The Big Conspiracy Against A Nigerian Top Judge

 The Inside story of the web of conspiracy against Justice Ayo Salami: how President Jonathan, acting in cahoots with the Peoples Democratic Party, the departing CJN, the NJC and the attorney-general, all acted in concert to kick Salami out of the Court of Appeal

As swearing in ceremonies go, last Monday’s inauguration of Justice Dalhatu Adamu as acting President, Court of Appeal, was undeniably one of the most lustreless in the history of the nation’s judiciary. Presided over by the embattled Aloysius Katsina-Alu, the departing Chief Justice of Nigeria, the ceremony virtually held behind closed doors in one of the offices at the Supreme Court. It was attended by just a handful of judges. Top members of the Bar, serving and retired judges, who are regular faces at such events, were conspicuously absent. The media, including government-owned ones usually granted ‘privileged access’, when there is the need for such hush-hush in government activities, were locked out of the ceremony. It was a strange ceremony. A more poignant indication of the state of unease in the judiciary was the heavy presence of heavily armed policemen at the gates of the Court of Appeal headquarters and the premises of the Supreme Court, both located in Abuja’s Three Arms Zone since last Monday.

There was also a menacing, intimidating police presence at the residence of Justice Ayo Salami in Abuja. The swearing in of Justice Adamu was a key episode in the still unfolding drama, which many stakeholders and commentators consider as having dented the integrity of the judiciary.

On 21 August, President Goodluck Jonathan registered his involvement in the saga, when he announced the appointment of Adamu as Acting PCA. Speedily acting on the recommendation of the National Judicial Council, NJC, the President, in a statement signed by Reuben Abati, his spokesperson, announced Adamu’s appointment. “President Goodluck Ebele Jonathan is in receipt of a correspondence dated 18th August, 2011, from the National Judicial Council (NJC), recommending the compulsory retirement of Hon. Justice Isa Ayo Salami, OFR, for misconduct in accordance with the provisions of Section 292 (1) (a) (i) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and Rule 1 (1) of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria,” the statement read.

The President said Adamu’s appointment, which effectively removed Salami, who functioned as the PCA until last Monday and still has two years to go before his retirement, is in exercise of the powers conferred on him by Section 238 (4) of the 1999 Constitution of the Federal Republic of Nigeria as amended. It also indicated that Adamu’s appointment was dependent on the resolution of “all issues relating to the office of the President of the Court of Appeal.” This, apparently, was a tactic designed to deflect criticism from the President for his indifference to constitutional provisions on the appointment and removal of judges in office.

It did not work as envisaged by the Presidency. Salami’s removal immediately provoked a nuclear blast of outrage across the country. Informed opinions highlighted the dangers the action constituted to the rule of law and the independence of the judiciary. Central to the grudge against the President was not because he stepped over the line, effectively committing an impeachable offence, in removing Salami from office under the subterfuge of asking him to step aside for an acting PCA. The daggers were drawn against him because Salami had also filed a suit to challenge the recommendations of the NJC to the President that he should be retired.

Given the Jonathan’s administration oft-stated commitment to the rule of law, most Nigerians expected the President to allow for the conclusion of the suit before taking any action on the matter. This is in addition to the earlier suit Salami had filed on 15 August, in which he challenged his indictment by the panel set up by the NJC to investigate his allegations against the CJN.

Leading the charge against Jonathan was the Nigeria Bar Association, NBA, which was very critical of Adamu’s appointment just about two hours after it advised the President to ignore the recommendations of the NJC. “What is significant is that, once again, the President has lost a clear opportunity to range himself on the side of due process and rule of law,” said Joseph Daudu, NBA President, in an address to the over 5000 lawyers attending the body’s annual conference in Port Harcourt, Rivers State.

Daudu also announced the immediate withdrawal of members of the Bar from the NJC. This, according to him, is because the participation of members of NBA in NJC activities had been unproductive, cosmetic and merely a veneer of legitimacy for unwholesome policies of the administration of justice in the country by the Council.

