State, its President. Mr. Joseph Daudu (SAN), frowned at the appointment of Justice Adamu, 'two hours after our resolutions were made public.'

Daudu said the President's action smirked of another disregard for due process and the rule of law on his part.

'Whether the decision to appoint and subsequent announcement was coincidental is not important here. What is significant is that once again, the President has lost a clear opportunity to range himself on the side of due process and the rule of law.'

Mr. Daudu said that rather than be discouraged, the development would further spur the association in its pursuit for good governance.

'As stated earlier, these measures only reinforce our resolve not to be cowed or overwhelmed. We shall continue to pursue the rights of Nigerians as we have described purposefully and proactively. The last has definitely not been heard on the rule of law and due process aspect of this matter,' he said.

Also, the NBA President faulted the poor funding of the judiciary particularly the practice of occasional donation of cars, library books and court rooms 'purchased with State funds' by governments.

Insisting on the people's right to a fearless and independent judiciary, he assured that the association would spare no effort to shore up the lot of the Judiciary.

Meanwhile, minority parties in the House of Representatives yesterday condemned Justice Ayo Salami's removal, saying that the action violated the Constitution.

The parties have threatened to boycott sittings when the House resumes plenary, unless the decision was reversed.

Justice Katsina-Alu, yesterday sworn in Justice Adamu. For accepting the recommendations to replace Justice Salami, the caucus noted that President Jonathan's action in appointing a new PCA was incurably defective.

In a statement issued yesterday, the caucus said while it had maintained 'a stoic silence' over the war of attrition between the NJC and CJN on one hand and Justice Ayo Salami on the other, the parliament can no longer fold its arms on the matter.

The statement, signed by the Minority Leader, Femi Gbajabiamila and four other principal officers, disclosed that the House decided to distance itself from the crisis in the judiciary in keeping with the tenets of separation of powers, believing that the judiciary will put its house in order within the ambits of the law and the constitution but was disappointed at the turn of events.

Others who endorsed the statement are the Minority Whip, Samson Osagie, Deputy Minority Leader, Ismaila Kawu, Deputy Minority Whip, Garba Datti and Leader of the Labour Party in the House, Hon Akinlaja.

'Should Mr President fail to withdraw or rescind his action, we in the opposition will totally boycott the sittings of the House. The consequence of this is the likelihood that the House will not be able to conduct any business as provided in Section 54(3) of the Constitution and any such business conducted in violation of that provision will be declared null and void. We will also be urging all lawyers to boycott the sittings of the Appeal Court.

'This has the potential of a government shutdown. This must be avoided.

'It is time to invoke Section 88 of the Constitution and the spirit guiding that document. Indeed, the provisions of the Constitution for checks and balances and power of oversight as contained in Section 88 and Section4(2) have been triggered by the unfortunate suspension of Justice Salami by the NJC and his consequent removal from office by Mr President for the following reasons.

'In the first place, it was against practice, procedure and legal tradition for the NJC to have purported to have suspended the President of the Court of Appeal after it had reluctantly accepted and acknowledged service of court process on the matter. It was even more egregious for Mr President to have acted on an illegality even when he or his Attorney-General knew or had constructive knowledge of the pending court action. Such is an affront to the rule of law and a brazen attempt to present the court with a fait accompli and destroy the rest.'

The caucus argued that President Goodluck Jonathan erred when he acted on the recommendations of the NJC and removed Salami from office without taking into cognisnace the stipulations of the Constitution. Section 157 of the Constitution stipulates that a member of the NJC can only be removed by the President if such a removal is recommended by a resolution of two-thirds

Former Vice President, Atiku Abubakar called for strick observance of the 1999 Constitution in resolving the crisis of confidence in the top echelon of the judiciary.

Atiku, who made the call yesterday in Abuja, said that the judiciary as the last hope of the common man, should not be jeopardized.

In a statement by his Media Office, Atiku said he has watched with concern the unfolding and embarrassing drama, which is capable of undermining the integrity of the nation's judiciary.

