Why the constitution shields judicial officers (2)
Posted: 05/Mar/2019

IT is part of our colonial history that following the amalgamation of the Northern and Southern Protectorates in 1914 by Lord Lugard, we had the Clifford Constitution of 1922, the Richard Constitution of 1946, the McPherson Constitution of 1951 and the Federal Constitution (otherwise known as the Littleton Constitution) of 1954. That was before Independence in 1960. 

At independence, we had the 1960 Independence Constitution. In our third independence anniversary the country became a republic and had the 1963 Republican Constitution. After some experience of military regimes, the country returned to a civilian government by the promulgation of the 1979 Constitution of the Federal Republic of Nigeria. 

In all these Constitutions there was no provision for the National Judicial Council, so how come the Council was established in the 1999 Constitution? When General Abdulsalam Abubakar, (76) GCFR, came to power on June 9, 1998 following the death of General Sani Abacha, he set up a 22-man Nigerian Constitution Debate Committee. 

He set up the committee on November 2, 1998 and inaugurated the committee on November 11, 1998. He appointed Justice Niki Tobi (1940-2016) as the chairman of the committee. He also appointed Dr. Suleiman Kurmo as his deputy and Alhaji Abdullahi Seidu Faskari was appointed the secretary of the committee. 

He gave the committee till December 31, 1998 to produce a constitution. You can see the thinking of government at that time. In short, General Abdusalam wanted a constitution to be produced within two months. 

As at the time of the appointment, Justice Niki Tobi was associate Justice of the Federal Court of Appeal. He was former Dean of the Faculty of Law and Deputy Vice-Chancellor (Academic Services) University of Maiduguri. Justice Niki Tobi’s committee visited Enugu, Port-Harcourt, Kaduna, Kano, Maiduguri, Sokoto and Lagos. The committee received memoranda from notable Nigerians including Femi Falana, SAN, Professor Ben Nwabueze, SAN, Dr. Clement Isong, Dr. Onyema Ochuoha, Chief Harold Dappa-Biriye, Prof. Chitoro Achinenwu, Dr. Gesiye S. Angaye, Alhaji Ibrahim Gusau, Professor Ibrahim Mukoshy, Alhaji Bukar Umaru Mandara, Chief Goke Ajiboye, Mr. Alfred Oladigbo, Sheik Hassan El-Badawi, Chief Gani Fawehinmi, SAN and several people. 

The committee also received memoranda from Nigerians in the diaspora. The committee had its office at the International Conference Centre, Abuja. The Committee was directly under the office of the Secretary of the Government of the Federation which provided its needs and requirements. My then boss, the Secretary to the Government of the Federation, Alhaji Gidado Idris posted several officers including me to help the committee in discharging its duties. There was apathy generally in the submission of memoranda. 

As at the time the presidential election was held on February 27, 1999, the constitution was not ready. On April 22, 1999, the committee submitted its reports to General Abdusalam. 

On May 5, 1999, General Abdusalam promulgated Decree 24 as the 1999 constitution. The sad aspect of it all was that the Armed Forces Provisional Ruling Council only worked on the report of Justice Niki Tobi’s committee for fifteen days. No wonder the 1999 Constitution is full of errors and omissions.
The addendum of the 1999 constitution states that WHEREAS the Federal Military Government of the Federal Republic of Nigeria in compliance with the Transition to Civil Rule (Political Programme) Decree 1998 has, through the Independent National Electoral Commission, conducted elections to the office of President and Vice-President, Governors and Deputy-Governors, Chairmen and Vice-Chairmen, the National Assembly, the Houses of Assembly and the local government councils; 

AND WHEREAS the Federal Military Government in furtherance of its commitment to hand over to a democratically elected civilian administration on May 29, 1999, inaugurated on November 11, 1998, the Constitution Debating Co-ordinating Committee charged with responsibility to, among other things, pilot the debate on the new Constitution for Nigeria, co-ordinate and collate views and recommendations canvassed by individuals and groups for a new Constitution for Nigeria; 

AND WHEREAS the Constitutional Debate Co-ordinating Committee benefitted from the receipt of large volumes of memoranda from Nigerians at home and abroad and oral presentations at the public hearings at the debate centres throughout the country and the conclusions arrived thereat and also at various seminars, workshops and conferences organized and was convinced that the general consensus of opinion of Nigerians is the desire to retain the provisions of the 1979 Constitution of the Federal Republic of Nigeria with some amendments; AND WHEREAS the Constitution Debate Co-ordinating Committee has presented the report of its deliberations to the Provisional Ruling Council; 

AND WHEREAS the Provisional Ruling Council has approved the report subject to such amendments as are deemed necessary in the public interest and for the purpose of promoting the security, welfare and good governance and fostering the unity and progress of the people of Nigeria with a view to achieving its objective of handling over an enduring Constitution to the people of Nigeria; 

AND WHEREAS, it is necessary in accordance with the programme on transition to civil rule for the Constitution of the Federal Republic of Nigeria 1979 after necessary amendment and approval by the Provisional Ruling Council to be promulgated into a new Constitution for the Federal Republic of Nigeria in order to give the same force of law with effect from May 29,1999.”
We were all shocked and surprised that the 1999 Constitution ruled that “The National Judicial Council shall have power to – recommend to the President from among the list of persons submitted to it by – the Federal Judicial Service Commission, persons for appointment  to the Offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, the President and Judges of National Industrial Court, and the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointments to the Offices of the Chief Judge and Judges of the High Court of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja. 

How workable or compatible is such a body within a federal system in which greater autonomy is being devolved to the lower federating units? Are there other ways and means of enhancing the autonomy and independence of the judiciary without undermining a truly federal arrangement? 

With the 1999 constitution, we have the National Judicial Council and Federal Judicial Service Commission. The two bodies are to be headed by the Chief Justice of the Federation, who is also the head of the Supreme Court. In this country we have doctors, engineers, nurses, architects, pharmacists, teachers, bankers, advertisers, journalists, accountants and other professionals. Why did the constitution not create any body to discipline these professionals? Although we are aware that these professional bodies have rules and regulations for their members. No doubt the 1999 constitution over protects the judicial officials. Once an institution is over protected, abuse is inevitable. 

Eric Teniola, a former director at the Presidency wrote from Lagos.