Beyond the agitation and support for the move against Ayo Salami, suspended president of the Court of Appeal, are the stack realities of a judiciary struggling with credibility, even in the face of official meddlesomeness
Last Monday, there was an unusual occurrence at the judicial arm of the Three Arms Zone in Abuja, capital of Nigeria. An intimidating presence of a detachment of police manned the three locations connected with the swearing in of Dalhatu Adamu, a justice of the court of appeal, as the acting president of the court of appeal – the Supreme Court, the court of appeal and the residence of Ayo Salami, the suspended president of the appellate court. It was like a coup d’état. And to underscore the controversy surrounding the change of guard, the presence of police in the house of Justice Salami, who is fighting his suspension in court, gave the impression that the man who Adamu is succeeding was placed on house arrest. Apart from that, if anyone were to have nurtured the idea of serving a court paper at the venue of the swearing-in he would not only have been unable to serve same, it would have been impossible for such a person to penetrate the security network there.
Since the announcement of a substitute for Salami was done on Sunday, the only opportunity that would have been for any aggrieved person to go to court over it would be that Monday. As it were there was no attempt at stopping the swearing-in exercise, and so the security arrangement was somewhat of an anti-climax. But it further gave critics of the National Judicial Council, NJC, and government the added weapon to argue that the matter of the suspension and replacement of Salami, following the recommendation of the NJC, the highest judicial body, has an infusion of politics. That, however, is not talking about the noise that accompanied the whole episode, as to whether Salami or Aloysius Katsina-Alu, the outgoing Chief Justice of Nigeria, CJN, is guilty of abuse of office or attempt to pervert the course of justice. The outcry last week was that President Goodluck Jonathan acted ultra vires by appointing an acting president for the office Salami sought the court to protect for him. Meanwhile, at the court that day Salami’s suit suffered a setback as Akin Olujinmi, Senior Advocate of Nigeria, SAN, his counsel failed to get the court to start hearing on the prayers of his client to nullify the suspension and re-instate him. Justice Donatus Okorowo said the case is better left for another judge to administer because his tenure as a vacation judge was about to elapse. Olujinmi’s request for substitute service, to guide against earlier experience when the NJC refused to be served court notice was also not granted.
So the decision of government came in the middle of a controversy over whether President Jonathan has the legal authority or moral power to act on the decision of the council. Sources say the President consulted top jurists and people considered to be the conscience of the Bar and Bench. We gathered that opinions were divided for and against endorsing the NJC recommendation. Some felt that the Salami-Katsina-Alu face-off is a manifestation of deeper morbidity in the judiciary and should not be treated in isolation; rather he should use the development to clean up the rot in the judiciary. Some advised that he should uphold the rule of law by accepting the recommendation of NJC to emphasise the independence of the third arm of government. This school of thought feels that the President’s arms are tied. However, some members of Jonathan’s kitchen cabinet felt that he should wait for the court processes in the case to be disposed of before wading into it to avoid political backlash. One source said that the impression they had was that the President saw some attraction in the suggestion that he should suspend action until all related court cases are dispensed with.
Even before the President came into the picture, some people had read political connotation to the issue. This people therefore say that the action of government gave credence to some speculation that Salami is a victim of some political manoeuvring. This speculation draws strength from the belief that Salami is a friend of Bola Tinubu, former governor of Lagos State and leader of opposition Action Congress of Nigeria, ACN. Tinubu has had to deny allegations by Senator Umaru Dahiru that the former governor lobbied the Senate for the confirmation of Salami when he was nominated for the office of president of the court of appeal. The feeling is that if Salami benefitted from a lobby by Tinubu, it is possible for him to bend the rule for him. They have not been able to prove this. Notwithstanding the denial by the politician, the stance of his party continued to be viewed from a partisan perspective. A body called the National Vanguard for Democracy and Development, NVDD, said in a release ‘We are sad that the party which has always advertised its perceived democratic principles on the rooftops will turn its venoms against our nascent democracy. ACN, through that statement predicting Armageddon, presents itself as the biggest threat to democracy and the rule of law.’ The statement signed by Emeka Obinawu, its publicity secretary however said ‘Our democracy is strong and cannot be threatened by the selfish interest of an individual or the proven misconduct of a few.’ Another group, which goes by the name; Alliance for Truth in Defence of Freedom, faults the condemnation of the party and other groups, particularly when they had been silent over similar decisions by the NJC in the past to caution its members. The body said in a newspaper advertorial last week ‘Enough of this orchestrated campaign to destroy discipline in the judiciary. Nigeria is bigger than any individual.’
