Wednesday, 11 March 2020

C'River chief judge saga, former attorney general advises Ayade, Eteng

As the Cross River State Chief judge saga continues to drag on in the hearts and lips of citizens with many speaking against it, while some seem to be In support of the inglorious actions of the Cross River State House of Assembly, a lawyer and former Attorney General of the state has taken his stands even as he dishes out some sets of advises to the governor and the speaker of the Assembly. 

Eyo Ekpo who was also the governorship candidate of the Social Democratic Party in the state during the recently conducted gubernatorial elections, expressed his thoughts via his social media handle on Facebook. 

He wrote thus: 

A Word of Advice 

Are Governor Ben Ayade, Speaker Eteng William Jones, Commissioner Asu Okay, and all those other who undertook or defended the sad and shameful events of last Monday pleased that the demon of ethnicity that their actions have resurrected is now producing consequences that none of them probably saw coming?

The State Government now says that ethnicity is not the motivation behind the spectacle we all witnessed on Monday, 2nd March on the floor of the State House of Assembly. This is not very late, it actually worsens the matter because the State Government is using its mass media machinery to launch scurrilous attacks against the character and good record of Justice Akon Ikpeme. By so doing, they have strayed into a legal minefield from which they cannot emerge unscathed. Suffice to say that each of the four claims they made against Justice Ikpeme, being criminal in nature, the State Government has unwittingly and unwisely placed on itself the heavy burden of proving these allegations beyond a reasonable doubt.

The legal position is clear. Constitutional powers cannot be exercised capriciously. They are bound by adherence to the rules of natural justice that cherish fairness and transparency more than anything else. Recall that Justice Akon Ikpeme was present at the House of Assembly all through the proceedings of 2nd March. If indeed the alternative report of the Vice-Chairman of the House Committee on Judiciary, Chris Njar, contained those four allegations and they were based on solid facts, why was Justice Ikpeme not called upon to answer them on the spot? The answer is simple: they were all working to an answer, they had to move quickly and, above all, they knew that the allegations were untrue.

The Governor wasted no time in swearing-in his Acting Chief Judge. Mr. Maurice Eneji knows very well that he has no business being a Chief Judge, acting or substantive, at this point in time. Governor Ben Ayade is a legal practitioner and he can read, appreciate and construe the letter and spirit the 1999 Constitution. I will also presume that he understands, at least theoretically, the concept of separation of powers in constitutional law, the basic principles underpinning the proper exercise of constitutional powers. I also believe that he is aware of both Section 271 of the 1999 Constitution, which deals with the appointment of judges and chief judges of a State; Section 21, Third Schedule, Part I of the Constitution, which sets out the powers of the National Judicial Council; and Section 6, Third Schedule, Part II of the Constitution, which sets out the powers of the State Judicial Service Commission. 

Governor Ayade would surely appreciate that the 1999 Constitution requires that the appointment of both an acting and a substantive Chief Judge MUST have the input of the NJC at all times, and no Governor has an exclusive right to appoint an Acting Chief Judge. It is apparent that the Governor and his team in the House of Assembly made some serious but very elementary errors that exposed their lack of good faith and clear conscience in this matter. First, the Governor, as is typical of him, telegraphed his intent weeks before by publicly saying at various fora that he wanted the next CJ after emeritus CJ, Justice Michael Edem, to come from northern Cross River State because that part of Cross River had never had a if the office of Chief Judge is within his gift to give away as he fancies.

In parenthesis, let me debunk the wicked lie making the rounds that Governor Donald Duke established the precedent for this by overriding the nomination of Justice Evaristus Uke from Obudu to force the position of CJ in favor of his "candidate", Justice Dorothy Eyamba-Idem, who is Efik. This is not true. Justice Eyamba-Idem was at all times senior, both at the Bar and on the Bench, to Justice Uke and there was never any question of Donald Duke subverting the NJC process in 2001 to force in any candidate of his. It simply did not happen and it is dishonorable for anyone to peddle this stupid falsehood and use it as justification for oppressing a citizen of this State who deserves to be elevated in her own right to the office of Chief Judge.

Back to the substance of the matter, second, the House of Assembly received the Governor's letter seeking Justice Ikpeme's confirmation on 9th January but did not treat it until 25th February when it was sent to the Judiciary Committee whose report was tabled before the full House on Monday, 2nd March, the day on which Justice Ikpeme's appointment as Acting CJ was to lapse. We all know that the House had been treating other far less urgent and important communication from the Governor with lightning speed - unjustified loan requests, withdrawals from the State Reserve Fund without due process, permission to appoint so many SAs with odd titles and no job description. Yet, following the retirement of Justice Michael Edem in November 2019, the Speaker was so uninterested in acting to ensure that a new CJ was formally considered for an appointment ASAP that he left this matter to the very last possible moment. This deliberate, contrived lethargy created the Governor's self-imposed urgency to fill in the vacuum artificially created by the deliberate delay of the House to consider Justice Ikpeme's nomination.

Third, the Governor failed to thoroughly read the three constitutional provisions I referred to earlier - Section 271 of the 1999 Constitution, which deals with the appointment of judges and chief judges of the States; Section 21, Third Schedule, Part I of the Constitution, which sets out the powers of the National Judicial Council; and Section 6, Third Schedule, Part II of the Constitution, which sets out the powers of the State Judicial Service Commission. If he had, he would have recognized that in such situations, a Governor acting in good faith and with no ulterior motives would call in his AG and seek a range of opinions to discuss and work out a solution. That solution, I believe, reading these constitutional provisions would have been for the Governor to return the matter to the NJC and seek its advice on what to do next about a substantive CJ and who the Acting CJ should be.

So, what to do now? Certainly, it is not too late to make amends. Peace can be restored, the heavy burden of the State's newfound pariah status can be taken off and we can start healing the deep wounds that the actions and utterances Team Ayade have inflicted on this State. All we need now is simply focus on doing the right thing. 

My advice, offered as two sets of alternatives, for whatever they are worth, are as follows:
1. Governor, please stop going around Abuja or sending emissaries trying to lobby individual members the NJC to accept what you have done. It only makes matters worse and reinforces the belief that you acted deliberately to subvert the NJC. The NJC cannot be induced into accepting the action of the House of Assembly as a fait accompli and is unlikely to withdraw its letter nominating Justice Ikpeme. 
2. Instead, Your Excellency may wish to ask Mr. Speaker and the House of Assembly to reopen and reconsider the matter. This is fully within the power of the House of Assembly to do. If Hon. Chris Najar, Vice-Chairman House Committee on Judiciary, or anyone else has any evidence of the allegations backing his rejection, this would be their opportunity to bring such evidence before the House of Assembly and place it on the record.

3. The Governor should then forward all these "facts" to the NJC. I am sure that the NJC will review them and if well-founded, it will ask for the next most senior judge after Justice Ikpeme to be put forward.


4. If, as many are convinced, the House of Assembly has nothing but mere allegations without proof, then it should act honorably and own up to the fact that there is no proof of the wild allegations made against Justice Ikpeme on 2nd March.

5. Accordingly, Your Excellency and Mr. Speaker, please save the State and its citizens further embarrassment, table this matter again and ensure that a resolution is passed calling on you (Governor Ayade) to kindly and immediately swear-in Justice Akon Ikpeme as the Chief Judge of Cross River State.

At this point, Your Excellency, Governor Ayade, and Mr. Speaker, Jones Eteng Williams, the ball is back in your joint court to do the needful and save the State further agony over this totally avoidable disaster.