This Day (Lagos)

14 November 2012

Nigeria: For the Nigerian Woman, Married You Lose, Unmarried You Lose

On Monday, 5 November 2012, Chief Justice Aloma Mukhtar was scheduled to administer oaths of office to 12 newly appointed Justices of Nigeria's Court of Appeal at the premises of the Supreme Court in Abuja. All 12 had scaled through the rigorous processes preceding appointment and had received their letters of appointment from President Goodluck Jonathan.

To enable them fulfill the administrative processes preceding swearing in, including the obligatory assets declaration process, the office of the Chief Justice required newly appointed Justices to arrive in Abuja the previous week. They all did. On the afternoon of Friday, 2 November, the Secretary to the Chief Justice telephoned one of the newly appointed Justices, Honourable Justice Ifeoma Jombo-Ofor, to request her to see the Chief Justice urgently. Justice Jombo-Ofor complied.

At the Supreme Court, Justice Jombo-Ofor proceeded to the Chambers of the Chief Justice. Neither party has yet issued a public record of what they discussed. Sources at the Supreme Court authoritatively report that at the meeting, the Chief Justice briefly interrogated Justice Jombo-Ofor as to her "state of origin" and accused her of not being an indigene of the State she claimed before dismissing her summarily. What is clear is that following her brief encounter with the Chief Justice, Justice Jombo-Ofor was seen leaving the premises of the Supreme Court in severe distress.

On Saturday, 3 November, the Chief Registrar of the Supreme Court instructed her through a telephone call not to attend or present herself for the swearing in on 5 November. All these developments took place orally.

On Monday, 5 November, the Chief Justice administered the oath on 11 Justices instead of 12. Chief Justice Mukhtar had administratively stepped down Justice Jombo-Ofor from among the Justices to be sworn in. It emerged that Justice Jombo-Ofor was not sworn in because, in the opinion of the Chief Justice, she was not an "indigene" of the State whose origins she claimed in her appointment papers, Abia State.

In one sentence, the decision of the Chief Justice in this matter pertaining to Justice Jombo-Ofor's swearing in is flawed in process, wrong in law and subversive of our constitutional values of equality among citizens. In saying this, it should be borne in mind that in acting the way she did, the Chief Justice did not exercise judicial powers as a court but acted administratively. Her decision can, therefore, and must be second guessed.

Let us begin with the process. The administration of oath of office is the last, confirmatory stage in the prolonged process of judicial appointments. With respect to appointments to the Court of Appeal, this process begins with the nomination of candidates by the respective heads of court around the country. In Justice Jombo-Ofor's case, the Chief Judge of Abia State would have consented to her appointment. Thereafter, the security services would usually investigate candidates and prepare dossiers on them. The nominations and dossiers would be considered substantively by the Federal Judicial Service Commission (FJSC) chaired by the Chief Justice of the Federation, which weeds out the candidates. The FJSC then reports to the National Judicial Council (NJC), also chaired by the Chief Justice, which decides on which candidates to recommend to the President as the appointing authority for nomination.

Based on the nominations received from the NJC, the President then exercises the power to point under Section 238(2) of the Constitution to formally execute the instruments of appointment and to issue and transmit letters of appointment to the successful candidates.

This process is long and arduous. It involves all the branches of our government at the highest levels and also all the institutions of State government in the most intricate advertisement of constitutional checks and balances possible. The Chief Justice, first as the Chair of the FJSC and then as Chair of the NJC, is the dominant actor in this process. No one can scale through to appointment if the Chief Justice objects at either of these levels. But because of this process also, she cannot be heard to object at the stage of swearing in because to do so at that stage would impugn the integrity of the judicial appointment process or strongly imply that Chief Justice has been delinquent in the pre-appointment due diligence.

This is why the decision to refuse to administer the oath on Justice Jombo-Ofor is also wrong in law. Having been involved institutionally in the process of appointment, the Chief Justice should either be recused from any post-appointment objections or, alternatively, estopped from doing so. In any case, at this point in the process, the Chief Justice is devoid of the legal power to countermand the appointing authority that she is not. Once the instrument of appointment is executed, Justice Jombo-Ofor can only cease to be a Justice of the Court of Appeal if she is removed through an established judicial disciplinary process, impeached as provided in the Constitution or her elevation is nullified by a court of competent jurisdiction. None of these happened here. Surely, a matter as serious as this cannot be handled orally or by a sequence of cellular telephone calls.

The flaws in process and want of legality reinforce the damage that this entire episode does to our constitutional values. It denies women, especially married women, equality of opportunity contrary to our Constitution. In addition to being a judge, Ifeoma Jombo-Ofor is a 58-year old married grand-mother. The woman who later became Mrs. Jombo-Ofor was born in the former Eastern Region of Nigeria in 1954. By the time she got married 33 years ago in 1979, her parental origins had become Anambra State but her husband was from Imo. In 1981, she was appointed a Magistrate in Anambra State. In 1991, when Abia State was created, her Husband's State became Abia. In 1998, the Abia State Government appointed Ifeoma Jombo-Ofor a Judge of the High Court of Abia State. She has served in this capacity since then.

In any serious clime, this story of her exclusion from judicial oath of office would be laughable. The process was ham-handed to say the least and it surely counts as tragic that we have got to a point where the defining issue in judicial appointment is not whether the candidate is up to the difficult job of being a judge but where they come from. What the Chief Justice suggests by her action is that there can be no potability of origins for the Nigerian woman.

Yet in 1985, the Supreme Court had decided in OLOWU V. OLOWU [1985] 12 S.C. 84, that there is in fact such potability. For married women, this is important. Every married woman belongs to the place where she is born and also to the place into which she is married. This dual identity is not opportunistic. It is the reality of every married woman. Instead of affirming this fact, the Chief Justice took an administrative decision whose immediate impact is to diminish public service opportunities open to married women in Nigeria by rendering them effectively stateless. For this, Nigerians are entitled to take her to task.

Ironically, 20 years ago, the same NJC's predecessor, the Advisory Judicial Committee (AJC), rejected the appointment of a female judge from then Cross-River State because she was an un-married mother. So as a woman, you lose professional preferment, whether married or un-married. Men suffer no such double jeopardies.

The treatment of Justice Jombo-Ofor is disgraceful and beneath the dignity of the judicial branch. On 7 November, the Senate took the unprecedented step of adopting a resolution condemning the decision of the Chief Justice and asking her to swear in Justice Jombo-Ofor. They are right. In order to rescue the integrity of our judicial institutions and our constitutional values, the Chief Justice should comply. To do otherwise would compound illegality with a travesty.

Odinkalu chairs the Council of the National Human Rights Commission

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