Justice Mahmud Mohammed retires today as the 14th indigenous Chief Justice of Nigeria amid applause and calls for reform, with increasing concerns over delay in the appointment of his successor, ADE ADESOMOJU and RAMON OLADIMEJI write
Two-years-short-by-10-days ago, Justice Mahmud Mohammed took over the mantle of leadership of the Nigerian judiciary, the third arm of government, from his predecessor, Justice Aloma Mukhtar, who retired as the Chief Justice of Nigeria on November 20, 2014.
Justice Mohammed sat there waiting for the event to conclude so that he could prepare for the date he needed to keep with the then President Goodluck Jonathan at the State House, which was just a stone’s throw from the Supreme Court.
As the event at the Supreme Court ended, Justice Mohammed soon emerged at the Presidential Villa where he took the oath of office and the oath of allegiance which were administered to him by then President Jonathan ushering in his era as the 14th indigenous CJN.
That day, November 20, 2014, Justice Mohammed returned to the apex court complex as the CJN, decorated by then President Jonathan with the national honour of a Grand Commander of the Order of the Niger, which goes with his new office.
Today, Justice Walter Onnoghen will also be sitting on the apex court bench beside Justice Mohammed whom the Nigerian judiciary will be bidding a farewell at a valedictory court session that will be held in his honour as he attains the mandatory retirement age of 70.
But Onnoghen will probably be sitting beside Justice Mohammed without any date to keep with President Muhammadu Buhari.
What happens after Justice Mohammed bows out today and what role Justice Onnoghen, who automatically becomes the most senior Justice of the Supreme Court and whose name has been recommended to President Buhari for appointment as the next CJN, will play are still not clear.
The cloud of uncertainty hanging around the appointment of the next CJN is bound to thicken, except the Presidency takes a drastic action to avoid a vacuum which the judiciary has never witnessed since 1958 when the first indigenous CJN (then known as Chief Justice of the Federation) took over from Justice Stafford Foster of the era of colonial rule in Nigeria.
The National Judicial Council had announced on October 13 that it had recommended Justice Onnoghen to President Buhari for appointment as the next CJN.
By provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the President is expected to forward the name of the nominee to the Senate for confirmation.
The provisions of Section 231 (1) and (2) of the Constitution read, “The appointment of a person to the office of the Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.
“The appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the advice of the National Judicial Council subject to confirmation of such appointment by the Senate.”
Previously, the confirmation rituals were completed before the retirement of the outgoing CJN so that there was a seamless transfer of the baton of leadership of the judiciary on the day of retirement of the outgoing helmsman.
But this time, no clue has been provided by the Presidency on why this has not been done even as the time ticks to the last minute of the tenure of Justice Mohammed.
A Senior Advocate of Nigeria and author of many legal books, Mr. Sebastine Hon, raised the alarm over the scenario playing out describing it as scary.
He said, “The tenure of office of the incumbent Chief Justice of Nigeria, Mahmud Mohammed, will expire at 12 midnight on November 9, 2016.
“The name of Hon. Justice Walter Onnoghen, the next most Senior Justice of the Supreme Court, has, since October 10, 2016, been forwarded to the President, who is expected, constitutionally, to forward it to the Senate for confirmation.
“Till this moment, Mr. President has not forwarded Justice Onnoghen’s name to the Senate for confirmation. This is scary, to say the least.
“The Senate confirmation hearings are not jamborees but are grave constitutional exercises, requiring incisive investigative and, at times, confrontational posturing.
“In other words, the Senate needs to obtain the biodata of the CJN nominee ahead of time, to enable the upper legislative chambers to conduct a thorough investigation cum confirmation exercise.
“The time to act is now, as the Senate must confirm Justice Onnoghen latest on Tuesday, to further enable his swearing-in just before or just after Justice Mahmud bows out.”
Amidst all these, the judiciary is still battling to survive a devastating blow it received with the raid on the houses of some judges in different parts of the country by operatives of the Department of State Services between October 7 and 8.
The operation, which the DSS described as “sting”, saw four serving judges, including two Justices of the Supreme Court, Justices Sylvester Ngwuta and Inyang Okoro, arrested for alleged corruption allegations.
Perhaps, the development was part of why Hon said in his statement on Tuesday that, “The image of the judiciary has nosedived in recent times.”
Calling on Buhari not to allow the situation to degenerate further, Hon said, “Mr. President must be seen to be preventing any further dent on the image of this crucial arm of government.
“Mr. President should once again act as the father of the nation, by forwarding Justice Onnoghen’s name for confirmation – since he is the only southerner entitled to occupy the seat of the CJN for close to 30 years.
