Refusal by the Chief Justice of Nigeria (CJN), Justice Aloma Mukthar,
to swear in Justice Ifeoma Jombo-Ofo as a justice of the Court of Appeal
to represent Abia State on the ground that she is not an indigene of
the state has drawn the ire of many. Not just that, the development has
raised fundamental issues regarding citizenship by birth or marriage.
Tobi Soniyi puts these issues in perspectives. Additional reports by
Anayo Okolie and Ayodele Opiah
Until the National Judicial Council (NJC) takes a final decision on the
refusal by the Chief Justice of Nigeria, Justice Aloma Mukthar, to
swear in Justice Ifeoma Jombo-Ofo as an Appeal Court Justice, the
controversy trailing the CJN’s action may not subside quickly. Since the
CJN’s action, the fate of Jombo-Ofo has been hanging in the balance as
she could neither function as a judge of the high court where she was
nor take her seat at the Appeal Court, despite the approval of her
appointment by President Goodluck Jonathan as a judge of the appellate
court. And until she is sworn in, her appointment is more or less null
and void while she cools off in the limbo.
As at today, the fact in public domain which has remained undisputable
is that Jonathan had endorsed the appointment of Jombo-Ofo alongside 11
others as appeal court justices. But that appointment is not valid until
she is sworn in by the CJN. Nevertheless, the embattled judge’s ordeal
began when the CJN allegedly received a petition alleging that Jombo-Ofo
was falsely representing Abia State, having hailed from Anambra but
married to a citizen of Abia State.
The perceived false representation by Jombo-Ofo was discovered after
she was screened by NJC and consequently recommended to the President
for appointment. Following investigation on the petition, her file with
the NJC was checked, which revealed that she actually hails from Anambra
and not Abia State as claimed by the learned justice.
The CJN, as a result, found herself in dire strait moreso that the
President had already approved the appointment. Besides, the trend
brought back reminiscences of the stories of two other female justices
who had claimed their husbands’ states of origin and consequently denied
promotion to the Court of Appeal.
Mukthar, therefore, came to the conclusion that Jombo-Ofo deliberately
concealed vital information and as such, should not take the judicial
oath. The CJN was said to have been irritated by the fact that the NJC
did not cross-check the claim by Jombo-Ofo bearing in mind that two
other female justices earlier recommended for appointment into the
Appeal Court bench had been dropped on the same principle. The CJN
reasoned that it was better to stop Justice Jombo-Ofo from taking the
oath of service. This decision was however aimed at entrenching equity
and fairness in the process of appointing justices and ultimately
setting standards. She is also poised to correcting some measures of
imbalance which had characterised appointments of judges in the past.
Mukhtar’ position was further strengthened by the fact that Anambra
State already had three justices of the Court of Appeal while Abia had
only one. It was, therefore, believed that to allow Jombo-Ofo’s
appointment into the appellate court would result in an unfair practice
which in the final analysis, would imply that Anambra has four justices
of the Court of Appeal while Abia has only one.
In addition, it is also assumed that such an arrangement would violate
one of the principles of Federal Character Commission Act known as the
“Guiding Principles and Formulae for the Distribution of all Cadres of
Posts,” created in pursuance to the Federal Character Commission
(Establishment, etc) Decree (1996 No 34).
Also, Part 11, Definitions, et cetera, Clause 11 provides that: “A
married woman shall continue to lay claim to her state of origin for the
purpose of implementation of the federal character formulae at the
national level.” This policy is contained in Official Gazette No 74, Vol
84.
Although, the CJN’s intention seems noble and commendable, not many
people agreed with her. Thus, a Senior Advocate of Nigeria (SAN), Mr.
Femi Falana, did not hesitate to criticise the action when he said: "In
exercise of his powers under Section 238 (2) of the 1999 Constitution,
President Jonathan recently appointed 12 High Court judges including the
Honourable Justice Ifeoma Jombo-Ofo as Justices of the Court of Appeal.
The appointment was sequel to the recommendation of the NJC presided
over by the Honourable Chief Justice of Nigeria.
"As soon as the appointment was made by the President, the former High
Court judges became Justice of the Court of Appeal in line with the
Supreme Court decision of Ogbuyiga v. Okudo (1979) 1 All NLR. Having not
been removed as a Justice of the Court of Appeal by the appointing
authority, the refusal of the Chief Honourable Justice to administer the
oath of office on the Honourable Justice Ifeoma Jumbo-Ofo cannot be
justified in law."
