• Buhari may go for a private lawyer as replacement
From Godwin Tsa, Abuja
By February 10, the tenure of Justice Walter Onnoghen as the Acting Chief Justice of Nigeria (CJN), will constitutionally come to an end, unless the National Assembly confirms him as the substantive Head of the nation’s judiciary.
This is because, Section 231 (5) of the 1999 Constitution as amended, stipulates that any person so appointed “shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appointment a person whose appointment has lapsed.”
The National Judicial Council (NJC) had on October 6 last year, recommended Justice Onnoghen to President Buhari to succeed Justice Mahmud Mohammed, who exited last year after attaining the mandatory retirement age of 70 years.
In recommending Onnoghen, to the President, the NJC also acted in accordance with the law, as stipulated in Chapter 7, Section 31 (1) of the Constitution. The section, reads: “The appointment of a person to the office of 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”.
Chapter four of the same section states that; “If the office of Chief Justice of Nigeria 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 has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.
The Constitution further states in sub-section (5) of the same section that; “except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appointment a person whose appointment has lapsed”.
But the confirmation of his appointment by the National Assembly can only happen when the President transmits a letter to the Senate, nominating him for that exalted position, a function; the President is yet to carry out, as at press time.
Although the presidency has in the wake of growing concern over the issue, assured that the name of Justice Onnoghen would be sent to the National Assembly for confirmation, stakeholders in the nation’s judiciary are afraid that there is a hiding agenda to deny him of the job.
Already, there is growing disquiet over the inability of President Muhammadu Buhari to forward Justice Onnoghen’s name to the Senate for confirmation as a substantive CJN.
This is expected because, it is the first time, a Chief Justice of Nigeria is appointed in acting capacity. The development is unsettling the judiciary and has equally raised serious concern across the country, with some groups and individuals alleging ethnic conspiracy to deny Justice Onnoghen, being the first Southerner in 30 years to merit the CJN position, based on established judicial convention.
Curiously, the next in rank to Justice Onnoghen is a Northerner. He is Justice Ibrahim Tanko Muhammad from Bauchi State. But while Onnoghen has four more years to retire from service, Muhammad has a little over one year, to go.
The tension is being fueled by report making the rounds that the President was contemplating breaking the age-long tradition in the appointment of the most senior Justice, as the Chief Justice of Nigeria, and was rooting for a private legal practitioner from the South-South region, where Justice Onnoghen also hailed from, as the new CJN.
This, according to sources, would disabuse the minds of many Nigerians from the South that the President was promoting a Northern agenda.
For this to happen however, our sources further disclosed, some Justices of the Supreme Court, would be sent on compulsory retirement, to pave the way for younger ones.
One of the sources added that President Buhari was bent on weeding the Supreme Court of Justices, that have soiled their hands with issues of bribery and corruption.
Some stakeholders who spoke on this development expressed deep concern that the non confirmation of Justice Onnoghen as the substantive CJN would throw up succession crisis in the judiciary and also bread division and hatred from the bench.
A former President of the Nigeria Bar Association (NBA), Chief Wole Olanipekun (SAN), has warned that denying Onnoghen the office would endanger stability and peaceful succession at the apex court.
Besides, Olanipekun pointed out that such action would ultimately affect justice administration in the country negatively. He therefore urged President Buhari, to respect the constitution.
His words: “If Nigeria as a country can rightly not afford the luxury of a vacuum in the office of President of Nigeria for one day, I submit with every respect and force, that we should stop toying with the idea of creating an avoidable, but dangerous vacuum in the office of Chief Justice of Nigeria. The Judiciary is so sacred, central, unique, crucial, critical and pre-eminent to us as a nation, and we must do everything to safeguard its interest and protect its independence. Thus, all men of goodwill should join in the clarion call for the appointment of a substantive Chief Justice of Nigeria without any further delay!”
A constitutional lawyer and author, Mr. Sebastine Hon (SAN), in his contribution called on the President to quickly forward the name of Justice Onnoghen to the National Assembly for validation of his appointment.
He said: “I strongly counsel Mr. President to formally appoint Justice Onnoghen and immediately forward his name to the Senate for confirmation. This will not only create a North-South balance in the sharing of federal positions, but will also reassure the Judiciary that it is not being deliberately maligned.”
Also speaking on the issue, former President of the Nigeria Bar Association (NBA), Chief Joseph Daudu (SAN), said that President Buhari’s tardiness in appointing a substantive CJN for the country’s judiciary was “unhealthy.”
Daudu said that the appointment of an Acting CJN by the President was unprecedented and unhealthy for the country’s judiciary, particularly when the NJC had recommended Justice Onnoghen as the candidate for appointment in a substantive capacity.
The senior lawyer declared that the appointment of a CJN was not the exclusive preserve of the Executive arm of government, saying, “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”.