“This gesture will go a very long way in cementing our sectional divides. Again, the time to act is now.”
Apart from Justices Ngwuta and Okoro, also arrested by the DSS operatives were Justice Adeniyi Ademola of the Federal High Court in Abuja and Justice Mu’azu Pindiga of the Gombe State High Court.
Others who were arrested had, before the raid by the DSS operatives, been placed on suspension by the NJC pending when President Buhari and their various state governors would approve the recommendation for their sacking.
They were a former Chief Judge of Enugu State, Justice I. A. Umezulike, the Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Tsamiya; and a judge of the Kano State High Court, Justice Kabiru Auta.
After the DSS raids, some other judges, including Justice Rita Ofili-Ajumogobia of the Federal High Court in Ilorin had been questioned by the Economic and Financial Crimes Commission over corruption allegations.
Lawyers too are not left out. A number of senior members of the Bar have recently been interrogated by the EFCC for allegedly bribing some judges.
This, early in the week, saw the National Legal Adviser of the All Progressives Congress, Dr. Muiz Banire (SAN), step down from his position pending when the EFCC would conclude the case.
Calls from various quarters, including the President of the Nigerian Bar Association, Mr. Abubakar Mahmoud (SAN), for the suspension of the affected judges who are being investigated for corruption allegations soon began to grow.
But the NJC initially resisted the calls on the grounds that it lacked the power to suspend the judges in the absence of any evidence forwarded to it by the judges’ accusers.
The objection by the NJC however collapsed when the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), wrote the NJC ahead of its meeting held between November 2 and 3, indicating that there was prima facie evidence already established against some of the judges.
The AGF added that he was ready to prosecute the accused judges.
In fulfillment of his promise made to the NJC, the AGF on November 3 charged the Chief Registrar of the Supreme Court, Mr. Ahmed Saleh, and two other employees of the apex court with nine counts, including diversion of N2.2bn belonging to the court.
Saleh, alongside Muhammed Sharif and Rilwanu Lawal, was also accused of receiving gratifications totaling N74.4m from private contractors which provided services to the Supreme Court between 2009 and 2016.
On Tuesday, the AGF also filed money laundering and passport fraud charges against Justice Ngwuta.
Since the raid on the judges, the face of the judiciary had not been the same as the development further assaulted the integrity of the institution with the narrative that the NJC had always been shielding many corrupt judges, increasingly receiving acceptance from many who see the third arm of government as corrupt.
This is despite the fact that the NJC, under the chairmanship of the outgoing CJN, had in recent times sanctioned a number of judges for misconduct and developed a new National Judicial Policy, which, though had been criticised for some of its shortcomings, was intended to enhance transparency and smooth administration of justice.
The challenge ahead of the incoming CJN, as some experts have noted, will not just be limited to fighting judicial corruption; it will also include creating a new face which is capable of rejuvenating the collapsed public confidence in the institution.
More so, Justice Mohammed himself, in the early days of his tenure, had raised concern about the culture of issuing conflicting judgments by courts of coordinate jurisdiction and the detrimental impact of backlog of cases on administration of justice.
At a conference of the Justices of the Court of Appeal Justices held shortly after he was sworn into office, Justice Mohammed had lamented the negative impact of conflicting judgments on justice administration in the country and promised to address it.
He said at the event, “I must also urge you to ensure that there is a return to certainty in the adjudication of cases heard by panels of this court.
“All too often, the judiciary has been confronted with the accusation of conflicting decisions delivered by the Court of Appeal particularly in seemingly straightforward issues.
“Conflicting judgments of various divisions of the Court of Appeal are not only undesirable but the result may manifest in a miscarriage of justice and ultimately loss of public confidence in the judiciary. Conflicting judgments also lead to accusations of improper considerations and corrupt practices.
“I need not remind us of the corrosive effect that this has had on the judiciary and its estimation in the eyes of the public. I am sure you will agree with me that this issue must be addressed as a matter of urgency. Legal certainty, as you all know, is a key tenet of a robust judiciary that is worth its name.”
The admonition by the outgoing CJN, definitely had made little or no impact and remains another big challenge his successor must decisively deal with.
It started as a mere continuation of the ugly trend when various appeal panels which heard electoral cases that emanated from the 2015 general elections gave conflicting decisions on the validity of the card reader machine as a means of accreditation in an election.
It culminated in a show of shame when various divisions of the Federal High Court issued conflicting orders with respect to disputes relating to the leadership tussle between the two factions of the Peoples Democratic Party.
Though, Justice Mohammed had innovatively constituted the panels of the apex court to tackle backlog of cases, over 5,000 cases filed within the period of eight to 10 years still pending in the docket of apex court showed that a lot still needs to be done.
