The issue of confirmation of Justice Walter Onnoghen as substantive Chief Justice of Nigeria (CJN) has dominated national discourse in recent times, SUNDAY EJIKE looks at factors surrounding the office of CJN.
IN accordance with known procedures in the appointment of the head of the nation’s judiciary, the National Judicial Council (NJC) presents the name of the most senior Justice of the Supreme Court to the President for appointment as the Chief Justice of Nigeria (CJN), after the endorsement of the appointee by the Senate.
The NJC, being the body responsible for recommending appointment into the office of the highly exalted position in the judiciary, at its emergency meeting held on October 11, 2016, forwarded the name of Justice Walter Nkanu Onnoghen to President Muhammadu Buhari, before the compulsory retirement of the immediate past CJN, Justice Mahmud Mohammed.
Mohammed bowed out of the nation’s judiciary on November 10, 2016, after attaining the retirement age of 70 years, according to Section 231 of the Constitution.
Onnoghen, who is a native of Biase Local Government Area of Cross Rivers State, was born on December 22, 1950. He has been a Justice of the Supreme Court since 2005 and he is the most senior of the three Justices considered for appointment into the position of the CJN.
The two others are Justice Ibrahim Muhammad and Justice Sulieman Galadima. The former was born on December 31, 1953 at Doguwa-Giade, Giade Local Government Area of Bauchi State and was appointed to the Supreme Court bench on January 7, 2007 while the latter was born on October 1946 in Nasarawa State and was appointed a Justice of the apex Court in 2010.
However, instead of the president to forward Onnoghen’s name to the Senate for approval as the new CJN, he asked the Senate to approve Onnoghen’s appointment in acting capacity, with the constitution stipulating a maximum tenure of three-months in acting capacity before approval as a substantive CJN.
This is the first time the holder of the office is appointed in acting capacity for such a length of time in recent times.
Onnoghen has till February 10, 2017 to get his appointment validated by the National Assembly or be removed from office, according to a section of stakeholders in the judiciary. The stakeholders are concerned that the uncertainty on whether Justice Onnoghen would be the substantive CJN or not, might impede justice administration and judicial reforms in the country. This development, observers noted, also confirms the worries from different quarters that there are grand plots to deny Justices from the Southern part of Nigeria the opportunity of heading the apex court in Nigeria.
The delay in sending Onnoghen’s name to the Senate for confirmation has continued to raise fears about his fate, particularly as he inches closer to the three-month stipulated tenure and the Senate that is supposed to endorse his appointment is presently on break and will resume plenary session on February 23, 2017, by which time the three months period allowed by law for Onnoghen to act would have elapse. Section 231 (1) of the 1999 Constitution explicitly provides that: “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.”
Subsection 4 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 has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.
Subsection 5, however, provides that: “Except on the recommendation of the NJC, 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-appoint a person whose appointment has lapsed.”
Some who have expressed their views on the development maintained that unless Justice Onnoghen’s name is forwarded to the Senate and he is confirmed, he would cease to be the acting CJN from February 10, 2017 and that the president’s failure to forward Onnoghen’s name to the Senate, long after his recommendation, is dangerous to the judiciary and the nation at large.
Former president of the Nigeria Bar Association (NBA), Chief Wole Olanipekun (SAN), warned that denying Onnoghen the office would not only endanger stability and peaceful succession at the apex court but, will also affect justice administration in the country negatively. He, therefore, urged the president to respect the constitution.
He said: “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 CJN.
“The Judiciary is 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 CJN without any further delay”.
The chairman of the Presidential Advisory Committee Against Corruption, Professor Itse Sagay (SAN), in his comment on the issue, however, disagreed with the view expressed by Chief Olanipekun (SAN) that the president should be blamed for the delay in confirming the appointment of Justice Onnoghen as the substantive CJN.
Sagay, in an interview, said the debate in Onnoghen’s confirmation as CJN had taken every dimension possible including accusing the Federal Government of trying to suppress the right of one part of the country in favour of another.
In his words: “The appointment of the CJN is provided for in Section 231 of the Constitution. Basically, it provides that the president is the appointor. But for him to appoint, he must receive a recommendation from the NJC after which he forwards the name of the appointee to Senate for confirmation. Thus, under normal circumstances, when he receives the recommendation of the NJC, he should, if he is satisfied with the nomination, pass on the name of the nominee to Senate for confirmation”.
He, however, noted that president is not compelled to pass on a nomination coming from the NJC to the Senate without discretion, input or without the right of rejecting such an appointment and calling on the NJC to send other nominations.
Sagay said: “The truth of the matter is that both the president and the Senate have a right to reject nominations of any person for appointment as the CJN. The president in particular can turn down the recommendation of the NJC and request that another name be recommended. The president is not a rubber stamp of the NJC’s recommendations or a robot for the conveyance of recommendations from the NJC to the Senate.
