The Cross-River State Governor, His Excellency, (Prof) Ben Ayade, has been mired in so many controversies lately, from the harassment of journalists, to the incarceration of activists, his apparent inability to tackle communal clashes and even the manipulation and intimidation of the other arms of government – the legislature and the judiciary. He had a very promising career as a politician, at the onset, given the very tender age at which he ventured into partisan politics. But that was not to be, as everything that should work in favour of the governor has been working against him, from the hiring of multiple aides, to the present-day crisis in the judiciary of Cross-River State, to the extent that some now refer to His Excellency and one other governor, as the reason why youths should not be entrusted with power in the present dispensation.
On March 3, 2020, Governor Ayade turned the beautiful face of the judiciary in Nigeria upside down when he proceeded to swear in Honourable Justice Maurice Eneji, as the Acting Chief Judge of Cross-River State, to displace Honourable Justice Akon Ikpeme, whose tenure expired in acting capacity on March 2, 2020. It was an executive act that blew dust on the face of the judiciary directly, ranking as it were, as the greatest act of impunity so far displayed against the most sacred institution of governance. Now, what is the case in Cross-River State? It is that Ikpeme J, is the most senior judge in the Cross-River State judiciary, but she is a lady and she is from Akwa Ibom State by origin, married to a citizen of Cross-River State. Eneji J, is next to her in the rank of seniority and he is a man, from Cross-River State, by origin.
Governor Ayade had forwarded the names of Ikpeme J and Eneji J, to the National Judicial Council for consideration for appointment as the substantive Chief Judge of the State, with Ikpeme J, as the preferred candidate and Eneji J, as the reserved candidate, ostensibly based on seniority. The NJC in December 2019, interviewed both candidates, whereupon it found them worthy and thereafter recommended Ikpeme J, as the substantive Chief Judge, being the most senior judicial officer and she had no negative report whatsoever. Then commenced the various schemes and spins, targeted mainly at denying Ikpeme J, of the substantive position, purely on the grounds of gender and origin. It was then suddenly realized that she is from Akwa-Ibom State, allegedly putting her loyalty to Cross-River State in doubt.
Ikpeme J, started her glorious career in Calabar and later got married to a Cross-Riverian. At the creation of Akwa-Ibom State, members of staff of the judicial arm were given the option to move to the new (Akwa-Ibom) State or remain in the old (Cross-River) State. Ikpeme J, continued to discharge her duties as a judge in Cross-River State, handled several cases and delivered judgments thereon, without any dent on her judicial career, till she rose to become the most senior judge in the State. The former Chief Judge therefore had no difficulty in recommending her for appointment as the Chief Judge. Then the executive arm of government under Governor Ayade began to put obstacles on her way, first with the composition of the State Judicial Service Commission and thereafter the manipulation of the Cross-River State House of Assembly. On March 2, 2020, the CRSHA had a stormy and rowdy session, in the course of debating the approval of the substantive chief judge. Through a voice vote, they claimed to have rejected Ikpeme J’s candidature due mainly to ethnicity. It was the first time in the history of Cross-River State that the most senior judge would be denied appointment as the substantive Chief Judge.
Now, section 271 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), provides that ‘the appointment of a person to the office of the Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State’. The proper interpretation of this section implies that some processes would be initiated, but surely the most fundamental of them all is that the appointment of the chief judge is the responsibility of the governor. That process is commenced through the State Judicial Service Commission, which will interview and recommend candidates to the governor for appointment and the governor will in turn send the name of his nominee to the National Judicial Council, for consideration and recommendation. If he sends two names to the NJC and both are recommended as suitable as was done in this case, the governor has to take a decision first before activating the process of the approval of the CRSHA.
The case of Ikpeme J, has once more brought to light the inadequacies of the 1999 Constitution, which many are taking advantage of to perpetrate lawlessness and impunity. The legislative houses of the States are all under the control and manipulation of the governors, such that no meaningful debate or legislative activities go on in those hallowed chambers, except in a few States. By law, it is not yet time for Ikpeme J, to retire from the judicial service of Akwa Ibom State and by swearing in Eneji J, her junior, as the Acting Chief Judge, it means that Ikpeme J, will now take directives from and be under the authority of Eneji J. Seniority is one of the most cherished traditions of the legal profession, both at the Bar and on the Bench. And this is why section 271 (4) of the Constitution was enacted to uphold this age-long tradition, by stating 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.’ (Emphasis supplied).
From the clear provisions of section 271(4) above, it cannot be in doubt that the intendment of the drafters of the Constitution is to allow THE MOST SENIOR judge of the State to be the occupant of the office of the chief judge. Even in other establishments outside the judiciary such as the military, whenever it is the desire of the President to appoint a junior officer to the highest position, all his seniors and contemporaries have to be retired compulsorily, as it will be absurd to retain them in service. Neither Governor Ayade nor his cronies in the CRSHA have initiated any move in compliance with section 292 (1) of the Constitution, to remove Ikpeme J, in any manner known to law, meaning that she will continue to function in office as the most senior judicial officer in Cross-River State until she retires, notwithstanding that a junior judicial officer has been imposed on her. That is the anomaly that Governor Ayade has created in Cross-River, which should not be allowed to stand.
Part of the tenuous reasons given by Governor Ayade’s men in the CRSHA is that by reason of her Akwa-Ibom origin, Ikpeme J, posed a security threat to Cross-River State. In the course of her screening by the NJC, Ikpeme J, was also screened by the Department of State Security and was duly cleared as having no security issues that could rob her of her due appointment as the substantive chief judge. Pray, between the time of her clearance by the DSS and the contrived plenary session of the CRSHA, what security breach did Ikpeme J, commit to justify the banal security tag on her, without any shred of evidence whatsoever? How can CRSHA members constitute themselves into security officers to be able to determine that a judge who was born and bred in Cross-River, who schooled in Cross-River, who married in Cross-River and who has worked all her life in Cross-River and had no security issues all these years, will suddenly turn out to be a security risk, simply because she was recommended to occupy the office of chief judge?
Section 42 (1) of the Constitution is clear that no citizen of Nigeria should be denied any opportunity available to other citizens simply on the grounds of ethnicity, PLACE OF ORIGIN, sex, religion or political opinion, in the application of any law in force or any such executive or administrative action. Members of the CRSHA all swore to uphold this provision of the Constitution on the day of their inauguration and Governor Ayade also swore to uphold the same Constitution on the day of his swearing in. Nothing in our laws can justify this callous deprivation being meted out on Ikpeme J, and men and women of conscience should rise up against it by demanding the confirmation of her appointment as the chief judge of Cross-River State. There should be no place for this stone-age discrimination in the Nigeria of our dreams and people who practice this sort of bigotry should be isolated from the assembly of women and men of good conscience. Governor Ayade has no justification whatsoever, for imposing Eneji J, on his superior, just as the CRSHA cannot reasonably defend its refusal to confirm Ikpeme J, as the chief judge of Cross-River State. I join other well-meaning Nigerians to urge Governor Ayade to do the needful by re-instating Ikpeme J, as the Chief Judge of Cross-River State, and to cease from ruling as an emperor, in a constitutional democracy.
Ebun-Olu Adegboruwa is a Senior Advocate of Nigeria and writes from Lagos.
NOTE: Opinions expressed in this article are strictly attributable to the author, Ebun-Olu Adegboruwa, SAN and do not represent the opinion of CrossRiverWatch or any other organization the author works for/with.