Onnaghen: Clarifying the issues

PRESIDENT Muhammadu Buhari’s reluctance to forward the name of Justice Walter Samuel Nkanu Onnoghen to the Senate for confirmation as the substantive Chief Justice of Nigeria is generating serious concerns across the country. Many people have expressed the view that the President’s action is in tandem with his perceived anti-southerners tendencies. Consequently, Afenifere, the pan-Yoruba socio-political group, as well as some other southern interests have spoken against this and given the President an ultimatum to send Onnoghen’s name to the Senate.

Those giving the Onnoghen matter tribal colouration readily remind the nation that a southerner had not been the CJN since 1987 when Justice Ayo Gabriel Irikefe bowed out of the apex court. Since then, seven northerners have held the position. They remind the nation that this is the first time a CJN would serve in acting capacity for such a long time. They also point to the fact that should the President sideline Onnoghen, the next person in line is a northerner, who the President would have no qualms appointing as CJN.

The President’s inaction about Onnoghen’s appointment as the substantive CJN is also being given religious tainting as quite a number of Nigerians have said that President Buhari would not have hesitated to appoint Onnoghen were he to be a Muslim. The Onnoghen matter seems to be gaining much space in public discourse because his three-month acting appointment will lapse on February 10.

While there is no doubt that Nigerians, as usual, have reduced this appointment to a religious and tribal issue, it is a matter that transcends such primordial sentiments. It is a matter which, unless handled properly, has the capacity to precipitate a constitutional crisis. It is a matter that can put to question our observance of the principle of separation of powers. It is a matter that can cast doubts in the minds of many people as to the equality of Nigerians.

Section 231 (1) of the Nigerian constitution, as amended, says “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 (NJC) subject to confirmation of such appointment by the Senate.”

This constitutional provision is so clear and straightforward that nobody needs a Rotimi Williams or Gani Fawehinmi or Teslim Elias or even Lord Denning (the celebrated English judge) to interpret it. The role of each of the bodies involved in the process of appointing a CJN is so clearly stated that only mischief could result in misinterpretation.

The NJC is to recommend, the President is to appoint and the Senate is to confirm. It is expected that before the NJC would recommend, there would have been deliberations and debates to arrive at a final decision. Similarly, before the Senate would confirm, there could be scrutiny and questioning. So, the real work, when it comes to the issue of appointing a CJN, is between the NJC and the Senate. The role of the President is merely that of transmitting the recommendation of the NJC to the Senate. Once the NJC makes a recommendation, the President is to appoint and allow the Senate to decide on whether to confirm the appointment or not.

The President, according to the constitution, merely serves as the channel through which the appointment is made. The President does not have any option other than act on the recommendation made by the NJC. He can neither change nor reject the recommendation. If the President has any issue with the recommendation of the NJC, the only thing he can do is to convey this to the Senate and probably persuade the lawmakers against confirming the appointment.

I have gone over Section 231 several times and I fail to see where the constitution empowers the President not to act on the recommendation of the NJC. And I believe this was deliberately done by the crafters of the constitution. The three arms of government must be clearly independent to prevent the usurpation of the power of one of the arms by another. Those who crafted the constitution tried to avoid a situation in which the head of the judiciary will feel beholden to the President because of his appointment. Real independence of each of the arms is established when the head of the executive branch cannot influence the appointment of the head of the judiciary or even the head of the legislature. That definitely must have been the consideration of the crafters of the constitution.

This constitutional provision is so uncomplicated that it is so confounding and disconcerting that anyone will have a challenge with its correct interpretation. Though the President is not a lawyer, he is surrounded by an army of lawyers. This administration is probably the one with the highest number of lawyers ever in this country. So, why is it so difficult to give the President the right counsel in matters as straightforward as this? Why must we continue to heat up the polity on issues as pedestrian as this? The fact is that by not forwarding Onnoghen’s name to the Senate for confirmation, the President is arrogating to himself the powers the constitution has not given him.

Therefore, it is my considered opinion that the non-appointment of Onnoghen by the President after the recommendation of the NJC is a clear violation of the constitution. The earlier this is rectified the better for the country.