Jonathan and the NJC’s recommendation

Guardian

 29 August 2011

Jonathan and the NJC’s recommendation

THE action of President Goodluck Jonathan in accepting the recommendation of the National Judicial Council (NJC) to retire the President of the Court of Appeal, Justice Ayo Isa Salami, cannot be excused on any account. The simple reason is that the propriety of the recommendation has been placed before a court of competent jurisdiction. The President ought to have allowed the court to determine the propriety or otherwise of the recommendation.

In the circumstance, the President’s action contravenes constitutional necessity to protect the sanctity of the court. It also impugns on established case laws that frown against any action tending to erode the court’s authority, or undermine the judicial process. Aside of the need to sanitise the legal profession that has become much maligned due to the raging crisis in the judiciary, the wisest thing to do is for the President to reverse his decision, and allow the law to take its course in court.

If it does this, neither the President nor the country would lose anything. The crisis rocking the judiciary would remain limited to the highly controversial commissions or omissions of the NJC. At the moment, the President’s action only succeeded in aggravating a repugnant situation.

The presidency’s insistence, through the Special Adviser to the President on Media and Publicity, Dr. Reuben Abati – that the judiciary remains the final arbiter in the feud, is neither comforting nor logical. How can the judiciary be the arbiter in a matter the President has decided, along with the NJC? How can Salami’s fate lay with the judiciary, when the President has practically removed him from his office and put someone else there?

Abati had explained that the President’s action amounted to providing “soft landing” for Salami, and to avoid a vacuum at the Court of Appeal. In retrospect, President Jonathan himself created that vacuum by removing Salami while his suit challenging the NJC’s report was pending. Nigerians do not understand what soft landing the President was providing; from where, and for what?

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It is a fact that President Jonathan was unusually quick – too quick – to act on the NJC’s flawed recommendation, thus lending credence to suspicion that he had personal interest in the matter. The President showed lack of sensitivity, even to the protest of the Nigerian Bar Association (NBA) that had withdrawn its members from the NJC.

The lawyers need to play a greater role in restoring sanity and stability to the judiciary and the legal profession. The present crisis is a threat to the nation’s democracy and the presidency itself, going by the protest and threats by university teachers and students, workers under the Nigeria Labour Congress (NLC), the NBA and civil society groups.

The president’s action has further threatened the rule of law. Neither Section 238(4) nor Section 292 of the Constitution enjoins him to endorse an NJC recommendation that is both questionable and subjudice, let alone tying the hands of the Senate by appointing a judge to fill a purported vacuum.

President Jonathan should undo what he has done, restore Salami to his position and allow the courts to adjudicate in the dispute. This, in the prevailing circumstance, is the tidiest way to avoid both administrative and judicial anarchy.