Atiku stressed that the path of constitutionality must be followed in resolving the crisis for the interest of rule of law and democracy.

'It is imperative that we apply to the letter what the constitution provides for in respect of issues like this,' he said.

He condemned the mismanagement of the working relationship between Justice Katsina-Alu and Justice Salami, which is now causing the country avoidable discomfort.

'It is in the best interest of our nascent democracy that I wish to appeal to the National Judicial Council (NJC), the Nigerian Bar Association (NBA), and the Presidency to tread with caution in resolving the issue at stake as doing otherwise may endanger our fragile democracy,' Atiku said.

He urged all stakeholders to adopt an impartial disposition in the resolution of the conflict, bearing in mind that undue extremism has the potential of violating the sanctity of the judiciary.

He implored the media to exercise restraint to avoid compounding an already bad situation.

'The sensationalization of this issue is not in any way beneficial to democracy and rule of law, which the Fourth Estate of the realm is working to entrench.

'All well-meaning Nigerians should work towards ensuring that strict observance with the constitution prevails at the end of the day as we cannot afford a rancorous judicial system,' Atiku said.

A group, The Lawyers of Conscience has condemned Justice Salami's removal saying it is unacceptable subterfuge, coup de tat and invitation to anarchy.

It also said that the action of the NJC is anarchical and spurious.

In a statement issued in Abuja, and signed by its National Coordinators, Benedict Ezeagu and Sadiq Mohammed, the group also frowned at Jonathan's endorsement of such judicial rascality and brigandage.

It noted that the action of the NJC members was a rape of the rule of law and a threat to national security.

'This is indeed an abuse of power. It is very curious, sad and quite unfortunate that a highly placed body that should ordinarily promote and protect the Rule of Law and the integrity of courts and the judiciary in Nigeria, has been turned into a political and lawless body that makes mockery of whatever modicum of regard and integrity that are left of our judiciary, which has been in shambles all these while.

'Or how best can it be explained that these members of the NJC that had notice of an action pending against the body in the Court, would now go against the well established principle of Law (lis pendens)?

'The actions of these members of NJC are contemptuous and run contrary to the clearly defined powers of the body in the Third Schedule, Part 1,section 21(b) and section 292(1) of the Constitution of the Federal Republic of Nigeria,1999(As Amended),' Lawyers of Conscience said.

Noting that NJC does not have the power to suspend the PCA, the group said NJC can only recommend to the President, the removal from office of the President of the Court of Appeal and the President can only remove the President of the Court of Appeal from his office before his age of retirement after such recommendation on an address supported by two-third majority of the Senate.

'Consequent upon the unconstitutional and lawless nature of the actions of these NJC members, therefore, we urge Justice Salami, to discountenance the so-called suspension and continue to discharge his official duties as the President of the Court of Appeal.

Activist lawyer and convener of the Coalition of Democrats for Electoral Reform (CODER), Mr. Ayo Opadokun, has said Justice Salami's replacement is a ploy to deny the Congress for Progressive change (CPC) fair hearing in its petition against him before the Court of Appeal under Salami.

Opadokun, who was the Secretary o the defunct National Democratic Coalition (NADECO), told journalists in Lagos yesterday that  Jonathan's haste in naming Salami's successor was 'an indication that he is afraid of him,' stating that 'the CPC can now make a categorical statement that it is not likely enjoy a fair hearing in its case against the election of Jonathan as President last April.'

Opadokun, a former Afenifere Secretary, said that 'as a government that mouths a mantra of due process and rule of law, Jonathan should have waited until the entire gamut of the legal matter is completed before taking any step.

According to him, Jonathan has exhibited fears for Salami and suspected that 'the step was hurriedly taken to supplant Salami and send him away from the Judiciary,' vowing that 'this evil will not stand as we are going to challenge it legally.'

The activist cum politician, who said Jonathan did what he did to ridicule the judiciary, assured that 'the evil machination plotted by the Nigerian Judicial Council (NJC), would be frustrated, lamenting that 'these characters do not mean well for Nigeria.'

