The Constitution The part of the Constitution that deals with the appointment of a CJN is section 231(1) of the 1999 Constitution and the wordings of that section of is as follows “The appointment of a person to the office of Chief Justice of Nige- ria shall be made by the President on the recommendation of the National Judicial Council…..” Definition of Recommendation The pertinent question to me is the meaning of the word “recommendation”! Is the President under a legal duty to forward the name of anyone recommended by the NJC to the Senate for Confir- mation as CJN? I searched both online and paperback dictionar- ies for the meaning of the words “recommend” and “recommendation” and this is what I found : 1. Oxford Advanced Learners Dictionary 9th edition defines “recommend” thus ” (a) to tell somebody that something is good or useful or that somebody would be suitable for a particular job” (b) to advice a particular course of action … 2. Funk and Wagnall’s Standard Dictionary International Edition Vol 2 defines recommend thus ” to advice; urge ” 3. Blacks Law Dictionary 5th Edition … Recom- mend means ” to advice or counsel” In all of these definitions it is clear that to recommend is to advice, and not to order or obligate. This position is further confirmed by Black’s definition of the word “Recommendation” thus : “The act of one person in giving to another a favourable account of the character, responsibility or skill of a Third…..Recommendation refers to an action which is advisory in nature rather than one having any binding effect” These definitions, I believe, largely conclusively settle the matter on the purport of the words “recommend” and “recommendation”! Section 231 of the 1999 Constitution In my humble opinion I submit that it is very clear from the wordings of the Constitution that the power to appoint a CJN rests solely with the President. Under section 231(1) the other bodies mentioned in that section were given specific roles to play in the process of appointing a new CJN e.g the NJC is to “recommend”…. The Senate is to “confirm”…! The word “appoint” in section 231 is not in anyway associated with the NJC or the Senate. If as a school of thought postulates, the President has no say in the appointment of the person recommended by the NJC and all the President is expected to do is receive the name from the NJC and forward it to the Senate. That will be tanta- mount to saying that it is the NJC that has power to appoint the CJN, and not the President. For under such a scenario the NJC might as well send the name straight to the Senate with no reference to the President. Yet the wordings of section 231(1) as to who has the power to appoint the CJN are very unambiguous! The 3 key actions in appointing a new CJN in section 231 are (a)appoint (b) recommendation (c) confirm and the framers of the Constitution clearly assigned these 3 key actions to different institu- tions …President to appoint….NJC to recommend and Senate to confirm! NJC Recommendation: Advisory, not Binding One other reason why I submit that the NJC recommendation to the President on the appoint- ment of the CJN is merely advisory and NOT binding, is the fact that both the Federal Judicial Service Commission (FJSC) and the NJC under section 153 and the 3rd schedule to the 1999 Constitution are clearly listed as Executive Bodies NOT Judicial Bodies. Section 153 is contained in chapter VI of the Constitution which establishes the Executive arm of Government …. The FJSC and the NJC were not created by or under Chapter VII of the Constitution which establishes the Judiciary. I am of the opinion that the NJC, though made up of Judges, is an Executive body that performs executive functions and is a body subordinate to the President who is the Head of the Executive arm of Government. And there is just no way the recommendations of a subordinate body can bind the superior body……except where the law expressly states so! A judge whilst functioning as a member of NJC or FJSC is subordinate to the President but when the same Judge sits in his court to perform purely Judicial functions, he is in no way subordinate to the President … And can in fact invalidate actions of the President! That is how the Presidential. Constitution works. I am not unaware of some decided cases which seem to have held that the NJC recommenda- tion on the nominee for CJN is binding on the President… I note them, but with all due respect, I disagree with them because any such view in my own humble. Power of the President The Framers of the Constitution in their wisdom, must have had their reasons for creating such convoluted appointment procedures for the CJ of Nigeria …..unlike in the situation in America where the President has unfettered discretion to appoint a CJN, subject only to Senate confirmation ….but I do not by any stretch of the imagination want to believe that the framers of our Constitu- tion had in mind a situation where the power of the Executive President (as Head of the Executive arm of Government) to appoint a CJN would be made subsidiary to the power of recommendation by a subordinate Executive body! Under the Doctrine of Checks and Balances, the Senate can refuse the appointment of the President’s candidate for CJN and the Judiciary can also set the appointment aside in a judicial proceeding, but I do not know under what consti- tutional reasoning a body under the Executive can supplant the President’s Constitutional power to appoint a new CJN, by imposing its recommenda- tion on him! Emmanuel Majebi, Legal Practitioner, Lagos ]]>