The Action Congress of Nigeria, ACN, through Lai Mohammed, its National Publicity Secretary, described the President’s action as “clearly sub-judice.”

According to Mohammed, Jonathan’s decision “amounts to a repudiation of the oath he took to protect the constitution of Nigeria and uphold the rule of law”. The party also accused the President of exhibiting executive recklessness when he acted on an issue that is pending before the court and also relied on a section of the Constitution that deals with appointment, rather than removal, to get rid of Salami. “By rushing to remove Justice Salami on the strength of Section 238, the President has committed the same faux pas as the NJC clique and violated the Constitution. He has filled a post in which no vacancy exists, and allowed himself to be guided by political expediency, rather than the provisions of the Constitution,” said Mohammed, who is also a lawyer.

The party had earlier noted that in accordance with Section 292 of the 1999 Constitution of the Federal Republic of Nigeria, the President of the Court of Appeal is among the judicial officers that can only be removed by the President, acting on an address supported by two-thirds majority of the Senate.

Lagos State Governor, Mr. Babatunde Raji Fashola, a Senior Advocate of Nigeria, was very suspicious of the President’s motive. “I was very concerned about what seemed the very quick rush to give effect to the recommendations. There are so many other problems facing this nation that have not received such quick attention,” Fashola said, while receiving a protest letter on the removal of Salami from office from a group led by Ayo Opadokun and Dr Joe Okei -Odumakin for delivery to President Jonathan.

The Congress for Progressive Change linked the swiftness with which President Jonathan responded to the recommendation of the NJC, even when he knew that he is not on a solid legal ground to the ongoing challenge against his election by a panel led by Salami. According to ACN, the President’s action had confirmed speculations that the President might have been secretly pushing for the removal of Justice Salami through some “hawks in the NJC over fears that the petition by the Congress for Progressive Change (CPC) presidential candidate, Muhammadu Buhari–which is being handled by the Court of Appeal – may go against him (Jonathan).” A new amendment in the Constitution by the National Assembly indicated that tribunals must conclude hearing of petitions within six months. Section 285(6) of the amended Constitution states that, “An Election Tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition”. If this section of the constitution is strictly followed, then, the CPC has about two months left to argue its case before judgment is expected to be delivered. But CPC members feared that with the removal of Salami, who had been presiding over the case and his replacement with Adamu, the hearing of the petition will have to start afresh. Salami had earlier dismissed an application by lawyers to Jonathan and the PDP, asking the tribunal to strike out CPC’s petition on the grounds that it was filed on 8 May, 2011, which was a Sunday, and that the CPC presidential candidate, General Muhammadu Buhari and his running mate, Tunde Bakare, were not party to the petition. Yinka Odumakin, spokesman to Buhari, told a national newspaper that if the “coup” carried out by the NJC and supported by the President is allowed to stand, it will effectively kill the petition of his boss.

Some lawyers and politicians who spoke to this magazine last week also said with Jonathan’s case before Salami, the President should not have acted on the NJC recommendations. “Why did the President quickly heed the NJC recommendations, without waiting for the verdict in the court over Salami’s suit? Why did the NJC respond to the petitions filed by the PDP against Court of Appeal judges, when it refused to act over a similar allegation made against Justice Thomas Naron in the handling of the First Osun Election Petitions Tribunal? Why would the president give an official seal to a recommendation made by a third of the members of the NJC?”, a senior lawyer asked last week.

Professor Itse Sagay, constitutional lawyer and a Senior Advocate, described the action of NJC and President Jonathan as a gross breach of the rule of law: “The NJC ignored a judicial process, contrary to the rules laid down by the Supreme Court itself. I call this the height of illegality and quite unbecoming of a respectable body such as the NJC. I have a feeling that in the end, those members of the council who want Justice Salami to go down will definitely go down themselves,” he said.

