Editor's note: "I am a layman as far as legal matters are concerned but I have a good command of the English language our Constitution is written in", claims Ini A. Morgan, a Legit.ng guest author, commenting on the recent inauguration ceremony of Rivers state governor, Ezebuwon Nyesom Wike. Is the Nigerian Constitution so easy to find a loophole in it?
May 29, 2015. The main bowl of the Liberation Stadium, Port Harcourt. Her Lordship, Justice Kate Abiri, the chief judge of Bayelsa state, administered the oaths of office and allegiance on His Excellency, Bar Ezebuwon Nyesom Wike, the executive governor of Rivers state. Some pundits believed the ceremony might not have been held due to the peculiarities of the Nigerian Constitution as it could have allegedly caused the constitutional crisis in the state. Therefore, in order to prove the ceremony was legal, Justice Abiri made a clarification in front of the mammoth crowd that had invaded the stadium to witness the historic occasion.
She quoted Section 158 Subsection 1 of the Constitution that read: “in exercising its power to make appointments or to exercise disciplinary control over persons, the…National Judicial Council…shall not be subject to the direction or control of any other authority or person”. [sic]
Justice Abiri claimed that her assignment in Rivers state was made by the chief justice of the federation, and proceeded to administer the oaths of office and allegiance on Bar Wike.
Justice Kate Abiri, chief judge of Bayelsa state during the
inauguration of the Rivers state governor
I hereby recall my article that suggested the ways of avoiding another case of ex-president Goodluck Jonathan’s impunity through the well-publicized assignment of Bayelsa state chief judge by the attorney general of the federation, Mohammed Adoke.
In the face of exploiting the lacunas in the Constitution, the article asks: “Why then have our legislators taken all the allowances they have pocketed for 16 years?” It is surprising to see how many loopholes there are in our laws that smart legal brains can exploit to vacate a legal provision. As a concerned Nigerian, I think this is not in the interest of national development and ordinary Nigerians. So the article suggests that “…it is the responsibility of Nigerians to ask members of the National and States Assemblies to leave every other thing they have been doing and go through our Constitution page by page and Section by Section, and deal with the military mindset in our laws”.
It is indeed a shame that the Constitution is not straightforward and to the point. I wonder how our law professionals have been comfortable with using it without complaints, unless it generates pecuniary benefits to them. If I feel this worried with what I read in our constitution, I think all legal professionals are not fair to Nigerians showing to be less concerned about the way our constitution is framed. This is another cry and I, Ini Akpan Morgan, on behalf of all downtrodden, abused and deprived Nigerians hereby herald another cry for change! The Nigerian Constitution must be made straightforward, clear and to the point.
Section 185 Subsection 2 of the Constitution states: “The oath of allegiance and the oath of office shall be administered by the Chief Judge of the State…or the person for the time being…appointed to exercise the functions…in any State”. [sic]
The key phrase in the above Subsection is “appointed to exercise”. The question arises: who is empowered to appoint “the person for the time being…to exercise the functions” as it relates to a federating state?
Section 271 Subsection 4 states that “if the office of the Chief Judge of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the governor of the state shall appoint the most senior Judge of the High Court to perform those functions”. [sic]
Section 271 Subsection 5 reads that “except on the recommendation of the National Judicial Council, an appointment pursuant to subsection 4 of this constitution shall cease to have effect after the expiration of three months from the date of such appointment and the Governor shall not re-appoint a person whose appointment has lapsed”. [sic]
Section 271 Subsection 5 empowers a governor to exercise his prerogative according to Section 271 Subsection 4 for the first three months without recourse to the National Judicial Council. Section 271 Subsection 4 rests the determination of the “most senior Judge of the High Court” to the state governor. The hindrance of Justice Peter Agumagu from assuming his appointment as an interim chief judge and his subsequent suspension was illegal as long as Justice Peter Agumagu did not assume office as an acting chief judge of Rivers state after being appointed.
Section 160 Subsection 1 dealing with the power and procedures of the National Judicial Commission (NJC) states: “Subject to subsection 2 of this section, the (NJC)…may with the approval of the President, by rules or otherwise regulate its own procedure or…impose duties...on any officer or authority for the purpose of discharging its function”. [sic] This was the power the NJC exercised when it appointed Justice Daisy Okocha administrative judge of Rivers state.
Nevertheless, the powers conferred upon the NJC in regards to the above-mentioned section are subject to Section 160 Subsection 2 stating that “in the exercise of any powers under subsection 1 of the section…(the NJC) shall not …impose duties on any officer of a state …except with the approval of the governor of the state". [sic] Thus, the NJC cannot impose the duties of administering the oaths of office and allegiance on a judge in any state without the approval of the state governor.
It should also be clear to all that Part 1 of Chapter 6 of the Constitution, from which the chief judge of Bayelsa state drew the power of the chief justice of federation, deals with matters that affect only federal executives. As for Part 2 of Chapter 6, it deals with matters that affect only state executives.
I am a layman as far as legal matters are concerned but I have a good command of the English language our Constitution is written in. My point here is not to draw people’s attention to the swearing-in of the executive governor of Rivers state. I am here to question the morality of our legislators in allowing such exploitation of our laws, and their integrity in the benefits they derive from using lacunas in the laws to water down their effects, period!
Ini A. Morgan is a Port Harcourt-based architect, writer and public affairs analyst. He is married with children.
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