What happened today, the 25th January 2019 is an event that trails an indolent society that sits and wishes life happeningstands away. The opportunity to avert this kind of situation arose years back in the case when, without a particular order of culminating events regarding the role played by the NJC in the imbroglio, Justice Ayo Salami was terminally suspended from the Office of the President of the Court of Appeal under President Goodluck Jonathan. The action of Mr Goodluck was not covered by the provisions of the Constitution of Nigeria as the Constitution only provided for Appointment and Removal of judicial officers, with no provisions for suspension of a judicial officer as an Executive prerogative. That continued audacious and unchecked suspension, which persisted after the NJC had subsequently reversed itself on its disciplinary procedure on Salami, created a fertile ground for this audacity of today.
Most purveyors of Executive Sanctimony derived the powers of Mr President, to continue to suspend Salami, on the provisions of the Interpretation Act 1964. The Courts, to my knowledge, never took a position on the propriety or otherwise of that singular opportunistic event to lay it to rest. The members of the legal profession, to the best of my knowledge, did not follow that event up to the Supreme Court for a final determination. Everybody watched on.
Today, impunity has once again come full circle. Does the President of Nigeria have the power to unilaterally suspend the Chief Justice of Nigeria, or indeed any other relevant judicial officer in Nigeria?
It is not in doubt that the President of Nigeria has no Constitutional Powers to suspend the CJN. This is because the Constitution did not make provisions for the suspension of the CJN. The Constitution only provided for removal of the CJN under certain conditions. So the unconstitutionality of the suspension of the CJN is not in doubt.
Section 292(1) of Nigerian Constitution provides:
292(1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances -
(a) in the case of -
(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, the President of the National Industrial Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.
Who presents the address was not stated. What is in doubt however is whether Mr President, bereft of constitutional powers to suspend the CJN, has any statutory powers to suspend the CJN. Equally in doubt is whether such statutory powers, if in existence, is constitutional. The purveyors of radical executive powers point to Section 11 of the Interpretation Act of Nigeria as the source of the almighty presidential powers of suspension. Now, let us look at the provisions of the Interpretation Act in question.
The long title of the Interpretation Act states: An Act to provide for the construction and interpretation of Acts of the National Assembly and certain other instruments; and for purposes connected therewith.
On the Application of this Act, the Act stated: This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.
Section 318 of the Nigerian Constitution defined "enactment":
"enactment" means provision of any law or a subsidiary instrument.
Presuming but not conceding that the Interpretation Act applied to the suspension of the CJN, let us make brief voyage into the provisions of the celebrated section 11 (1) of the Interpretation Act.
Section 11 of the Interpretation Act states:
(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes−
(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;
(b) power to remove or suspend him;
(c) power, exercisable in the manner and subject to the limitations and conditions
(if any) applicable to the power to appoint−
(i) to reappoint or reinstate him;
(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
The first big question here is WHO IS CONFERRED WITH THE POWER TO APPOINT THE CJN? Is it the President, National Assembly or the NJC individually or three of them in concert? If it is the President, then he can unilaterally suspend the CJN. Whoever has the power of appointment has the power of suspension. Let us look at the appointment of the CJN as provided by the Constitution.
Section 231(1) of the Constitution stated clearly that: The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.
It is clear from the above provision that Mr President has the constitutional powers to appoint the CJN albeit under a precondition. The snag here is whether the precondition comes into play during the removal or suspension whenever Mr President wanted to employ section 11(1) of the Interpretation Act. The snag as to whether Section 11(1)(b) of the Interpretation Act is an absolute power capable of unilateral application or not, is not necessary in view of the scope of the Interpretation Act as found in the definition of "enactment" which is the subject matter of that Act.
Section 37 of the Interpretation Act stated:
(1) Without prejudice to the provisions of section 18 of this Act, in this Act the following expressions have the meanings hereby assigned to them respectively, that is to say−
"Act" means an Act of the National Assembly, whether passed before or after the commencement of this Act, and includes this Act and an instrument made before the first day of October, 1960, in so far as the instrument has effect as an Act;
"Enactment" means any provision of an Act or subsidiary instrument;
"Subsidiary instrument" means any order, rules, regulations, rules of court or bye-laws made either before or after the commencement of this Act in exercise of powers
conferred by an Act.
(2) Nothing in this Act shall be construed as purporting to prejudice the provisions of the Constitution of the Federal Republic of Nigeria 1999.
From the foregoing, it is clear that the Interpretation Act was made for the construction of enactments. Enactments according to the Interpretation Act does not include the Constitution of the Federal Republic of Nigeria. An Enactment is a product of legislation. The Constitution is not a product of legislation, rather it created organs of government including the Legislators. The Appointment in question is a constitutional appointment, not an appointment based on the provisions of any enactment. Therefore, the provisions of Section 11 of the Interpretation Act does not apply to the appointment, removal or suspension of the CJN.
Suspension of CJN is not contemplated by the Constitution and thus illegal. Suspension only applies to those offices which appointments are primarily regulated by enactments constructed with the aid of the Interpretation Act. The appointment into the office of the CJN, not being primarily regulated by enactments but the Constitution, is thus beyond the suspension powers of the President.
Awkadigwe Fredrick Ikenna
awkadigweikenna@gmail.com
08039555380
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