To be, or not to be: That is the question: Whether ‘tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take arms against a sea of troubles, and by opposing end them? To die: to sleep; no more; and by a sleep to say we end the heart-ache and the thousand natural hocks that flesh is heir to, ‘tis a consummation devoutly to be wish’d.

The above quote from William Shakespeare’s Hamlet was the so-called “nunnery” or “monastery” scene soliloquy (Act III scene 1), engaged in by Hamlet, the Prince of Denmark. Hamlet had erroneously thought he was alone, but other dramatis personae like Ophelia, Claudius and Polonius, loomed around him. Hamlet, who was bemoaning his woes, pains and unfairness of life, had contemplated suicide and death. But, he acknowledged that the latter was a worse alternative.

Walter Onnoghen: Any Replication?

This appears to be the unfortunate scenario playing out in the appointment of Justice Walter Onnoghen, as Chief Justice of Nigeria, which has unnecessarily been mired in needless controversy. Never since the first indigenous Chief Justice of Nigeria, Justice Adetokunbo Ademola (1958 – 1972), or the English Chief Justice before him, Justice Stafford Forster Sutton (1955-1958), has such appointment assumed this dizzying height of cacophony and uproarous babel.

For historical contextualisation, the following were Chief Justices of Nigeria after Ademola, with their years of appointment:

Justices Teslim Elias (1972 – 1975); Darnley Alexander (1975 – 1979); Atanda Fatai-Williams (1979 – 1983); George Sodeinde Sowemimo (1983 – 1985);  Ayo Gabriel Irikefe (1985 – 1987); Mohammed Bello (1987 – 1995); Muhammed Lawal Uwais (1995 – 2006); Salihi Modibo Alfa Belgore (2006 – 2007); Idris Legbo Kutigi (2007 – 2010); Aloysius Iyorgyer Katsina – Aliu (2010 – 2011); Dahiru Musdapher (2011 – 2012); Aloma Mariam Mukhtar (first female Justice of the Supreme Court and first female Chief Justice of Nigeria) (2012 – 2014); Mahmud Mohammed (2014 – 2016). From the above chronological graph, it is easy to observe that since the last 30 years when Justice Mohammed Bello became the CJN, and up till 11th of November, 2016, when Justice Mahmud retired, all the Chief Justices of Nigeria hailed from the northern part of beleaguered Nigeria. The last time a South-south person smelt the exalted seat was between 1985 – 1987, over 30 years ago, through Justice Ayo Gabriel Irikefe. The last time I checked, this country belongs to us all.

It was, therefore, with bated animation and curious anxiety, that the country waited for the appointment of Walter Onnoghen, the University of Ghana, Legon-trained, 2nd Class Upper graduate, 1978 called -to-the-Bar lawyer, born on 22nd December, 1950, in Okurike, Biase LGA of Cross River State. He is expected to be the 15th indigenous Chief Justice of Nigeria, since her 1960 independence, after the National Judicial Council (NJC), the authority legally empowered to nominate him to the president for onward transmission to the Senate, had done so promptly on 10th of October, 2016.

It would be observed that the framers of the 1999 Constitution (as altered) appreciated the importance and pre-eminent position of the Head of the third arm of government when it involved all the three arms of government in his nomination, screening and appointment. This is in keeping with the hallowed doctrine of separation of powers (with checks and balances), as famously espoused by the great French philosopher, Baron de Montesquieu in 1748.

Thus, the NJC by virtue of section 21 (1) of the third schedule to the 1999 Constitution, reserves the sole right to recommend a Justice of the Supreme Court to Mr. President for appointment to the office of CJN. The section provides:  “The NJC shall have power to recommend to the President from among the list of persons submitted to it by the Federal Judicial Service Commission (FJSC), persons for appointment to the offices of the Chief Justice of Nigeria, The Justices of the Supreme Court and the President and Justices of the Court of Appeal, the Chief Justice and Judges of the Federal High Court….”

The FJSC consequently forwarded Justice Walter Onnoghen’s name to NJC, as its sole candidate for this lofty office, having been found fit and proper for same. The NJC in turn, at an emergency meeting, promptly recommended Onnoghen’s name to the president on the 11th of October, 2016, for him to forward same to the Senate for confirmation in accordance with section 231 (1) of the 1999 Constitution. The section provides laconically, “the appointment of a person to the office of CJN shall be made by the President on the recommendation of the NJC subject to confirmation of such appointment by the Senate.”