Joseph Otteh, Executive Director, Access to Justice, also queried NJC’s decision in view of the fact that it was made public that Salami had filed a suit to challenge the council’s order on him to tender an apology to the CJN. According to him, the NJC should have refrained from taking any action on the allegations against Salami irrespective of its interpretation of the merit or otherwise of the suit he filed in court in accordance with rule of law and judicial precedent. “This has been the position of the Nigerian law over a long period. The NJC itself has refused to take an action concerning a number of matters and petitions in the past because it said the matters were subjudice. Why is this case different then? The NJC example in this case sets a very pernicious precedent and will undermine the adjudicative authority of Nigerian courts and the rule of law and will be exploited by many others to undermine the courts,” Otteh argued.

Bamidele Aturu, human rights activist and lawyer, described Salami’s suspension as “a farcical illegality”. “The news that the National Judicial Council has suspended Honourable Justice Salami, in spite of service on it of the process filed by him challenging the setting up of the Auta Committee, is a condemnable illegality. That the brazen decision was taken by a body that has responsibility for overseeing the judiciary shows that our attempt at building a liberal democracy is imperiled, simply on account of the illiberal persons that superintend the administration of justice in this country,” Aturu contended.

The Congress of Nigeria Political Parties, CNPP, in a statement signed by its National Chairman, Alhaji Balarabe Musa, wondered if heaven would have fallen if the NJC had allowed the suit filed by Salami to be heard, stating that it is trite law that the integrity of the judiciary and the sanctity of the rule of law should be protected at all times and therefore no party should resort to self- help. “It is our considered view that the action of the National Judicial Council is contemptuous, scandalous, and has exposed the perfidy of the judiciary and undermines the integrity of the temple of justice in Nigeria,” said CNPP.

Lagos-based lawyer and human rights activist, Femi Falana advised Jonathan to ignore the NJC recommendations and argued that by virtue of Section 292(1) of the Constitution, the President of the Court of Appeal can only be removed from office by the President, acting on an address supported by two-thirds of the Senate. He added that apart from recommending to the President the removal of the President of the Court of Appeal, the NJC lacks the power to remove him through suspension from office. He also said the NJC itself has set a precedence of suspending deliberations on any matter that was pending in court so as not to present the Court with a fait accompli.

Before President Jonathan’s endorsement of the NJC recommendation, the Nigerian Bar Association had declared in a communiqué read at the end of the pre-conference meeting of the National Executive Committee, NEC, of the association in Port Harcourt, Rivers State, on 22 August, that there was no constitutional backing for the NJC position: “Nowhere in Section 158 (of the Constitution) is the NJC allowed to proceed with the action it took, regardless of the pendency of court proceedings. The NBA argued that Section 6 (1) of the 1999 Constitution explicitly provides that the judicial powers of the federation shall be vested in the courts. If the framers of the constitution had wanted to exclude courts from interfering in the process of the NJC, it would have been expressly said in Section 158 of the said constitution,” the communique read.

Information available to this magazine further confirmed the conspiracy against Salami, which has as its pivot Jonathan, the Attorney-General, CJN, NJC and the PDP. The face- off between the two justices, as contained in the affidavit filed by Salami, began on 18 February, 2010. The CJN had on that day invited Salami to his office and asked him to desist from delivering the judgment of the five-man appeal panel he constituted in the Sokoto Division of Court of Appeal on the petition filed by Maigari Dingiyadi of the Democratic People’s Party, DPP, against the election of Aliyu Wamakko of Peoples Democratic Party as governor of Sokoto State in the 2007 elections. Salami said the CJN told him to disband the panel on the excuse that if the panel allowed the appeal and removed the governor, the ripple effect would lead to a removal of the Sultan of Sokoto and that the judgment had leaked. But the PCA said he immediately replied that he would not disband the panel as he was not convinced that there is a connection between the parties to the election petition and the Sultan who is also not a party in the case.

