Following the special valedictory court session for the retirement of Justice Mahmud Mohammed as the Chief Justice of Nigeria (CJN) on November 11, last year, a powerful delegation led by Justice Walter Nkanu Onnoghen headed straight to the Presidential Villa, Aso Rock for the swearing in of the new CJN by President Muhammadu Buhari.
But alas! Justice Onnoghen was sworn in as the acting CJN instead of as the substantive CJN.
A Senior Advocate of Nigeria (SAN), who spoke with our correspondent on condition of anonymity said that “the 1999 Constitution did not make provisions for acting CJN. Before the 1999 Constitution there was never a situation that an heir apparent to the position of CJN was appointed as acting CJN.
“It is also bad that this is taking place at a time when the executive arm is at war with the judiciary as this suggests that the executive is trying to cow the judiciary. It is like a situation where you are fighting the husband and you went and slapped the wife.
“It is not right; it is a wrong time and the most inauspicious time when you have a quarrel particularly when it is unprecedented. It is unconstitutional and there is no provision for appointment of an Acting CJN. You can appoint a judge as acting but not acting CJN.”
Joseph Bodunrin Daudu SAN, former president of the Nigerian Bar Association (NBA) said the situation is unprecedented and downright unhealthy to appoint in an acting capacity the CJN, when the NJC has recommended the same candidate for appointment in a substantive capacity.
The procedure of the appointment of such high judicial officers is clearly stated in Section 231-(1) of the constitution which provides thus: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the NJC subject to the confirmation of such appointment by the Senate.”
According to JB Daudu, the appointment of a CJN is not the exclusive preserve of the executive arm of government.
“It is a tripartite arrangement, which involves the judiciary acting through the NJC by way of recommendation, the executive through the president by way of appointment and the legislature by way of confirmation of the said appointment. Consequently, we are greatly distressed that the Executive is carrying on as if it is the overlord of the other arms of government that has the sole prerogative of the appointment of a CJN,” he said.
The former NBA president said that from the tenor of the constitution, the role of the executive in the said appointment is a mere formality.
“The critical work in looking for a suitable candidate is engaged in by the candidates’ peers i.e. the NJC and it is that exalted body that does the weeding and pruning of the candidates in issue.
“Having concluded that serious assignment, the selected candidate is sent to the president, who in the absence of any fundamental negating factor must appoint the recommended candidate as CJN.
“Indeed, the most important contributor to the process after the NJC is the Senate (Legislature) which must conduct a public confirmation hearing before the appointment takes effect. The effect of that confirmation process is that the whole of Nigeria through their elected representatives participate in the appointment process,” he said.
Our source said further that insinuation that the federal government was scheming for a northerner to be appointed as the next CJN may be credible if Onnoghen was not confirmed as the CJN.
“Whether this is the intention of the federal government or not, Nigerians will say that is the intention which is not good for the country, for the judiciary and for anyone. “The question that now arises according to JB Daudu is why the President (executive arm) will refuse or omit to act on the recommendation of the NJC and instead chose to appoint the NJC nominee in an acting capacity.
According to JB Daudu, “if he is not good for the substantive office why is he then good to act for three months in the same capacity? After all, it is the same security report on the suitability of the candidate that is relied upon by the NJC that the Presidency relies on too.”
However, the presidency has denied insinuations that the president does not want to forward the name of the Acting CJN to the Senate for confirmation, saying that the law stipulates 90 days.
Femi Adeshina, Special Adviser Media and Publicity to President Muhammadu Buhari disclosed that Justice Onnoghen could serve as CJN in acting capacity for three months, stressing that the acting CJN “has not even served out the three months stipulated by the constitution.”
Justice Samuel Walter Nkanu Onnoghen was appointed as acting CJN by President Buhari on November 11, 2016 following the retirement of the immediate past CJN, Mahmud Mohammed on November 10.
Meanwhile, investigations showed that it is not correct that the acting CJN could be removed from office if come February 10, 2017 his appointment as CJN was not validated by the National Assembly (NASS).
Section 231 (5) of the 1999 Constitution as amended stipulates that on the recommendation of the NJC, the acting CJN could still continue in his acting capacity even after the expiration of the three months initial period, which ends February 10, 2017.
Meaning that Justice Onnoghen, if not confirmed, before February 10, 2017 would not leave the office as speculated.
Daily Trust recalls that then President Goodluck Jonathan approved the appointment of Justice Zainab Bulkachuwa as acting President of the Court of Appeal (PCA) in November 2012. Then the NJC relied on the exception in Section 231 (5) to renew the appointment of Justice Zainab Bulkachuwa as the acting PCA for another three months.
Major stakeholders have expressed deep concern over the consequences on the much desired judicial reforms in the country.
Some of them expressed surprised that the President has refused to submit Onnoghen’s name to the Senate for confirmation as the substantive CJN.
“We are bewildered by the action of the President. It is unprecedented since the beginning of Nigeria and even this democracy, for the President not to go by the recommendation of NJC.
“Normally, in the Supreme Court now, there is a tradition there that has been well established which is the fact that it is the most senior justice that is appointed as CJN whenever there is a vacancy in the position of that office as CJN,” they said.
Onnoghen will only serve for a few years and leave the position and the last seven CJN have come from the North and this should be the first time Nigeria would produce CJN from the South.
There are also allegations that President Buhari has no confidence in Justice Onnoghen doing his bidding, hence he appointed him in acting capacity contrary to the practice and convention in the judiciary.
A retired Justice of the Supreme Court, Olufunlola Oyelola Adekeye, said it would be difficult for a CJN in acting capacity to introduce reforms in the judicial sector since he is not sure of his time frame in office.
She said: “When you have an acting CJN, who can be removed at any time, he will lay down whatever he wants to do as a substantive CJN but will wait until he is appointed properly. It is very important. When you have a solid tenure of office and you know what to do, you can swing into action. When your tenure is not certain, you do not know what to do. That surely will affect the Nigerian judiciary; not only in the dispensation of justice but in several other ways.
“When you are the CJN, you are the head of judiciary, you must definitely have your own pattern or whatever style you want to introduce to the system to benefit it.
“But no reform can be done now when you do not know your position. This is the first time we are having an acting CJN. It has never happened in Nigeria. May God help us in Nigeria.”
An impeccable source close to the NJC, however said the President would most likely confirm Onnoghen’s appointment as CJN before February 10, this year.