Save Judiciary Initiative, a non-governmental organisation, NGO criticised Salami for setting up a 13-man panel to probe the tenure of Abdullahi as president of the court of appeal, PCA. They see this as veiled intimidation of Abdullahi who was chairman of the NJC panel. The body sees this as a strong-arm tactics by Salami to cow the former PCA and evade ‘justice.’ A statement issued by Kingsley Adewale, its chairman, the group stated: “We are convinced that this probe of Justice Abdullahi by Salami played a prominent role in the decision of the NJC panel saying absolutely nothing on the facts before it. Or what was Justice Salami doing since he assumed office in December 2009 that he had to wait till he was being probed two years later before ‘probing’ his predecessor?”
Justice For All Nations, JFAN, a US-based NGO said the final position of the NJC asking Justice Salami to apologise to the council and the CJN, Justice Katsina-Alu over his indictment for perjury as a bad example. According to them, "If apology could be recommended as penalty for perjury, that shows what Nigeria has in its legal institution are a bundle of deceivers that specialise in dressing corruption and pretend to be dispensing justice.”
In a statement signed by its coordinator, Dada Popoola, JFAN, wondered: “Our question is, does that mean that Justice Salami, who committed perjury, will now be sitting in judgment over other people who committed the same offence? And if such a case is brought before him, is he also going to simply overlook Section 117 of the Criminal Code, Laws of the Federation, which makes perjury a criminal offence and Section 118, which prescribes 14 years imprisonment for offenders?”
Would the President not have been justified if he accepts the verdict of NJC? Not really, because the council did not indict Salami for any wrongdoing. The only thing it has against the judge is that he lied under oath, when he said that the CJN tried to use him to subvert justice in the governorship election petition in Sokoto State. For that the NJC asked Salami to apologise to Katsina-Alu, on a matter that, if true, should be treated as criminal. But when the man refused to apologise, the council recommended his retirement.
That and the action of the President have drawn acerbic reactions from labour, the Nigeria Bar Association, NBA, and the Academic Staff Union of University, ASUU. They see the President’s action as an attempt to drown the voice of reason and sweep under the carpet a serious matter bordering on corruption in the judiciary. Joseph Daudu, president of the NBA said the body is fighting because neither the NJC nor the President was right in taking a decision on a matter before the court. They also insist that the President does not have the power to remove the PCA, except through the recommendation of the National Assembly. Constitutionally, it requires two-third majority vote in the Senate to remove the PCA or CJN. But the National Assembly is on annual vacation and so unavailable to play any part in the conflict until September 13. The suspicion is that the urgency may have arisen because of the retirement of the CJN, whose last working day is this Friday, August 26.
Now, the legislature is on break, and the judiciary is on fire. What the President did was, what a source called, a middle way approach between outright retirement as suggested by the NJC or a dismissal of decision of the council, which may then be interpreted to mean support for one person at the expense of the system. If the President says the NJC was wrong to have suspended Salami, it is subjudice, if he accepts the recommendation for retirement he would also have closed a case before the court. But the middle of the road approach has not helped matters. Critics say it is political. Those who hold this view say that Jonathan merely danced to the tune of some Peoples Democratic Party, PDP, hawks who are said to feel that it is too dangerous to leave Salami as the PCA after the exit of Katsina-Alu.
Though the government did not retire Salami, as it only appointed acting PCA, ‘pending when all issues relating to the office of the president of court of appeal are resolved,’ the opposition smelt a rat. While the NBA and some other bodies say the President should have waited for the determination of the suit filed by Salami, the opposition sees self-preservation in the action of Jonathan. They argue that the removal of Salami was a deliberate action by the ruling party to protect its members whose elections are being challenged from judicial activists.
The office of the President became very uncomfortable with the interpretations given to the action of the President last week. Reuben Abati, presidential spokesperson demonstrated that concern when he said, “Mr. President is being turned into a scapegoat in a matter he is innocent of. His primary concern is stability. He acted in the best interest of the judiciary to avoid a vacuum and maintain stability. If he had withheld assent he would have been criticised still. The President is not a party to this case; it will be unfair to drag him into it”.
