The CJN's refusal to swear in Abia State's nominee to the Court of Appeal on account of her state of origin reopens critical nationality questions that beg for urgent answers, writes Vincent Obia
Her nomination was spectacular, and her confirmation seamless. But the Chief Justice of Nigeria, Justice Aloma Mukhtar, is having a difficult time convincing the country that her decision to put on hold the inauguration of the Abia State nominee to the Court of Appeal, Justice Ifeoma Jumbo-Ofo, was based on sound judgment.
In her first taste of open controversy since being sworn in on July 16 as Nigeria's first female CJN, Mukhtar last Monday refused to swear in Jumbo-Ofo, who was recently elevated to the Court of Appeal, allegedly, owing to a petition over her state of origin. The judge was born in Anambra State but is married to a man from Abia State. She had served in the Abia State judiciary for the last 14 years and was now nominated by the state to fill its slot in the Court of Appeal. Mukthar failed to swear in Jumbo-Ofo among 12 other justices of the Court of Appeal recently appointed by President Goodluck Jonathan on the recommendation of the National Judicial Council, which is presided over by the CJN. This was in spite of the intervention of the Abia State Governor Theodore Orji who confirmed that the judge was validly nominated.
There has been a wide swathe of public opinion against the discrimination meted out to the Abia State nominee. Lawyers, human rights activists, and legislators have risen to her defence and to the condemnation of the CJN's conduct. Many are agreed that the alleged protest against Jumbo-Ofo's nomination lacked merit and should have been discountenanced since the Nigerian constitution prohibits discrimination against citizens on the basis of birth, sex, religion or ethnicity.
Section 42 of the 1999 Constitution, as amended, deals with the right of Nigerians to freedom from discrimination. It states in sub-section 1, "A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person -
1. Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
2. Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions."
Section 42 (2) states that, "No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth."
In practice, however, there seems to be no clear-cut definition of the position of married women in relation to the provisions on place of origin - though, it is increasingly commonplace for women to adopt their husbands' places of origin. In some cases, too, women have adopted both their birth states and their husbands' as places of origin, creating complications at times.
The Federal Character Commission Act, for instance, provides that a married woman shall continue to claim her state of origin for the purpose of implementation of the federal character principle at the national level. Experts have also noted the existence of a policy that says all female judges must be from their states of origin and occupy positions assigned to their states of origin.
There is a sense in which it can, then, be argued that Mukhtar in refusing to swear in Jumbo-Ofo was merely applying the rule.
But beneath the legal and moral sentimentalisms that have seemed to dominate reactions to the Jumbo-Ofo saga lie critical national questions that require urgent answers. Most important, perhaps, is the indigeneship factor.
The protests against Jumbo-Ofo were based on her indigeneship of Anambra State and, of course, non-indigeneship of Abia State, despite her marriage and services to Abia State. This raises the question as to who an indigene of a particular place in Nigeria is. Both in law and in practice, an indigene in Nigeria's traditional lexicon refers to the original settlers of a place. Section 25 of the constitution defines a citizen of Nigeria by birth as, "Every person born in Nigeria before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria."
Citizenship in Nigeria is tied to indigenous communities owned by indigenes - original settlers. This is a throwback to the making of Nigeria, a country of diverse peoples brought together by British colonialism. But the indigeneship issue is today one of the biggest sources of communal tension in the country. Finding an acceptable solution to the problem has been one of the trickiest aspects of Nigeria's constitution amendment processes.
Addressing journalists in Quebec, Canada, on October 22, after the opening of the 127 Inter-Parliamentary Union (IPU) Assembly, with the theme: "Citizenship, identity, linguistic and cultural diversity in a globalised world," Senate President David Mark said, "One of the issues we've been discussing in constitution amendment is shift from state of origin to state of residence because it is an important issue.
"You are resident in a place for 20 years and still, they don't take you as part and parcel of that place. I think it's a difficult task but in my candid opinion, if we have an open mind and we approach it from a nationalist perspective, rather than a small, clannish perspective (we shall succeed).
"Let's forget the business of state of origin and go to state of residence. Once you are resident in a place and you perform your civic responsibilities for the period, there's no reason why you shouldn't benefit, provided of course you don't claim dual residency."
Mark, however, acknowledged the abuses and difficulties that might come out of this new arrangement, like the claim of dual or multiple home states by some Nigerians. "We can't have that. Once you take a particular area, you should just be a part and parcel of that particular state."
Under the country's electoral laws, a person who has lived in a place for 20 years can vote and be voted for in the area.
But can a Nigerian ever forget his native land and take up the permanent nativity of another part of the country? And if he does, would he be willingly accepted by his new community?
These are difficult questions that cannot be answered via constitution amendment. Friendship cannot be forced or legislated, it must evolve naturally. That is why many Nigerians have suggested that it is imperative to hold a conference of the indigenous communities that make up the country to find a lasting solution to the crucial questions of nationhood.
Some have suggested a sovereign national conference. But whatever name it may be called, it does seem Nigerians must sit down - outside the murky arena of partisan politics - to tell themselves the unpleasant but true basic facts about their existence. The Jumbo-Ofo fate is yet another significant reminder of the urgency of such meeting.