It was thus expected that President Buhari would quickly follow laid down convention and tradition from the time of Lugard, who, as Governor General of Nigeria, on the 1st of January, 1914, on the occasion of the amalgamation of Northern and Southern Nigeria and the Lagos Colony, appointed Sir Edwin Speed, in place of Mr. Willoughby Osborne, as the first Chief Justice of an amalgamated Nigeria. 

Neither the Clifford Constitution of 1922, nor the Arthur Richards Constitution of 1946, made specific provisions for a Chief Justice. It was only the 1960 Independence Constitution (section 105 (1) – (5)) and 1963 Republican Constitution (section 211) that did. Then, the present 1999 Constitution, which also provides for the office of CJN as quoted above, followed.   

It is crystal clear from the provisions of section 231 (1) and section 21 (1) to the third schedule (part 1) of the 1999 Constitution, that once the NJC has recommended a name to Mr. President for appointment, the president’s function at that stage is simply ceremonial to forward same to the Senate for confirmation. It is the Senate, not the president, that does the screening, to determine whether or not the person so recommended by the NJC meets the criteria set out in section 231 (2) which states:

“A person shall not be qualified to hold the office of CJN or a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.”

It would be seen from section 231(2) of the Constitution that the only qualification required of Onnoghen to be made CJN is that he must have qualified to practise Law for, at least, 15 years. In Ghana, there is, in addition to 15 years post call qualification as enshrined in Article 144 (2) read together with Article 128 (4) of Ghana’s 1992 Constitution, an additional qualification, which requires that such a person must be of “high moral character and proven integrity.” This is not so in Nigeria.

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Rather than quietly forward Onnoghen’s name to the Senate as has been the tradition, PMB curiously dilly dallied for one full month. Boxed into an uncomfortable corner with the expiration of Justice Mahmud’s tenure by effluxion of time on 11th of November, 2016, the NJC was forced to fall back on section 231 (4), by sending Onnogen’s name to PMB on 11th of November, 2016, to swear him in, in an acting capacity. The section provides that:

“If the office of CJN is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the president shall appoint the most senior Justice of that Supreme Court to perform those functions.”

Predicated on this, President Buhari swore Onnoghen in as “acting CJN”, not substantive. It is curious, is it not, that PMB would swear in Onnoghen (a Southerner), in an acting capacity, on 11th of November, 2016, when he had ample time, for over one month, to forward his name to the Senate for confirmation as substantive CJN? If Onnoghen was found worthy to be sworn in as acting CJN under section 231 (4), why not simply forward his name to the Senate for outright confirmation, as CJN under section 231 (2)? The scenario is troubling.

While section 211 of the defunct 1979 Constitution leaves appointment of the CJN “in the discretion of the president”, subject to confirmation of the Senate by simple majority, section 231 (2) of the 1999 Constitution corrected this. It clearly makes the president a mere stop-gap purveyor of NJC’s recommendation to the Senate. It is after the Senate’s confirmation that the president’s power of “appointment” resumes.

The president thus lacks absolute power to determine who becomes CJN, or to side-track or circumscribe NJC’s “recommendation”, or Senate’s subsequent “confirmation”. This is because the three arms of government are critically involved in this tripodal interface – the Judiciary (section 6), makes “recommendation”; the Senate (Legislature, section 4), subjects the “recommended” person to “confirmation”; the president (Executive, section 5), makes the “appointment”. But, the NJC has an upper hand, for no appointment can ever be confirmed by Senate, or made by the president without NJC’s prior recommendation.

In the case of Elelu Habeeb vs. A-G. Federation, the apex court, dealing with a cororally situation at the state level, held, per Adekeye, JSC:

“Thus, the entire provisions of the 1999 Constitution in Sections 153(i), (ii), 271(1)(a)(ii) and paragraph 21 of part 1 of the Third Schedule to the Constitution of the Federal Republic Nigeria 1999, dealing with the appointment, removal and exercise of disciplinary control over judicial officers must be read, interpreted and applied together in solving the issue of whether or not the governor of a state and House of Assembly of a state can remove a Chief Judge of a state in Nigeria without any impute of the National Judicial Council. This is because the combined effect of these provisions of the constitution has revealed very clear intention of the framers of the constitution to give the National Judicial Council a vital role to play in the appointment and removal of the judicial officers by the governors and Houses of Assembly of the state.” 

To be concluded next week.

                                     

Thoughts for the week

“In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”   

Sandra Day O’Connor

“What a country needs to do is be fair to all its citizens – whether people are of a different ethnicity or gender.”

-Chinua Achebe