That did not placate the opposition. They allege that the ruling party is still unhappy that they lost the governorship seats of Osun and Ekiti states to the ACN and blame Salami for the loss. The fear is that despite the widely acclaimed free, fair and credible elections in April, some governors may have overreached themselves and rigged their elections, as they were very unpopular. Under the forensic examination of the ballot papers, which the opposition parties are insisting on, the fear is that a sizeable percentage of the votes for the governorship election will be found to be massive thumb printing. The Internet is awash with videos of scenes of organised massive thumb printing of ballot papers in some states.
Those who argue that the judiciary was being emasculated traced the alleged plot back to efforts to change the law against the court of appeal from being the last court for election matters at the state level. They refer to efforts by the PDP dominated sixth Senate to neutralise the power of the court of appeal as the final court in the determination of governorship and National Assembly election cases by amending the 1999 Constitution to stipulate that governorship election petitions shall now go up to the Supreme Court, like that of the president. And that the court can no longer declare anybody winner of an election; rather the court shall nullify the election and order a re-run. In other words, under this amendment, the verdict in the governorship election petition cases in Ekiti, Osun, Edo and Ondo states would have been a re-run with the probability that the incumbent who lost at the appeal court would win the re-run. The cases in those states were decided in favour of the opposition. PDP leaders have argued that they suspect that Salami influenced the judgments. He has been absolved. However, the court has already declared this amendment null and void as it interferes with the power of the court to grant relieves and right wrongs. This reversal means that the problem of an ‘unfriendly’ court of appeal still haunts the ruling party. So opposition politicians say that the removal of Salami was to puncture the judicial activism at the court of appeal. Already, the Congress for Progressive Change, CPC, are alleging that the real target of sacking Salami is their presidential election petition against the election of Jonathan, now before the appellate court.
The history of the Salami-Katsina-Alu face-off dates back to the Sokoto governorship election petition case whose verdict was ‘arrested’ by the CJN just five days to the appeal court’s final verdict. It is widely alleged that the verdict would have gone against the ruling party had the appeal court delivered its judgment. It is alleged that a lot depended on PDP’s not losing the case as the fate of an influential traditional ruler depended on it. It was a fight for survival and he allegedly ran to the Presidency for help.
According to Salami’s sworn affidavit, he alleged that the CJN asked him to compromise justice in the Sokoto case, which he resisted. “I set up panels of the appeal court to dispose of the pending petitions including that of Sokoto. I was, however, shocked when subsequent to the setting up of a panel on the Sokoto Gubernatorial Election Petition appeal, and after all parties had filed and exchanged briefs, adopted same and judgment reserved, the 1st defendant (Justice Katsina-Alu) summoned me by telephone to his office in Abuja. The 1st defendant asked me to disband the panel I had set up for the appeal on the excuse that if the panel allowed the appeal and removed the governor, the ripple effect would lead to a removal of our highly revered Sultan of Sokoto.”
The CJN felt that his authority was being challenged as Salami insisted that though he is the boss, legally he cannot interfere in the court process. The CJN felt that his instruction was disobeyed. Unfortunately, it leaked that the CJN sought to arrest the judgment. Next, the Federal Judiciary Service Commission resolved to promote the PCA to the Supreme Court, which many analysts read as killing two birds with one stone. Salami rejected the promotion and went public with the sordid details of the subterranean manoeuvres and power play.
Justice Salami further averred that the decision to move him to the Supreme Court was taken in his absence. In what looked as a coup, Justice Salami revealed that he was actually encouraged by the CJN to attend his aunt’s 80th day prayer, as there was nothing on the agenda serious enough to compel his attendance. He alleged that at the purported meeting of the Federal Judicial Service Commission, the CJN directed that the deliberations should be kept a close secret.
He accused Muhammed Adoke, the attorney-general of the federation, AGF of playing a part in the plot to remove him. According to him, Adoke held a secret meeting with the CJN where they allegedly plotted the transfer to the Supreme Court. He suspected that “the game plan to move me to the Supreme Court will facilitate the efforts of the 1st defendant to plant his own minion or stooge as the president of the Court of Appeal to do his biddings as and when needed.”