For another Senior Advocate, Samson Ameh, the situation was not one that could not be remedied as the NJC still reserves a constitutional right to intervene.
“The NJC can still intervene and prolong the period, possibly. So as it is now, if the period of three months is to expire, I will recommend the intervention of the NJC to enable the President take the decision that is to be taken,” said Mr. Ameh, who encouraged the presidency to “act in order to avoid a constitutional crisis.”
Mr. Rotimi Oguneso, a Senior Advocate of Nigeria, in his contributions viewed the President as “having a penchant for stirring up needless controversies”.
He further said: “This is where I find a problem with this government. It appears the present government has a penchant for stirring up needless controversies.
“The NJC has recommended Justice Onnoghen, who is the most senior judge to be the next CJN. What the President needs to do is to send his name to the Senate and it will come into being”, Mr. Oguneso said.
“The government has not told us; I am not aware of any situation or any disability on the part of Honourable Justice Onnoghen. He has already been recommended even to the substantive office, why make him acting in the first instance? That is where the controversy started.
“The Nigerian government right from the Obasanjo era does not seem to like the collegial system of appointment; whereby it is the judiciary that has so much say on who becomes the Chief Justice. But the truth of the matter is that if they do not like it; why don’t they push for a constitutional amendment?
“The former President Obasanjo did express his reservations, that the executive doesn’t seem to have so much say; but I don’t see that as correct, because there is nobody who is appointed a judge whom the State Security Service will not have conducted an investigation upon. If the President has anything against a certain appointee, he should state it. Why not make it public?” Mr. Oguneso queried.
Another lawyer, Jiti Ogunye, also said that the situation should not degenerate into something worrisome as many Nigerians presume, adding that “the hysteria in town about the possibility of a doomsday that is looming; that once that three month clocks, then the judiciary will be thrown into a pandemonium, or a new CJN may then be appointed on a rotational basis; may not occur”.
He further said: “let’s apply the facts to that provision; the NJC currently is headed by this same acting CJN, so the NJC can exercise the power to say we want the present acting CJN to continue, and the president cannot override that recommendation,” Ogunye, said.
He however queried the President’s silence on the matter, saying “what this President has failed to do is to either forward his name to the Senate or, if he has any reason that is cogent and verifiable for not accepting the recommendation, he then consults with the NJC on that subject.
“The Third Schedule to the Constitution, in Part One, Paragraph 21 and 22, details the composition of the NJC and the powers of the NJC. Under those provisions you will see that the President is empowered to consult with the NJC on any matter pertaining to the Judiciary.
“So under that position that allows for consultation, the President or Governor of a state is obliged to consult with the NJC, if he has any reservation. And the President can have such an objection, because it is not a rubberstamp.
“So what this President has not done, which a lot of people find objectionable and unacceptable is that he has not exercised his power regarding this matter, and I have serious objection to that kind of dilatory and lethargic approach”, said Mr. Ogunye.
Other lawyers also drew the attention of the President to some of the landmark judgments delivered by Justice Onnoghen that earned him the reputation of a fearless, incorruptible and courageous Judge, deserving to lead the nation’s judiciary.
Some of the judgments included his minority decision, where he allowed the appeals filed by the presidential candidates of the All Nigeria Peoples Party and the Action Congress, Gen. Muhammadu Buhari and Alhaji Atiku Abubakar respectively, challenging the upholding of Yar’Adua’s election by the Court of Appeal.
His judgment in Buhari’s appeal left four out of seven justices of the apex court upholding the April 21, 2007 presidential election while the remaining three said it could not stand. Justices George Oguntade, Maryam Mukthar and Samuel Onnoghen, while delivering their judgments in respect of Buhari’s appeal, held that there was substantial non-compliance with the Electoral Act 2007, which vitiated the election.
They consequently set aside the judgment of the Appeal Court, which had earlier upheld the election, and in its place nullified the presidential election. But, the remaining four members of the panel, namely, the Chief Justice of Nigeria, Justice Idris Kutigi, Justice Iyorgyer Katsina-Alu, Justice Niki Tobi and Dahiru Musdapher upheld the election.
Another courageous judgment delivered by Justice Onnoghen was that between Rotimi Amaechi V Celestine Omehia over the Rivers State Governorship seat.
Justice Onnoghen, who delivered the lead judgment had removed Omehia and installed Amaechi as the governor of the State, after holding that he was the rightful candidate of the PDP and that his consequent substitution on the grounds that his name was earlier submitted “in error”, was not cogent and verifiable reason as required by law.
Only recently too, Justice Onnoghen delivered the judgment of the Supreme Court that dismissed the appeal of Senate President, Dr. Bukola Saraki challenging the jurisdiction of the Code of Conduct Tribunal (CCT), to try him.
