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OPINION: The Hypocrisy And Unconstitutionality Of The NBA President, The NBA – Osi Okponobi

The Hypocrisy And Unconstitutionality Of The NBA President, The NBA
Posted: August 29, 2011 – 15:34

By Osi Okponobi

As a concerned Nigerian and a Lawyer, I believe it is imperative and a call of duty to pen this article and defend constitutionalism, the Legal profession and the Judiciary.  It is also imperative for me to dispel the misinformation, misconception, rumours, wrong and biased information that have been making the rounds or that have been peddled about the place, which motive(s) is/are quite suspect.

Permit me to also say that no one can justify breaking or breaching the provisions of the constitution, while pretending to be solving a constitutional issue or problem or crisis. 

How can anyone justify committing a crime in order to solve another crime?  Two wrongs can NEVER make or equal a right!   So I was taught, growing up.  I have always believed in this and imbibed this principle, belief or philosophy, if I may call it that.  You cannot justify committing one impunity while pretending to be resolving another. 

I am referring to the happenings regarding the so called ‘crimes’ that the NJC is perceived or believed in the eyes of many, but mainly out of ignorance, to have committed through the SUSPENSION (not REMOVAL) of Justice Ayo Salami, who was found guilty of misconduct, following the findings and the recommendation of an Investigative panel. 

Having worked in senior level management positions in the UK, I am versed in the issues of Employment Law and employment relations.   I presently offer Human resources consultancy, amongst many other things that I am currently involved in.   

Under Employment Law and good employment Practice, the NJC, in my view, has acted properly and followed well established and international standards of good practice in dealing with the affairs of Justice Ayo Salami. 

The normal course of action and the good practice to follow when investigating a complaint of misconduct, of this nature, is to first of all SUSPEND parties to the complaint or involved in the dispute. 

Usually it is the junior staff that is normally suspended when there is a dispute between a junior staff and his/her senior or superior.  Firstly, from the point of view of protecting the junior staff from harassment, intimidation, bullying or victimisation by the senior staff.   And secondly, because the senior colleague usually has more responsibilities than the junior one, it is more expedient for the purpose of the business, and for the effective and proper functioning of the business, to sacrifice the junior staff this way than a senior staff, who may be required, because of his office and portfolio, to perform certain functions and high level roles. 

In the case of a CEO, if he is suspended, the organisation is likely to suffer more and be without a mouthpiece when it comes to being represented at high level meetings or external meetings or taking strategic decisions to move the Organisation forward.   The CEO is usually the face of the business or Organisation.

Bringing it home, the CJN performs more constitutional functions by virtue of his office than the PCA.  The constitution, for instance, provides for more high level constitutional functions for the CJN than the PCA.  Therefore, for the sake of expediency, it would have been safer to SUSPEND (with pay, of course) the PCA than to suspend the CJN.  

But then again, what is wrong with SUSPENSION or SUSPENDING a worker?  A SUSPENSION is not really such a bad thing.  It is one of those DISCIPLINARY CONTROLS exercised by an Employer to arrest a situation or to calm things down.  Where, for instance, there is a fight between a CEO and a manager, which is capable of disrupting the effective running of the business of the organisation, suspending the manager, while investigation continues is not such a bad thing, and it is always an option open to an Employer. 

As I often used to say to my colleagues (subordinates or my staff, as we say in Nigeria) back then, or to clients, I do not mind being SUSPENDED, as long as it was with PAY.   What a SUSPENSION really means is a directive to ‘GO AND COOL OFF, BUT WE WILL STILL PAY YOU FOR DOING NOTHING’. 

The only time I have an issue with a SUSPENSION is when it is WITHOUT PAY.  That is the only time I will expect anybody to be concerned about a SUSPENSION.  Otherwise, take the time off and see the period as additional Leave or holiday and time to raise your feet up and enjoy the sun or the chill.

Now to review the actions of the NJC that has been overwhelmingly criticised, and placing it in the context of Good employment practice, I fail to see what and where the NJC has done wrong.  In accordance with good practice, the NJC empanelled an investigative panel to look into the allegations and counter-allegations and complaint of unethical conduct.  The only person in my view that did not publicly fly any allegation was the CJN.  Justice Ayo Salami fired the first salvo by complaining about the CJN and his ‘Greek gift’ to ‘promote’ him (an issue that was still inchoate and had not been done at the time), and alleged an underhand motive.  He did not stop at that, he went public with it.  As if that was not enough, he also went to court. 

