It all seemed a joke when, in 2008, foremost lawyer and human rights activist, Festus Keyamo filed a lawsuit naming the President of the Federal Republic of Nigeria, the Attorney General of the Federation and all service chiefs as defendants. In a most controversial ruling on the case, Justice Adamu Bello of the Federal High Court, Abuja, nullified the appointment of all service chiefs by President Goodluck Jonathan on grounds that they violated the constitution. Although the Judiciary never ceases to amuse Nigerians with its controversial positions on important national issues, Monday’s ruling was a breath-taking display of arrogant impertinence and self-aggrandizing recklessness by Justice Bello. This latest instance of judicial activism, clearly intended to embarrass Mr. President and hold his office to public contempt and ridicule, is a joke taken too far. Justice Bello’s action ridicules Nigeria in the comity of nations as a country with deeply dysfunctional institutions where bizarre things can happen.
In suit No: FHC/ABJ/CS/611/2008, Keyamo had sought the determination whether by the combined interpretation of the provisions of Section 218 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 18 of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria, 2004, the 1st defendant can appoint the Service Chiefs of the Federation, namely: (a) The Chief of Air Staff (b) The Chief of Army Staff and (c) The Chief of Naval Staff, (that is, the 3rd, 4th & 5th defendants who were appointed as such) without the confirmation of the National Assembly first sought and obtained. Also in contention was whether Section 18 (1) & (2) of the Armed Forces Act, Cap. A.20, Laws of the Federation of Nigeria, 2004 is not in conformity with the provision of the 1999 Constitution so as to fall within the category of existing laws under Section 315 (2) of the Constitution of the Federal Republic of Nigeria, 1999, that the President, may, by Order, modify its text, to bring it into conformity with the provisions of the constitution.
Delivering judgment, Justice Bello declared the appointment of service chiefs as illegal, unconstitutional, null and void. He also issued a restraining order against the president from further appointing service chiefs without prior approval of the National Assembly. Justice Bello’s ruling threw up the judiciary as the butt of jokes and brings to the front burner, issues of law and ethics in governance, and constitutes an avoidable pressure on the already over-heated polity. It is disturbing that this judicial indiscretion has not invited the disapproval of the apex court or, perhaps, worse still, enjoys the tacit approval of the Chief Justice (CJN) and the Higher Judicial Council (HJC).
Whatever the case, this is a clear demonstration of how far activist judges are willing to travel to seek political relevance by legislating from the bench. Truly, Nigeria has been unlucky to have many judges seemingly incapable of appreciating basic ethics of governance even when they are ever so quick to dishonestly cite starre decisis. The ruling levels serious allegations of official misconduct against the President. But the reasoning behind the judgment is nebulous, objectionable, unconvincing and lacks credibility. If those who are expected to guide Justice Bello on the irrationality of his actions failed in their duty, can the Minister of Justice and Attorney General of the Federation claim ignorance of Justice Bello’s public grandstanding?
Assuming arguendo that Mr. President acted in error; it is difficult to explain Justice Bello’s pugnacious bellicosity. Legislators with constitutional powers of oversight, whose duty it is to hold the president accountable, in line with Section 143 of the Constitution have not complained about any constitutional ambiguity in the appointments of service chiefs. Even if such an action were desirable, it will be preposterous to entrust the important business of censuring a democratically elected President to an ego-offensive, sycophant, considering Justice Bello’s antecedent of arm-twisting, vindictiveness, self-serving and overbearing disposition. There is really nothing to make the ruling compelling at this time if not for the ego of Justice Bello and his insatiable penchant for seeking political relevance.
It is worth noting that, the practice of appointing service chiefs without prior approval of Parliament began under former President Olusegun Obasanjo and continued under the Umaru Musa Yar’Adua administration. Therefore, the contention of official misconduct against President Jonathan is non sequitur. It undermines in no small measure the integrity of the office of the president of the federal republic and that of the person occupying it. The role of the President in the appointment of service heads is minimal and consistent with the constitutional principle of checks and balances in line with sections 147 and 148 of the 1999 Constitution which vests in the President, the discretional power and authority to appoint officials into high public office.
Suffice it to say that the mechanism put in place by the constitution have proved to be good enough as a check on the excesses of both the President and the organ constituted to address such excesses. The principle of checks and balances is what Justice Bello’s ruling, in essence, rubbishes. The judgment is not only too brazen but clearly unconstitutional; an act for which he should be held accountable. The time has, therefore, come to remind the CJN and the Minister of Justice that Justice Bello has stepped out of bounds, acting ultra vires to censure the President of the Federal Republic of Nigeria, and he must be reined in immediately. President Jonathan himself needs to demonstrate that he understands the implication of Justice Bello’s judgment and back it up with corresponding action.
The Nigerian judiciary is yet to rise above its many challenges and many judges have been publicly rebuked and sanctioned for abuse of office. The magnitude of corruption has made the judiciary a laughing stock, an object of ridicule and public opprobrium; as public trust in it has waned considerably. Their role as guarantor of democracy has become a huge avenue for self-aggrandizement because the powers which are supposed to be exercised judiciously have fallen prey to extraneous factors such as offer of gratification and feeling of obligation for favors received from clients. Cynics now rightly say that judges are as good as political appointees, indebted to their political godfathers and so the courts have become not the hope but the albatross of the common man.
It is absolutely rare in Nigeria for the President to go out of his way to appoint and impose persons of his choice as service heads, especially in the military. The practice, which has more or less become the norm, is that the most senior officials in the various departments take over upon the departure of the incumbent. It only needs the ceremonial approval of the President through the formal appointment process. There are more important issues, which will positively impact the lives of Nigerians which have remained largely neglected by the judiciary. It needs restating that what can make sense to Nigerians now is any step that will bring about improvement in their lives; and not the antics of an overzealous, activist judge seeking political relevance and acceptability; which obviously is the underlying objective of the self-seeking ruling by Justice Bello.