Meanwhile, some lawyers yesterday criticized Jonathan's endorsement of the recommendation of the NJC, retiring Justice Salami.

President Jonathan had on Sunday approved the appointment of Justice Adamu as the acting President of the Court of Appeal.

Condemning the President's decision, a Lagos-based lawyer, Mr. Ebun Adegboruwa, called for the resignation of the Attorney General of the Federation, Mohammed Adoke (SAN), said the action of Jonathan had showed the level of incompetence of the Attorney-General of the Federation and Minister of Justice, Mohammed Adoke.

Calling on the Attorney-General to resign his appointment, Adegboruwa said: 'I believe that the action of NJC in recommending the suspension of Justice Salami while the case is in court amount to contempt of court and disregard of the judiciary.

'The Attorney General should have advised the president not to endorse the recommendation. He should resign,' he declared.

Also reacting, a constitutional lawyer, Olorogun Benson Ndakara, said that the ratification by President Jonathan was too hasty, saying he should have carried out an internal investigation into the entire saga, to know whether Justice Salami was given a fair hearing, more so when he had gone to court.

'To me, Justice Salami has not received fair hearing,' adding that 'it would be

fait accompli because the NJC has played into the net of the Peoples Democratic Party (PDP) since the party had not been happy with the Appeal Court decisions over some gubernatorial elections, especially in Osun and Ekiti States.'

Also condemning the decision, another counsel, Mr. Toyin Keshinro said: It is very wrong to endorse the recommendation of a committee that had no power to recommend suspension. How can you ratify what is illegal? He asked.

Describing the exercise as judicial lawlessness, Keshinro, also argued that Jonathan ought to have asked for the approval of the senate before ruling any decision on the matter.

Reacting to the removal yesterday, The Action Congress of Nigeria (ACN) accused President Jonathan of violating his oath of office by appointing the PCA even when 'there is no vacancy in the office' and the whole process failed to meet constitutional stipulations.

In a statement issued in Lagos yesterday by its National Publicity Secretary, Alhaji Lai Mohammed, the party said the President's action, which is clearly subjudice, amounts to a repudiation of the oath he took to protect the Constitution and uphold the rule of law.

It said the action also confirms the rumour that the President may have been secretly pushing for the removal of Justice Salami, through some hawks in the NJC, over fears that the petition by the CPC presidential candidate, Muhammadu Buhari – which is being handled by the Court of Appeal - may go against him (Jonathan).

The ACN said, apparently the last straw for President Jonathan was the strong stance of the NBA, which asked him to ignore NJC's recommendation on the retirement of Justice Salami.

'Indications are that the unequivocal action of the NBA jolted the President to act quickly to effect Justice Salami's removal, in line with the prepared

Script,'' it said.
The party said President Jonathan exhibited executive recklessness when he acted on an issue that is pending before the court and also relied on a section of the Constitution that deals with appointment, rather than removal, to get rid of Justice Salami.

'Section 238 which the President relied on to remove Justice Salami and appoint an Acting President of the Court of Appeal deals with the appointment of President and Justices of the Court of Appeal if the office is vacant.

''Section 292 deals with the removal of top judicial officers, including the President of the Court of Appeal. In accordance with this section, the President can only remove any of the listed officers, acting on an address supported by two-thirds majority of the Senate. In other words, it is not even the President, but the Senate, that can initiate the process upon the recommendation of the NJC.

'By rushing to remove Justice Salami on the strength of Section 238, the President has committed the same faux pas as the NJC clique and violated the Constitution of the Federal Republic of Nigeria. He has filled a post in which no vacancy exists, and allowed himself to be guided by political expediency, rather than the provisions of the Constitution,'' it said.

ACN said the crisis precipitated by the face off between Justice Salami and the Chief Justice of Nigeria provide-the best opportunity yet for President Jonathan to show his strength of character and leadership qualities. On both counts, the President fell short.

'President Jonathan's not-well-thought-out action will have a far reaching effect on the judiciary and the entire country, and will largely define his presidency. He may not have thought about this before he rushed into action,'' the party said.