According to him, since the appointment of Jombo-Ofo had not been
validly set aside, she should not have been subjected to any
embarrassment on the basis of what he described as a belated petition
that sought to challenge the appointment on the ground that she was not
an indigene of Abia State.
"In other words, the petition ought to have been discountenanced as it
violates Section 42 of the Constitution which has prohibited
discrimination arising from circumstances of birth or sex," he added.
Falana cited an Appeal Court judgment of Augustine Mojekwu v. Caroline
Mojekwu (1997) 7 NWLR (PT 512) 283 where Tobi JCA (as he then was) held
inter alia:
"All human beings- male and female- are born into a free world and are
expected to participate freely, without any inhibition on grounds of
sex, and that is constitutional. Any form of societal discrimination on
grounds of sex, apart from being unconstitutional, is antithetic to a
society built on the tents of democracy which we have freely chosen as a
people."
National Chairman of Human Rights Commission, Dr. Chidi Odinkalu, said:
"In one sentence, the decision of CJN Mukhtar in this matter pertaining
to Justice Jombo-Ofo’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-Ofo’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 on 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-Ofo is also wrong in law. Having been involved institutionally in
the process of appointment, the CJN should either be rescued 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.”
The NHRC boss pointed out that "once the instrument of appointment is
executed, Justice Jombo-Ofo 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.”
Executive Director of Legal Defence and Assistance Project (LEDAP), Mr.
Chino Obiagwu, also condemned the refusal to swear in Jombo-Ofo on the
ground that she was nominated from her husband's state rather than from
her state of origin. He argued that LEDAP was concerned that the
decision was arbitrary, unfair and inconsistent with previous instances
in which a number of female justices had been appointed, promoted or
elevated on the basis of their states of marriage rather than states of
birth.
LEDAP said it was worried that such practice of denying married women
judicial appointments because of their states of marriage runs contrary
to principles of fairness adding that it would be detrimental to women’s
interest in judicial service.
"It is contrary to the entire values of marriage and of the Nigerian
society. When a woman marries, she adopts her husband's family name and
for all intents and purposes, has changed her place of origin to her new
home. At the same time, she has lost all entitlements of her place of
birth. Now to deny women in judicial services or in any sector
whatsoever benefits she is entitled to from her place of marriage is
completely unjust and discriminatory."
The group called on NJC to take steps to review such unfair practices
in the judicial sector with a view to ensuring that policies and
practices are consistent and as well, conform to standards of values of
the society.
Sadly, the controversy has again raised questions on alleged
vulnerability of women in public service. One of such questions is: Is
it unethical for a woman to choose between her place of birth and her
husband’s state as her state of origin? Another question is: What is the
place of Section 42 of the Constitution vis-a-vis the “Guiding
Principles and Formulae for the Distribution of all Cadres of Posts,”
created in pursuance of the Federal Character Commission (Establishment,
etc) Decree (1996 No 34)?
This section of the constitution provides as follows: “(1) A citizen
of Nigeria of a particular community, ethnic group, place of origin,
sex, religion or political opinion shall not, by reason only that he is
such a person:-
(a) be subjected either expressly by, or in the practical application
of any law in force in Nigeria or any executive or administrative action
of the government, to disabilities or restrictions to which citizens of
Nigeria or other communities, ethnic groups, places of origin, sex,
religion or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application
of, any law in force in Nigeria or any such executive or administrative
action, any privilege or advantage that is not accorded to citizens of
Nigeria of other communities, ethnic groups, places of origin, sex,
religion or political opinions.”
Although, disagreement abound on the appropriateness or otherwise of
the CJN’s decision not to swear in Jombo-Ofo, there is unanimity among
many that there is an urgent need to review the policy restraining
married women from attaining the peak of their careers in their
husband's state of origin.
Against this background, Justice Olufunlola Adekeye, a retired Supreme
Court judge had earlier in the month, at a valedictory session held in
her honour, set the tone for the review that is being agitated even
before the Jombo-Ofo saga emerged. She appealed to the CJN, chief judges
of the states, the Judicial Service Commission and NJC to review the
policy prohibiting married women from attaining the peak of their
careers riding on the back of their husbands’ states of origin.
Adekeye who noted that complaints of this nature were becoming
increasingly rampant within the judiciary, stated that most women
transfer their services to states of origin of their husbands
immediately after marriage which, according to her, was logical and in
compliance with the tenets of marriage that the two spouses become one.
