THE first in this series was on September 18. I deliberately delayed this follow-up to meet this moment that was almost not be-the eventual enthronement of Justice Walter NkanuOnnoghen as the new Chief Justice of Nigeria. I penned the first when the Federal Judicial Service Commission (FJSC) nominated him to the National Judicial Council (NJC) as the most fit and proper person to lead the nation’s troubled judiciary in these extra-ordinary times. NJC carried the nomination and recommended him solely to President Muhammadu Buhari as the person to take the system to a new height. The recommendation, which was about a month ago, was done in the heat of executive/judiciary face-off as fronted by DSS/NJC tango and what many insiders tensely expected, began to unfold.
As the appointing authority, Buhari simply applied brakes on the appointment process by refusing to send his name to the Senate for confirmation and not even deeming the recommendation from NJC, any acknowledgement. Both the executive and judiciary handled the waiting-game tension with commendable maturity. But it was certain something must give way as yesterday’s CJN, Justice Mahmud Mohammed moved close to his exit point. Fortuitously, Gibbers had a first-hand, eye-witness watch of tumbling events of last Thursday that birthed the reluctant Friday swearing-in at Aso Rock Villa.
Expectedly, Nigerian Tribune was the first anywhere in the world to break the story. The last-minute, behind-the-scene maneuvers that delivered Onnoghen would be told in details later.
Stories abound over Buhari’s vacillation on Onnoghen. Gibbers heard both titillating and torrid tales from political and judicial circles. Those tales would go with the horse-trading stuff next time. But since nothing official has emanated from the presidency, there are two choices here; go with grapevine salacious but rootless conjectures and outright fabrications or simply assume that the president wasn’t just ready for the appointment in substantive capacity. I stay with the latter.
The only snag with just believing that there were no games from Buhari’s end, is that the deafening silence from the presidency on the inexcusable delay in either accepting or rejecting NJC’s recommendation, that almost got the nation into another round of needless constitutional crisis (someone somewhere planned to do something very drastic if Buhari hadn’t consented on Thursday to swear Onnoghen in), is the creation of new band of social commentators and analysts who have been on a spin, saturating the entire stratosphere with a combination of a pinch of truth, large dose of half-truth, decked-to-hilt lies, all bound in humongous ignorance.
That is what you get when you hold on to a faulty procedure. There appears to be something inherently deficient in Buhari’s mode of appointment. The only ones that escaped the usual controversy were his personal aides whose genealogy has been traced to his household. Is it a deliberate act to make it difficult for non-family members, particularly from outside his Northern zone? Or is it because those appointments running into hitches are constitutional in nature? While Mr President can be forgiven for not understanding that the main essence of having a constitution is to prevent the type of near-meltdown over Onnoghen, his legal handlers can’t be exonerated. Democracy is about constitutional governance. I hope the president doesn’t have too many advocates of suspend-the-constitution-to-govern-well around him. Or does the president simply get his kick from being kicked?
The argument over the constitutionality of Onnoghen’s acting appointment is needless. While it is certainly unprecedented for an available appointing authority to go for last-minute acting engagement at the CJN level, Buhari’s action isn’t unconstitutional. He is empowered by Section 230 (4) of the 1999 Constitution, to appoint the most senior justice of the Supreme Court as acting CJN if the seat is vacant. The only brief acting appointment was during the controversial sick leave abroad of late President Musa Yar’Adua, with then former Vice President Goodluck Jonathan without constitutional authority to act. Outgoing CJN IdrisLegboKutigi swore in successor Aloysius Katsina-Alu on his valedictory to avoid a vacuum and constitutional crisis. A constitutionally-empowered Jonathan later perfected the process. The spin-doctors, comparing the two scenarios, if conscientious, should know they are not analogous. Buhari was available and not constitutionally disabled. He simply didn’t want to complete the process and only he can tell his reasons.
The moral of Buhari’s way with the controversial appointment should condemn him and his team. Instead of employing the dangerous silence strategy which numerous interpretations could cost the nation dearly, considering the fragile balancing surrounding Onnoghen’s candidature, his religion and Niger-Delta race as well as the ethnic imbalance that has trailed appointments to the CJN office in the last 30 years, the reputed tough president should have shown balls by being definite on his decision concerning the recommendation from NJC. The constitution so empowers him. He isn’t under constitutional obligations to accept NJC’s recommendation but he isn’t also constitutionally-enabled to side-step the council in appointing a new CJN.
If there are verifiable grounds of objection, Buhari can reject Onnoghen and write the council accordingly, furnishing it with empirical evidence of Onnoghen’s unsuitability for the office since there are condition-precedent listed by the constitution. It is doubtful if NJC would reject such an outcome, with undeniable proof.
Buhari’s walling is more of cowardice considering the consequences of speaking out. It also in a way confirms the suspicion of an agenda of whichever kind; to stop either the Ag. CJN as a person, his Niger-Delta race, Southern Nigeria or his religion (he is the second Christian CJN in about half a decade, the first being Katsina-Alu) from taking the seat. Even some governors, including a couple who are now Buhari’s allies, have demonstrated better courage than Mr. President in matters like this.
(To be continued)
and then