Chidi Odinkalu: “What CJN Mukhtar suggests by her action is that there can be no potability of origins for the Nigerian woman”
On Monday, 5 November 2012, Chief
Justice of Nigeria (CJN), Aloma Mukhtar, was scheduled to administer
oaths of office to 12 newly appointed Justices of Nigeria’s Court of
Appeal at the premises of the Supreme Court in Abuja. All 12 had scaled
through the rigorous processes preceding appointment and had received
their letters of appointment.
To enable them fulfill the
administrative processes preceding swearing in, the newly appointed
Justices were required to arrive in Abuja the previous week. On the
afternoon of Friday, 2 November, the CJN’s Secretary telephoned one of
the newly appointed Justices, Honorable Justice Ifeoma Jombo-Ofor, to
request her to see the Chief Justice urgently.
At the Supreme Court, Justice Jombo-Ofor
proceeded to the CJN’s Chambers. Sources at the Supreme Court
authoritatively report that at the meeting, CJN Mukhtar briefly
interrogated Justice Jombo-Ofor as to her state of origin and accused
her of not being an indigene of the State she claimed before abruptly
ending the meeting.
Following her brief encounter with the
CJN, Justice Jombo-Ofor was seen leaving the premises of the Supreme
Court in severe distress. On Saturday, 3 November, the Chief Registrar
of the Supreme Court instructed her through a telephone call not to
attend or present herself for the swearing in on 5 November. All these
developments took place orally.
On Monday, 5 November, the CJN
administered the oath on 11 Justices instead of 12. Chief Justice
Mukhtar had administratively stepped down Justice Jombo-Ofor from among
the Justices to be sworn in. It emerged that Justice Jombo-Ofor was not
sworn in because, in the opinion of the CJN, she was not an “indigene”
of the State whose origins she claimed, Abia State.
In one sentence, the decision of CJN
Mukhtar in this matter pertaining to Justice Jombo-Ofor’s swearing in is
flawed in process, wrong in law and subversive of our constitutional
values of equality among citizens.
Let us begin with the process. The
administration of oath of office follows judicial appointment and does
not precede it. With respect to appointments to the Court of Appeal,
this process begins with the nomination of candidates by the respective
heads of court around the country. In Justice Jombo-Ofor’s case, the
Chief Judge of Abia State would have consented to her appointment.
Thereafter, the security services would usually prepare dossiers on the
candidates. The nominations and dossiers would be considered by the
Federal Judicial Service Commission (FJSC) chaired by the CJN. The FJSC
then reports to the National Judicial Council (NJC), also chaired by the
CJN, which decides on which candidates to recommend to the appointing
authority, the President.
Based on the nominations received from
the NJC, the President then exercises the power under Section 238(2) of
the Constitution to formally execute the instruments of appointment and
to issue and transmit letters of appointment to the successful
candidates.
This process is long and arduous and
involves all the branches and levels of our government in the most
intricate advertisement of constitutional checks and balances possible.
No one can scale through to appointment if the CJN objects at either the
FJSC or the NJC. But because of this process also, she cannot be heard
to object at the stage of swearing in because to do so at that stage
would impugn the integrity of the judicial appointment process, call her
own decision making into question, and possibly render her position
untenable.
This is why the decision to refuse to
administer the oath on Justice Jombo-Ofor is also wrong in law. Having
been involved institutionally in the process of appointment, the CJN
should either be recused from any post-appointment objections or,
alternatively, estopped from doing so. In any case, at this point in the
process, the CJN is devoid of the legal power to countermand the
appointing authority.
Once the instrument of appointment is
executed, Justice Jombo-Ofor can only cease to be a Justice of the Court
of Appeal if she is removed through an established judicial
disciplinary process, impeached as provided in the Constitution or her
elevation is nullified by a court of competent jurisdiction. None of
these happened here. Surely, a matter as serious as this cannot be
handled orally or by a sequence of cellular telephone calls.
The flaws in process and want of
legality reinforce the twin damage that this entire episode does to our
constitutional values. First, it denies women, especially married women,
equality of opportunity contrary to our constitution. Ifeoma
Jombo-Ofor, a 58-year old married grandmother was born in the former
Eastern Region of Nigeria in 1954. By the time she got married 33 years
ago in 1979, her parental origins had become Anambra State but her
husband was from Imo. In 1981, she was appointed a Magistrate in Anambra
State. In 1991, when Abia State was created, her husband’s state became
Abia. In 1998, the Abia State Government appointed Ifeoma Jombo-Ofor a
Judge of the High Court of Abia State. She has served in this capacity
since then.
In any serious clime, this story of her
exclusion from judicial oath of office would be laughable. The process
was ham-handed to say the least and it is surely tragic that we have got
to a point where the defining issue in judicial appointments is not
whether the candidate is up to the difficult job of being a judge but
where they come from.
What CJN Mukhtar suggests by her action
is that there can be no potability of origins for the Nigerian woman.
Yet in 1985, the Supreme Court had decided in Olowu v. Olowu [1985]
12 S.C. 84, that there is in fact such potability. For married women,
this is important. Every married woman belongs to the place where she is
born and also to the place into which she is married. This dual
identity is not opportunistic. Instead of affirming this fact, the CJN
took an administrative decision whose immediate impact is to diminish
public service opportunities open to married women in Nigeria by
rendering them effectively stateless. For this, Nigerians are entitled
to take her to task.
Ironically, 20 years ago, the same NJC’s
predecessor, the Advisory Judicial Committee (AJC), rejected the
appointment of a female judge from then Cross River State because she
was an unmarried mother. So as a woman, you lose professional
preferment, whether married or unmarried.
Secondly, the “rules of origin” in the
judiciary require urgent attention. Three years ago a judge of the Lagos
High Court, Bunmi Oyewole, was refused elevation to the Court of Appeal
because his origin is Osun State. In October 2012, the NJC reportedly
declined to support his nomination as Chief Judge of Osun State because
he is a judge of the Lagos State High Court. Mere mortals may struggle
to make sense of this.
The treatment of Justice Jombo-Ofor is
disgraceful and beneath the dignity of the judicial branch. On 7
November, the Senate resolved, in an unprecedented step, to condemn the
decision of the Chief Justice and request her to swear in Justice
Jombo-Ofor. She should comply. She should also review and clarify the
criteria for federal judicial appointments. This mess of origins must be
cleaned up.
Odinkalu chairs the Council of the National Human Rights Commission
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