According to the PCA, the CJN told him that in the alternative, Salami should “direct the panel of justices to decide against the Appellant”. The President of the Court of Appeal said he also refused this option, insisting that he would not do anything to pervert the cause of justice. In an unprecedented move, the CJN later issued a letter to the Justices of the Court of Appeal hearing the Sokoto appeals and directed that further proceedings be halted. Shortly thereafter, the Supreme Court of Nigeria entertained a motion filed by the lawyers to the PDP Governor of Sokoto State by which all proceedings before the Court of Appeal, Sokoto, in relation to the governorship case were stayed pending the final determination of other applications before the Supreme Court. As stated by Salami, the “appeal in the Sokoto gubernatorial election petition, which was pending before the Sokoto Court of Appeal, was eventually dismissed by the Supreme Court on 21st November, 2010, notwithstanding that the appeal was not before the Supreme Court.” Salami added that a Committee set up by the NJC later vindicated him as it told the CJN in clear terms that he had no constitutional and statutory power to stop proceedings in any division of the Court of Appeal as he did. “Since then, there has been no love lost between me and the 1st Defendant (CJN)”, Salami added.

Lawyers and renowned retired judges criticised the “arrest” of the judgment by the Katsina- Alu-led Supreme Court, arguing that the court had no power to adjudicate on a case which was not before it. The fulcrum of their arguments is that under the Constitution of the Federal Republic of Nigeria, 1999, Section 246(3) thereof, the Court of Appeal was the final court for determination of governorship election petitions. The petition against Wammako has earned the notoriety of being the first case in which the Supreme Court would hear and grant an application in a matter in which it has no jurisdiction. This is because, while matters before the Supreme Court come by original jurisdiction or appellate jurisdiction, the Sokoto State election petition did not arise from either process as the apex court did not have jurisdiction at all to hear the matter, whether original or appellant as all appeals in governorship petitions stopped at the Court of Appeal. It was also the first case decided by the Supreme Court in which it has no record of appeal or jurisdiction and in which it dismissed appeals pending before a lower court.

It was also later discovered that the petition the CJN claimed he received and which formed the basis of his contention that the judgment had leaked before it was to be delivered, were written a week after Katsina-Alu summoned the PCA to his office, according to the date on the document.

A top government official told this magazine last week that about the time that Katsina-Alu told Salami to drop the judgment for Wammako, the CJN had also told Jonathan, then acting President, to call Salami to order. It was learnt that Jonathan actually called Salami to the Akinola Aguda House, with a view to asking him to help Wammako, despite all the problems with the case. Our sources revealed that Salami heeded the President’s call for a meeting at his former abode. But according to the source, Salami had confided in a top government official as he was on his way to meet the President about the pressure that was being brought on him. He said he had suspicions that the acting President may also want to add to the pressure. TheNEWS learnt that Salami told the senior government official that if the acting President should also ask him to throw away the case, he would flatly rebuff him and go back to his office to resign, publicly. It was gathered that words got to Jonathan not to place any such demand before Salami. Though the meeting between the President and Salami held, Jonathan did not bring up the issue. The meeting ended up being a mere exchange of banters, with Salami, wondering why Jonathan merely called him to pour accolades on the Appeal Court judges, who at that time had given landmark judgments on many state petitions, mostly to the discomfort of the ruling PDP.

Nevertheless, the CJN, by encouraging Jonathan’s intervention, succeeded in planting the idea in the President’s mind that Salami is against the PDP. This was further reinforced when the panels constituted by Salami late last year delivered judgments in respect of the appeals in the disputed governorship elections in Ekiti and Osun states, which were in favour of ACN and led to the removal of PDP governors from the two states. The PDP, it was gathered, has never forgiven Salami as members believed he was sympathetic to the cause of ACN.

Last March at a rally in Ilaro, Ogun State, former President Olusegun Obasanjo, who is also the Chairman of Board of Trustees of PDP, accused the ACN of “stealing electoral victories by changing election results through judicial rigging”. It was gathered that with this mindset, PDP members, since last year, started working not only to ensure that Salami is removed from his position, but to also reduce the influence of the Court of Appeal over election petitions. The desperation to reduce the influence of the court led by Salami, it was learnt, for instance, was the chief motivation for the amendment of the 1999 Constitution to make governorship appeals to reach the Supreme Court, which was carried out by the National Assembly last year. The belief is that the PDP will never lose at this final court, with Katsina-Alu or his successor at the helm.

