A fresh constitutional controversy has emerged in Imo State over the appointment of a substantive Chief Judge, following disagreements between the National Judicial Council (NJC) and the State Judicial Service Commission (JSC) over the boundaries of their respective powers in the judicial appointment process.
The controversy has reignited debate over judicial independence, federalism and the extent to which the NJC can exercise oversight over the appointment of state judicial officers without violating the constitutional autonomy of state institutions.
In an article titled “A Federalism Friction Point: The Legal Boundaries of Shortlisting a State Chief Judge,” Asiwaju Kunle Kalejaye, SAN, examined the constitutional issues surrounding the dispute, arguing that the NJC has a critical responsibility to protect the judiciary from political interference and ensure compliance with established judicial conventions.
Kalejaye noted that the NJC was established under Section 153(1) and the Third Schedule to the 1999 Constitution, as amended, to safeguard judicial independence and prevent undue executive influence in the administration of the judiciary.
According to him, the Council serves as a constitutional safeguard against political manipulation, particularly in the appointment and discipline of judicial officers.
The dispute reportedly followed the retirement of Justice T. E. Chukwuemeka Chikeka, after which Imo State authorities initially bypassed seniority and appointed Justice Theophilus Nzeukwu, who was ranked fourth, as Acting Chief Judge.
The NJC subsequently rejected the appointment, citing Section 271(4) of the Constitution and the established convention of judicial seniority.
The state’s most senior judge, Justice Ijeoma Agugua, was eventually sworn in as Acting Chief Judge. However, her reported omission from the shortlist subsequently prepared by the State Judicial Service Commission for the substantive appointment further heightened the controversy.
At the centre of the disagreement is the interpretation of Sections 202 and 271 of the Constitution.
While Section 271 provides the constitutional framework for appointing a state Chief Judge through the Governor, acting on the recommendation of the NJC from candidates presented through the State JSC, Section 202 guarantees the independence of the State Judicial Service Commission from external direction or control.
Imo State Attorney-General, Paul Obinatu, reportedly relies on Section 202 and the Supreme Court decision in Attorney-General of the Federation v. Attorney-General of Abia State (2024) to argue that the State JSC has the constitutional autonomy to determine its shortlist without external interference.
Under this position, the NJC may accept or reject recommendations submitted to it but cannot dictate the names to be included in the initial nomination process.
However, Kalejaye argued that this interpretation fails to adequately account for the constitutional relationship between the two institutions.
Citing the Supreme Court’s decision in Hon. Justice Raliat Elelu-Habeeb & Anor v. Attorney-General of the Federation & Ors (2012), he maintained that Sections 202 and 271 must be interpreted together as part of a coordinated constitutional process.
He argued that the autonomy granted to the State JSC does not eliminate the NJC’s constitutional oversight responsibilities or justify actions capable of undermining established judicial conventions.
The legal practitioner also referenced Federal Republic of Nigeria v. Hon. Justice Hyeladzira Ajiya Nganjiwa (2022) and Kayode Bamisile v. National Judicial Council & Ors (2012) in highlighting the importance of the NJC’s role in protecting judicial integrity and ensuring that constitutional procedures are respected.
Kalejaye further observed that similar disagreements over the appointment of substantive Chief Judges had occurred in Cross River, Abia, Kebbi and Gombe states, where disagreements over seniority and judicial appointments reportedly resulted in prolonged institutional standoffs.
He argued that the NJC’s refusal to endorse appointments that disregard established judicial conventions reinforces the importance of protecting the judiciary from executive interference.
Quoting Senior Advocate of Nigeria, Okutepa, Kalejaye stressed that the office of Chief Judge is a position of public trust and that its occupant must emerge through a process capable of commanding confidence in the independence, integrity and fairness of the judiciary.
He warned that bypassing senior judicial officers without clearly documented and verifiable reasons could create perceptions of favouritism, political patronage and executive manipulation.
He also invoked the decision in National Judicial Council & Ors v. Hon. Mr. Justice C.P.N. Senlong & Ors (2010), particularly the judicial observation attributed to Mary Peter-Odili, JCA, as she then was, that the powers exercisable by the NJC must not be frustrated by anyone, regardless of their position or authority.
Kalejaye maintained that resolving the Imo State controversy requires a careful balance between the constitutional independence of the State JSC and the oversight responsibilities of the NJC.
He concluded that judicial independence cannot be secured merely through constitutional provisions but must also be demonstrated through strict adherence to due process, established conventions and transparent appointment procedures.