She, however, regretted that whenever there is a vacancy at the helm of
affairs in the husband's state of origin, the woman would be denied the
right to occupy the office despite putting so many years into the
service in such a state. She further observed that the woman would also
have hurdles to cross in her own state of origin if she opted to
transfer her service to such state. The latter hurdle, she said, arises
because the woman has not worked in her own state of origin, adding that
authorities in such state would not be in a position to assess her
suitability for the office properly.
"It is my view that during the existence of her marriage, the name of
her husband must qualify and make her eligible to reach the peak of her
career in her husband's state. I think it is unconstitutional as well as
discriminatory to deprive her of her promotion in her acquired state as
a citizen of Nigeria, by virtue of Section 42 of 1999 Constitution of
the Federal Republic of Nigeria."
Also speaking on the matter, constitutional lawyer, Prof. Itse Sagay,
said: “It is not a legal thing. There is no law that says any
representative must be an indigene of where you come from. There is no
basis on which the CJN is acting. It is baseless. She is the one who
would have been leading this kind of protest to protect a lady being
deprived of her rights where she is married and working to earn the
rights of her labour.
“She should not be the one subjecting a fellow woman to this kind of
act. CJN is guilty of a great wrongdoing by championing this kind of act
instead of protecting the rights of women. There is one minister who
represents her husband’s constituency in one of the Northern states. The
CJN’s decision is baseless.”
In the same vein, human rights lawyer, Mr. Bamidele Aturu, said: “It is
indefensible and very wrong of the CJN to withhold the swearing-in of
Justice Jombo-Offo. It is in the federal character which the CJN depends
on that the judge has the right to be sworn in. Her action is
unconstitutional.”
Another legal practitioner, Emeka Ngige (SAN), believes the matter is
subjudice. He said: “Somebody has gone to court. Mrs. Falana has gone to
court to sue the CJN. With that, I don’t think I should make any
further comment on that.”
But Mukthar found an ally in Dr. Joseph Nwabike (SAN) who said the
CJN’s action was right. He condemned what he described as the political
undertone introduced into the matter by National Assembly’s resolution,
asking the CJN to swear in Jombo-Ofo.
“I don’t think that the Chief Justice of Nigeria acted improperly or
unconstitutionally by not swearing in justice Jumbo-Ofo as a justice of
the Court of Appeal. We must recognise that since the chief justice is
vested with the duty to swear her in after her confirmation by the
National Judicial Council, the chief justice still retains some measures
of discretion to exercise having regard to the facts available to her
at the time immediately preceding the swearing-in ceremony.
“This type of situation had occurred in the past. It is now open to
Justice Jombo-Ofo to satisfy the Chief Justice that she has not breached
any law in the process leading to her nomination and appointment. I
must confess that the political dimension introduced to it by the
resolution of the National Assembly and the media is unjustified. I
don’t think that the National Assembly is entitled under the
constitution to intervene in the matter since they have no role to play
in the process leading to her nomination and appointment in the first
place.”
Reacting, National Women Leader of the Action Congress of Nigeria
(ACN), Hajiya Hafsat Mohammed, said: “We are really disappointed that
Justice Ifeoma Jumbo-Ofo has not been sworn in as one of the judges of
the Appeal Court.” Mohammed noted that Jombo-Ofo who hails from Anambra
State and got married to an indigene of Abia State, had spent almost all
her life in Abia, adding that she had put the best part of her
intellectual capacity into the service of Abia State and regretted that
when she was supposed to be elevated to a higher position the issue of
indigeneship was always played up.
“So, we believe that justice has not been done and we are calling on
the Chief Justice of the federation as a woman to see reason in these
issues and swear her in because we celebrated with her when she was
appointed the CJN of federation. We believe she should also look into
women issues. That was also the reason we were at the constitution
review hearing to ensure that we amend the clause of citizenship so that
women will be given their full right. So, when a woman is married to a
person in another state, she will have 100 per cent right to claim that
state as her own state.”
However, the Convener of Nigeria Centenary Group (NCG), Mr. Ariyo-Dare
Atoye, warned Nigerians against hasty reactions to the matter. Rather,
he craved that they look into the merit of the CJN’s action and not
condemn it.
“We have to exercise serious caution and look at the merit of the
objection raised by the CJN. This issue bothers more on federal
character than merit. It is now left for us to agree if it is logical to
use one state to climb to a stage and use another to move to the next
level by reason of marriage due to vacancies in the two states.