“This is where the President’s power to appoint an Acting Chief Justice becomes important. By Section 231(4) of the Constitution, the president has the power to appoint the most senior Justice of the Supreme Court in an acting capacity until a substantive Chief Justice is appointed. But such an appointment lapses after three months and the president cannot re-appoint the same person as acting CJN unless he receives a recommendation to that effect from the NJC. Therefore, since at the time the acting appointment of Justice Onnoghen was made, the office of the then CJN was vacant, that appointment was validly made.
“There have been extreme agitation and frenzy over the failure of the president to send Onnoghen’s name for confirmation, literally within seconds of receiving the NJC’s recommendation. These agitations have exhibited ignorance, bad faith or down-right primordial motives. The crossroads in which we find ourselves today is entirely of the making of the NJC and the legal profession as a whole. Since the appointment of the Attorney-General, the Hon. Justice Taslim Elias in 1973, and the appointment of the Hon. Justice Augustine Nnamani also Attorney-General a few years later, straight to the Supreme Court from outside the Judiciary, all that has been happening in this country is in-breeding within the Judiciary, whereby a person is appointed Judge of the High Court and after marking time as a good boy or girl, he is appointed to the Court of Appeal and after marking further time as a good boy or girl at the Court of Appeal, he is elevated to the Supreme Court. So it has been a turn by turn syndrome. Today, once you arrive at the Supreme Court, if there is no younger man amongst those already appointed before you, you can calculate to the exact second when you are going to be the Chief Justice of Nigeria.
“So the system is devoid of the merit, achievement and quality of the character of the appointees. Its all automation as you ride on the judicial escalator from High Court Judge to the Supreme Court and then the position of CJN.
“With the above background of inbreeding, absence of merit and later corruption, would it be responsible for the president to automatically, in a robot like manner, transmit every name received
from the NJC to the Senate? The answer is a solid NO. This is where appointment as Acting Chief Justice is important. It gives the president the opportunity of studying the appointee for Chief Justice of Nigeria for a period of three months in order to determine for himself whether the recommendation was justified. This load has fallen on the President because of the failure of the NJC to exercise due diligence in the past when making recommendations to the president. From my own perspective without any privileged information, I believe that this is the process ongoing right now”, he added.
But another constitutional lawyer, Sebastine Hon (SAN), said President Buhari’s delay in processing the confirmation of Justice Onnoghen was “scary, to say the least,” urging the president to formally appoint Justice Onnoghen and immediately forward his name to the Senate for confirmation, to avoid creating a North-South imbalance in the sharing of federal positions and to also reassure the judiciary that it is not being deliberately maligned.
Speaking on the development, Rotimi Oguneso, also a Senior Advocate of Nigeria, viewed the president as “having a penchant for stirring up needless controversies,” saying “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. 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 time, do 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?
For another senior advocate, Samson Ameh, the situation is not one that cannot 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,” Ameh said and advised the presidency to ‘act in order to avoid a constitutional crisis.’
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 will spell doom for Nigeria.
With barely a week to the expiration of his appointment in acting capacity, some Nigerians are arguing that the National Assembly can without waiting for the President’s letter, go ahead and confirm him as the substantial CJN, 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-appoint a person whose appointment has lapsed.”
In essence, Justice Onnoghen, if not confirmed would leave the office on February 10. This is the first time the holder of the office is appointed in acting capacity for such a length of time in recent times. But political observers have stated that the delay in the confirmation of Onnoghen has also opened a new chapter in the pages of people who believe that the Buhari Presidency had been favouring a section of the country to the detriment of the other.
Curiously, the next in rank to Justice Onnoghen is a Northerner, Justice Ibrahim Tanko Muhammad from Bauchi State. Many stakeholders are of the view that government’s failure to do the needful as far as the appointment of a new CJN is concerned “gives room for lobbying and speculations, which are unhealthy for any system.”
President Buhari, they noted should send the name of Justice Onnoghen to the Senate for confirmation as further delay would lend credence to the suspicion that the Presidency does not want to have a southerner emerge as next CJN. This insinuation has been rife, as Justice Onnoghen is the first southerner, in 29 years, to be acting CJN. In the last 29 years, eight justices of the Supreme Court from the Northern part of the country have taken turns in occupying, one after another, the office of the CJN. Justice Ayo Irikefe, who retired in 1987, was the last southerner to occupy the position. The fact that eight northerners have occupied the office of CJN back-to-back, in the last 29 years, says much about the appointment of justices of the Supreme Court, analysts said, noting that it would pay Nigeria better if President Buhari follows the widely accepted norm in the emergence of the CJN. Since the most senior justice of the Supreme Court has always emerged as the new CJN.