Salami’s star-crossed career also appears to have a cultural background. He is an Igbomina from Ganmo, few kilometres from Ilorin, Kwara State. The small town is known for being a stubborn oasis, which successfully resisted the Sokoto Caliphate during the jihad. Its people are known for close attachment to their tradition and their integrity. They are also said to be uncompromising. As the saying goes, if you are looking for a man who will do your bidding, then an Igbomina is not the right choice.
It was alleged that Salami’s rise to the coveted seat of PCA after Justice Abdullahi did not please some powerful interest in the North. The current activism may have confirmed that fear. There is also the fear that Salami may know more about the corrupt deals in the hallowed chambers of the judiciary than he has revealed. He is seen as capable of an upset. His alleged closeness to Tinubu further increases his risk factor.
Those who say that Jonathan should have lined up behind the suspended PCA say that would enable him fight corruption in the judiciary. They claim that in recent times the highest echelon of the judiciary has been enmeshed in allegations of corruption that it should be a matter for concern to the President. For instance, shortly before he left office, Abdullahi, former PCA who headed the NJC panel had to deny some allegations bordering on his integrity. During the Umaru Yar’Adua’s time, a security report was alleged to have revealed that up to N1billion had been accepted as bribe by some persons to influence the decision of the governorship election tribunal of a state, which involved a former aide to former President Olusegun Obasanjo. It is alleged that before the judgment could be delivered Yar’Adua blew the lid, and caused the panel to be dissolved.
However, lawyers are not always in agreement that the judiciary is as corrupt as it is made to be. Even in the current case, there are lawyers who believe that all the parties to the crisis have their faults and that no party should be seen as a saint. One of them is Segun Emehin, an Ilaro-based lawyer. He told the magazine at the conference venue last week, “I think in the first place, since Salami is retired, he has to leave. Another person has been sworn in. Whether you’re saying he is right or wrong… I don’t want to be drawn into the merits of the matter, because both of them have their hands full of errors, because they shouldn’t have dragged the judiciary into the realms of the murky waters of politics.” Most of the people who condemn the President appear to miss the fact. Is Salami on suspension or in retirement? The statement from the Presidency, which says that ‘pending’ the resolution of issues relating to the office of the PCA does not pre-suppose retirement.
Salami is seen in some quarters as the voice of reason that is up in arms against a corrupt system. Hear Nasir Useni, NBA chairman in Akure, Ondo State: “A panel was set up by the NBA and we found nothing absolutely wrong in what Salami is doing. The man stood up to defend the integrity of the judicial system and that is why we feel he is being punished. That may be why NBA rejected his suspension and advised the President to shun the NJC. In protest the association announced a boycott of all NJC programmes.
Dele Adesina, SAN said; “What the Bar is saying is that the crisis is having a telling effect on the judiciary. It’s robbing the confidence of the people in the judiciary.” John Amajuoyi, Umuahia (Abia State) NBA chairman told the magazine in Port Harcourt last week, “NJC was a colossal failure in the management of this crisis. I thought NJC would have played pacific role but they took sides in the matter.” He said lawyers believe that Jonathan “was hasty in his action.” Useni said the actions of the President and NJC were “subjudice.”
Justice Emmanuel Ayoola, former chairman of the Independent Corrupt Practices and other Related Offences Commission, ICPC, also says the President’s hands are not tied by the NJC. According to him, Jonathan has the power to adopt, or not to adopt the recommendations. Daudu says that there is nowhere in Section 158 of the 1999 Constitution where the NJC is empowered to take the decision it has taken. According to him, this “section is not an ouster clause for the power of the court to intervene and correct perceived errors made by the NJC which has provided a cause of action to the injured party”. He says that the Bar will not watch and see the legal profession being brought into disrepute.
On another plain, the NBA is at war with Katsina-Alu for fixing the inauguration of the 2011 SANs for Friday, August 26 when the annual NBA conference was on in Port Harcourt. Traditionally, the SAN investiture holds September, and that of 2011 is supposed to hold September 19, but because the CJN is retiring on August 28, he brought it forward to August 26, his last day in office. This is seen as selfish by the Bar, and it does not further endear the CJN to both the Bar and Bench.
Additional report by ARUKAINO UMUKORO