Justice Onnoghen went further to declare that the CCT has quasi criminal jurisdiction and could issue a bench warrant.
Former CJNs React
As speculations are rife that President Buhari may abandon the age long tradition in the appointment of the Chief Justice of Nigeria, the immediate past CJN, Justice Mahmud Mohammed, cautioned against subverting the age-long tradition of appointing the most senior justice of the Supreme Court to head the country’s judiciary.
Justice Mohammed who spoke at the opening of the 2016/2017 Legal Year in Abuja, said: “Permit me to restate that Section 231 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is clear as to the procedure that must be followed in appointing a Justice of the Supreme Court or indeed a substantive Chief Justice of Nigeria. The National Judicial Council recommends, the President of the Federal Republic of Nigeria approves and the Senate confirms such appointments.
“While I would admit that there is no constitutional restriction as to where those to be appointed are selected from, the long held practice, which I daresay had been apolitical, transparent and fair, had been to appoint the most senior justice of the Supreme Court to the office of the Chief Justice of Nigeria.
“The idea that we can appoint a legal practitioner, without the proven experience or the temperance of character developed through the years of active participation in adjudication, may indeed be fraught with risk, none greater than the risk of creating another sinecure for party loyalists or reducing the office of the Chief Justice of Nigeria to one which can be ‘lobbied’ for. This will undoubtedly and irreversibly hurt our justice system and must be strenuously resisted”.
Also, another ex-CJN, Justice Mohammed Uwais, also criticised the idea of appointing a private legal practitioner to the apex court’s Bench.
According to Justice Uwais, “part of the problem is not just the ability of the judge you want, there is the issue of integrity; if you have been a judge at the High Court or Court of Appeal before coming to the Supreme Court, you would have done cases, whether you are a corrupt person, which would have been discovered. And from your judgments also, the Court of Appeal would have known how good you are if you are at the High Court. But if you are a legal practitioner, you haven’t written any judgment, there is no way you can be assessed in that respect.
“Again, you are not under the supervision of anybody when it comes to integrity and those are the two points why we felt anybody who is at the Bar who wants to go to the Supreme Court, should come to the Bench; let him start from the lower Bench”.
Nigerians spite fire
Some notable groups in the country have also lent their voices in demanding that Justice Onnoghen’s appointment as substantive CJN be validated by the National Assembly.
For instance, Coalition in Defence of Nigerian Democracy and Constitution (CDNDC), in a statement by the Co-Convener, Ariyo-Dare Atoye said any attempt by the present leadership to alter the existing tradition of appointing the CJN and other judicial heads to suit ethnic interest would spell doom for Nigeria.
According to the group, the consequences of ethnicising and politicising the judiciary would bring the nation to her knees.
“We must never allow this circle of impunity into our judicial system. When justice becomes ethnicised at the Supreme Court level to serve executive interest, we can as well kiss this country goodbye,” the group said.
Another group, Bini Lawyers Forum, accused President Muhammadu Buhari of plotting to sideline Justice Walter Onnoghen from becoming the substantive Chief Justice of Nigeria, CJN.
The group, in a statement in Abuja, alleged that the President deliberately refused to forward Onnoghen’s name to the Senate for confirmation owing to the fact that he is a Christian.
“The forum wishes to note with dismay the plot by some Northern interest/forces led by President Buhari to jettison laid down rules, procedure and convention in the appointment of the Chief Justice of Nigeria by the planned removal of Justice Onnoghen as the Chief Justice of Nigeria simply because he is a Christian and from the South-South zone of Nigeria, in order to pave way for the appointment of a Northern candidate.
“It is sad to note that the President has willfully and deliberately refused to act on the recommendation of the National Judicial Commission, NJC, by refusing to send the name of Justice Onnoghen as the Chief Justice of Nigeria to the Senate for confirmation, three months after the receipt of recommendation from the NJC.
“In line with the written script of the Northern forces as executed by the President, Justice Onnoghen was sworn in as the Acting Chief Justice of Nigeria in order to perfect their plan to oust him at the expiration of three months to pave way for a Northern candidate.
“We wish to note that Justice Onnoghen, who is presently the most senior Justice of the Supreme Court, by providence is the first Southern Justice of the Supreme Court to qualify for the position of CJN in about 30 years after the retirement of Justice Ayo Irikefe in 1987. It will be recalled that after the exit of Justice Irikefe, subsequent occupants of the position came from the North.
“In the light of the above, we humbly demand the immediate submission of the name of Justice Onnoghen to the Senate for confirmation as the substantive Chief Justice of Nigeria in line with the provisions of the Constitution.
We enjoin all well-meaning Nigerians to reject and condemn this dangerous precedent set by President Buhari in the governance of Nigeria, as the President has been driving governance on the wheel of ethnicity and religion since his assumption of office.”