The CJN also made a push for an Alternative Dispute Resolution system for the amicable settlement of deserving cases, in order to relieve the burden on the apex court. But this has yet to see the light of the day.
The Automated Court System proposed and launched in the twilight of Justice Mukhtar’s tenure to enhance quick dispensation of cases remains a project whose fate is still hanging.
A Senior Advocate of Nigeria,Chief Mike Ozekhome, said Justice Mohammed would be remembered as an efficient and effective CJN, who put measures in place to deter corruption in the judiciary.
Ozekhome also described him as a strong man who stood his ground and fought for the independence of the judiciary.
He said, “He is a very strong, dogged man, who stood up to a bully, called the executive. Without a strong Justice Mohammed, the judiciary would have been completely annexed with the executive by now. But he stood his ground and used the self-deodorising, mechanism, which is in-built, to remove bad eggs from the judiciary, through the NJC, by monitoring judges very well in the last years.
“Before the noise of the invasion by the SSS, the NJC, headed by Justice Mohammed, had already suspended some judges, disposed some and even recommended some for criminal prosecution. He was a very honest, no-nonsense judge, who did not condone corruption in any form. He introduced some methods to defeat corruption in matters that were before the Supreme Court, particularly electoral matters. What he did was that he would tell as many as 14 justices to prepare for a particular case. All of them would be given the files but none of the justices would be certain that they would actually be on the panel the following day. It is the very morning of the hearing of the case that he would now announce the members of the panel. This was so that even if some politicians wanted to reach some particularly targeted justices, it would be difficult because they would not have known the justices that would be on the panel.
“The second method he used was to insist that after hearing cases, judgments were delivered on the same day, immediately, even if the reason for the judgment would be given at another date. He made sure that justices delivered judgments on hearing days, so that parties would immediately know their fate. And he did that also to prevent external pressure by politicians, relations and friends on the justices of the Supreme Court.
“But the area where I disagree with him is that after he had insisted, through the NJC, that judges should not step down on account of mere allegations against them by the SSS, he later overturned that decision through the NJC, by saying that because the Attorney General Abubakar Malami had insisted that they would file charges against the judges, the judges had to recuse themselves. I believe that decision was and is still wrong because it is a complete violation of Section 36 of the 1999 Constitution, which presumes the innocence of a person accused of an offence. By asking the judges to recuse themselves, they had already been presumed guilty, even though they may never be guilty of that offence. Whereas some of the judges have also accused some ministers of corruption, none of the ministers has been questioned. I think that by finally agreeing that the judges should step down, it was more like a tacit endorsement of the ignoble and primitive action of the SSS. I don’t agree with that decision.
“But all in all, Justice Mohammed’s tenure was a glowing one that was loaded with achievements including the introduction of technology. He would be remembered as a Chief Justice who had a very short time but was very effective, effectual, honest and dedicated.”
Mr. Yusuf Ali (SAN) said Justice Mohammed deserved commendation for ensuring that the judiciary under his watch invested well in the training of judges.
He said despite the crisis in the judiciary during his last days as the CJN, Justice Mohammed was leaving the judiciary better than he met it.
Ali said, “The recent happenings in the judiciary had tended to muffle the great work he did, but whatever happened will not detract from the fact that he left the judiciary better than the way he met it.”
A Lagos-based lawyer, Mr. Jiti Ogunye, described Justice Mohammed’s tenure as one during which the Nigerian judiciary faced its greatest crisis of integrity and credibility.
Ogunye expressed reservation over the response of the NJC under the leadership of Justice Mohammed to the allegations of corruption against judges in the country.
He said, “His tenure as the CJN turned out to be a tenure in which the judiciary faced a serious crisis of credibility, a crisis of integrity, a crisis of continued relevance. Though the NJC, under him, tried its best, but the issue of some judicial officers being alleged to be corrupt and the response of the NJC to such allegations has perhaps become a defining attribute of his headship of the Nigerian judiciary. And so, there is a feeling amongst stakeholders in the judiciary, the Bar and the bench, and among the populace, that he is leaving the judiciary with a lot of issues unresolved. This has nothing to do with him as a person, and I am sure he will not be leaving the judiciary as a happy person given the circumstances in which the judiciary found itself.
“Having had an illustrious career and rising to the zenith of the Nigerian judiciary and presiding over the Supreme Court of Nigeria, I am sure he would have wished to leave the judiciary in more auspicious circumstances.
“We can only hope that his successor and everybody in the judiciary, will see the need to tackle the problems and restore the glory of the judiciary, so that the citizens can once again have faith in the judiciary.”