Then also came the duo of the former Governors of EKITI State and OSUN state, who also alleged unethical conduct against Justice Ayo Salami and a miscarriage of Justice by his breach of a fundamental principle of Natural Justice and fair hearing.  Justice Salami was alleged to have been engaging in nocturnal telephone exchanges and communications with the ACN party stalwarts.  

Telephone Call logs were obtained by the Governors to prove their case, which Justice Salami did not deny, but pleaded Constitutional protection for his right to protection of his private communication and privacy.  In effect, he was being accused of being a party to a case, in which he is the Judge and the head.  He was accused of breaching the rule of natural Justice of ‘Nemo judex in causa sua’ (which means no one is allowed to be a Judge in his own case, or in which he has an interest.  Or, better put, in a matter that affects him, his relatives, friends and allies).

The NJC was fair and open minded (to a fault, in my view) about the allegations and complaints, otherwise, it would have SUSPENDED Justice SALAMI to prevent future MISCARRIAGE OF JUSTICE and BIAS, as the former Governors were alleging.   Justice SALAMI might also have been SUSPENDED to prevent any further HARASSMENT or VICTIMISATION to him by the CJN.  As an Employer HAS A DUTY OF CARE towards Employees and to ENSURE THEIR HEALTH AND SAFETY.  HARASSMENT, INTIMIDATION, BULLYING, VICTIMISATION are capable of damaging the HEALTH AND SAFETY OF THE VICTIM, IF NOT PROPERLY MANAGED AND DEALTH WITH. 
The CJN could also have been SUSPENDED by the NJC so as not to interfere with or influence the investigations. 

This was, however, not necessary, as the panel that investigated the complaints was an independent panel and not the NJC, which the CJN headed.  Although the NJC empowered the Panel to investigate the allegations, the panel need not have necessarily returned a verdict of guilt against any of the parties.   Furthermore, throughout the course of the investigation and meetings or deliberations of the NJC, the CJN was excused or excluded and, in fact, his headship of the NJC was taken away from him and seized by his Deputy, as the acting Chairman.  Lest I digress here, the bottom line is that the NJC did not initially SUSPEND any of the parties, even though it had good grounds or reasons to do so, either for the sake of protecting the health and safety of parties or to preserve the RES.
Again, in accordance with good practice, after the Investigative findings, the panel produced its report to the NJC that empanelled it in the first place.  It was left for the NJC to do as it pleased with respect to the findings. 

And as it is done anywhere in the world, the NJC met over the report and empanelled another committee (this time its own committee) to review the findings and make recommendations.    This it completed on the 9th of August 2011 and the recommendations are well known to almost everybody in Nigeria, including the meat Seller or Cattle-Rearer, who may never have opened a Newspaper ever to read.   

One of the NJC’s recommendation was for Justice Salami to apologise to the CJN within 7 days (and in their usual style bury the findings of misconduct against Justice Salami and settle it in a paddy-paddy way).   This is the only blame, in my view, to the NJC.  You cannot settle findings of gross misconduct, Unethical conduct and miscarriage of Justice, Lying and Perjury in a paddy-paddy manner.  No way!  That would have been a subversion of the constitution and the Laws of Nigeria.

But thank God that Justice Ayo Salami, in his ‘wisdom’, refused.  He did not want the matter settled in a paddy-paddy way.   He later went to court.  The NJC on the other hand decided to do what it should have done in the first place by exercising its powers in S.21 (g) of Part 1 of the Third Schedule and DISMISSED JUSTICE SALAMI OUTRIGHTLY FOR MISCONDUCT.  Or, perhaps, it did not do this, maybe because the NJC is not even fully aware of its inherent powers under the constitution to DISMISS erring MEMBERS under S.21 (g).  

The NJC, again, in another display of ‘paddy-paddyship’ decided against dismissing Justice Salami, but chose instead to recommend his removal by the president in accordance with S.292(1) of the same 1999 Constitution.  