“This is also repeating itself here and we have to look at the merit of
the CJN's concern. Nigeria should always look at issues critically
before responding. If this trend should continue, what is the
implication for quota system that we practise and also the case of
manipulation?
“I think the CJN is very right by allowing Nigerians to know more about
this 'manipulation'. If it is a general consensus that the trend should
continue, so be it, but I think we should commend the CJN for standing
on the part of truth and not gender bias. It is good that this issue has
come to the fore at a time we are debating a further amendment to the
constitution. I will urge the CJN and the NJC to make a case on this
issue and other related concerns before the National Assembly.
“We may not be lucky next time on issues like this as it may cause
serious controversy. The power that be in a state may not be on the same
page with a beneficiary, and then we may have to settle between
antecedents and the law. Therefore, we should find a way to address this
issue constitutionally especially on matters of quota system and
federal character to be very clear to all,” Atoye advised.
But the Abia State Attorney-General and Commissioner for Justice, Umeh
Kalu, said facts surrounding the decision of the CJN not to swear in
Jombo-Ofo remain sketchy. According to him, information at the state
government’s disposal on the matter has mainly been drawn from the realm
of public discourse.
Kalu also insisted that the government and people of Abia State were
yet to get the full facts leading to Jombo-Ofo’s swearing-in being
truncated, arguing that the issue of appointment and swearing in of
judges basically resides with various constitutional bodies created by
the constitution to handle such matters and therefore distanced the
state government from them.
“Correspondence and communication on appointment of judges as it
concerns states are normally handled by the chief judge who is the head
of the Judiciary in the state. The executive arm of government does not
interfere or interface with federal judicial bodies on the appointment
of judges. To that effect, if there was communication between the state
and the CJN, it would have been handled by the chief judge of the state.
“When the controversy over the status of Justice Jombo-Ofo came to the
knowledge of the Governor (Theodore Orji), he wrote confirming the fact
that Justice Jombo-Ofo is a citizen of Abia State by marriage and had
worked in Abia State as a judge for about 14 years and enjoyed all the
rights and benefits of Abia citizenship and it was a confirmatory letter
stating the above facts, made in good faith for the purpose of
protecting the interest of a citizen of Abia State in the due discharge
of his duty as Governor of the state.
“From my experience as a member of my state’s Judicial Service
Commission that handles the issue of nomination of judges for
appointment, I am aware that when vacancies are declared, it is the duty
of the chief judge to seek for recommendations from sitting judges for
persons to be appointed judges. At the close of recommendations from
judges, the chief judge shortlists persons based on the recommendations,
seeks opinions from the Bar branches and security agencies on the
shortlisted candidates and forwards those recommendations with the views
expressed on them to the Judicial Service Commission which would then
review the shortlisted persons, vote on them on the basis of facts
available to them on the suitability of those persons for purposes of
their nomination to the National Judicial Council for final
consideration and approval.
“For federal judicial appointments, like that of Court of Appeal that
is currently generating controversy, it is the chief judge that forwards
a list to the President of the Court of Appeal and it proceeds from
there to the Federal Judicial Service Commission and the National
Judicial Council. The state government, strictly speaking, in terms of
the executive, has no input whatsoever and neither is the Judicial
Service Commission of the state involved,” Kalu remarked.
Also submitting, another lawyer, Nnamdi Amasiatu, said: “Nigeria is
still sitting on the fence and this time with lots of trepidation. I
keep wondering when we shall rise collectively as a people and speak out
for justice. In this age of civil emancipation, our judiciary has shot
itself to ridicule. The noxious show of what our lordship carried out
unanimously by refusing to swear in Justice Ifeoma Jombo-ofo is colossal
slap on Nigerians.
“For how long are we going to carry on this way, sacrificing talents on
the altar of Federal Character, even to the extent of blighting one's
dignity especially a woman? We are agitating for true federalism to
empower all sectors of our national life and restore the dignity of all
Nigerians. Let the judiciary take the lead and stand on equity and
justice to expunge this ill wind by over ruling itself positively and
timorously especially when it involves our womenfolk.”
Even though it might be early to draw any conclusion on the cleansing
being carried out in the judicial sector by the CJN, a number of people
believe that she should rather be commended for her daring ability to
promote issues based on merit and not vilify her. But the Jombo-Ofo
matter as much interest and how this ends is certainly of interest to
all.
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