The second dimension of the conspiracy against Salami by the PDP was the decision to move him to the Supreme Court, a plot scripted by Katsina-Alu last February at the meeting of Federal Judicial Service Commission, FJSC. The CJN had told members of the FJSC of his intention to increase the number of justices at the Supreme Court on 2 February, at a meeting where Salami was not present. He subsequently announced that the PCA is one of the new justices to be promoted to the Supreme Court. Katsina Alu was said to have told members present not to reveal the issue, as a proposal would be forwarded to the President. But the PCA nevertheless got to hear about the plan. In a letter he wrote to the CJN on 4 February, 2011, the PCA declined the appointment to Supreme Court. But he also, with benefits of hindsight, gave a detailed account of the carefully woven intrigue that led to his proposed promotion. According to him, Katsina-Alu had taken advantage of his inability to attend the meeting of the FJSC of 1 February, 2011, to hatch the plot to take him away as the head of the Court of Appeal. The PCA said he informed the CJN that he will not be present at the meeting and that the CJN had assured him that nothing significant will be discussed at the meeting.

Katsina-Alu, according to Salami, however, immediately spotted an opportunity to remove him from the Appeal Court, taking advantage of his absence from the meeting. He alleged that the CJN first shifted the meeting of the FJSC to 2 February. Salami also said the CJN proceeded to hold a secret meeting with Mohammed Bello Adoke, the Attorney-General of the Federation and Minister of Justice, before the beginning of the FJSC meeting. He said it was at this meeting that the plan to promote him to the Supreme Court as a way of removing him as the PCA was perfected. Salami said the CJN subsequently informed other members of FJSC of his resolve to nominate him as a Justice of the Supreme Court, as part of his planned increase in the number of justices in the apex court, but asked them to keep the deliberations secret.

In the affidavit he personally deposed to in support of the suit he filed to stop his promotion to the apex Court, the PCA affirmed that the CJN’s bid to promote him to the apex court was to “facilitate him (CJN) to plant his own stooge as the President of the Court of Appeal to do his biddings as and when needed”. The promotion would have resulted in Salami vacating the second highest position on the Nigerian bench to become one of the about 16 Justices of the Supreme Court. Many members of the Bar and retired justices had also faulted the promotion, which they described as fishy as it has no precedent in the Nigerian judicial history. “To ask Salami to leave his position as president of the Court of Appeal is the worst precedent. This is unprecedented and grossly dishonest for anyone to say that he is promoting Salami to the Supreme Court”, retired Justice Mustapha Akanbi, himself, a former President of the Court of Appeal, told journalists. He added that Salami will lose his seniority as he would be made to queue behind some of the justices who were promoted to Supreme Court under him. There was also the argument that the North Central where Salami hails from, as was pointed out by some lawyers, already has three Justices in Supreme Court, and had thus filled its quota. It was contended that if there should be any promotion or new appointments into the apex court, it should be from the ranks of judges from the South West and the South East, the two regions with vacant slots at the Supreme Court at the time. Justice Salami also filed a suit in which he repeated the allegations of the CJN’s directive to him in the Sokoto petition and his refusal, which he said was at the root of the move to take him out of the Appeal Court. Salami was persuaded to withdraw the suit with the intervention of the NJC, which declared at the end of its emergency meeting held on 9 February, that there are no valid reasons for the CJN to promote him to the apex court and insisted that the status quo remain.

But as things turned out, the conspirators were merely playing for time, to organise properly and deal a crushing blow to Salami.

Attempts by Adoke to justify Jonathan’s action were met with boos and jeers at the NBA conference in Port Harcourt last week. Adoke, Katsina-Alu’s sole nominee to Jonathan’s cabinet, many lawyers argued, should have advised his boss against going ahead with the recommendations of the NJC, given that the assertions in the affidavits were never denied by him or the CJN.

Salami may be in the valley for now, but Katsina-Alu, who bowed out as CJN, has also ended his tenure in the judiciary, in a hail of controversy, the same way he began when he was sworn in by his predecessor in office in 2009.

—Oluokun Ayoride/Abuja

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