And faced with the dilemma and the problem of the fate of Justice Salami, whom they have recommended his removal, to continue to function as the PCA, despite the findings of misconduct against him, I guess they erroneously thought they had no choice but to recommend his SUSPENSION pending when the President secured the APPROVAL of two-thirds majority of the Senate to REMOVE him, despite the provisions of S.21 (g) of Part 1 of the Third Schedule, which allows them to DISMISS Justice Salami.

The President of the country so acted and confirmed the SUSPENSION of Justice Salami, as recommended by the HIGHEST JUDICIAL BODY IN THE COUNTRY.   The President further put a CAVEAT, which is ‘UNTIL HE RESOLVES HIS ISSUES IN COURT’.   In other words, the President is more or less HOLDING OFF seeking the APPROVAL of the SENATE to REMOVE Justice Salami until he has been availed the opportunity of having his case heard by a court.   What that also mean is that Justice Salami remains the PCA, although SUSPENDED, and for as long as the situation remains like this.   And until the needless court action, which in my view is bound to fail, is concluded.  

S.158 of the same Constitution provides a shield for the NJC (and the other Public bodies) and gives them some kind of immunity from having the powers to exercise DISCIPLINARY CONTROL over members questioned or ‘subject to the directions or control of any authority or person’.   While S.160 provides that the NJC “may by rules or otherwise regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions.”.

The above are the Administrative, Constitutional and Legal issues involved in this matter or saga.  Then enters the Nigerian Bar Association (NBA) into the fray.  As a foremost Lawyer and the President of the body of Legal Practitioners, the NBA, Mr Joseph Bodunrin Daudu hastily condemned the NJC, rather than seek to EXPLORE, ESPOUSE AND EXPOUND the Law, either through a lively debate, or by writing to the NJC to seek explanation for their actions.  No, not in Nigeria!  Things are not usually done that way.  Everyone believes they know the Law more than the next person. 

And in the usual DICTATORIAL STYLE, which most Nigerians are also known for, albeit, pointing their soiled fingers at others, he came up with his own UNCONSTITUTIONALITY and DRACONIAN ORDERS.  Yes, he ORDERED THAT ANY LAWYER (as all Lawyers are members of the NBA) THAT ATTENDS THE SWEARING-IN CEREMONY OF THE NEW SENIOR ADVOCATES OF NIGERIA (SAN) WOULD FACE SANCTIONS, AND BE ‘OSTRACISED’ OR ‘SUSPENDED’ FROM THE ASSOCIATION.  HELLO!!!  

Did I hear someone say, hmm, DOUBLE SPEAK?  If this is not double speak what then is it?  Only the NBA is allowed to ‘SUSPEND’ members!  What for, if I may ask?  For exercising their constitutional right of FREEDOM OF MOVEMENT, ASSOCIATION and EXPRESSION?  What right has Mr Joseph Bodunrin Daudu or the NBA to OSTRACISE A LAWYER FROM THE ASSOCIATION or SUSPEND or NOT RECOGNISE members?  Yet he and the NBA are crying FOUL and seeking to DENY THE NJC of its CONSTITUTIONAL POWERS TO EXERCISE DISCIPLINARY CONTROL OVER MEMBERS? 

At least there is constitutional backing for the actions of the NJC, but what about the NBA and the NBA President?  Yet he believes he is fighting unconstitutionality!  HOW CAN YOU EVER FIGHT UNCONSTITUTIONALITY WITH UNCONSTITUTIONALITY? 

Therein, lies the contradictions of the NBA.  I hope the NBA can, and would reflect over this poser?  They must redirect themselves to CONSTITUTIONALISM NOW!

About TransformationWatch

TransformationWatch is an online news site founded by Henry Omoregie It is focused on keeping tabs on the Transformation Agenda set out by the Nigerian leadership in the Local, State and Federal Governments. My mission is to observe, analyze and report milestones or slowdowns in promised service delivery in all the facets of governance in Nigeria (2011 and beyond). Readership is open to all Nigerians and friends of Nigeria alike, regardless of Tribe, Religion or Political divide. We are all in this together


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