By Friday, February 10, 2017, Walter Onnoghen, who was appointed as acting Chief Justice of Nigeria (CJN) in November, would have exhausted the constitutional three months in that capacity.
What would happen thereafter has been an issue of serious concern that has elicited some kind of adrenaline surge in many citizens who have questioned President Muhammadu Buhari’s decision, ab initio, to appoint him in acting capacity.
Some critics alleged that the Presidency may not have been transparent and also may have been nursing some plans that may see Onnoghen being shoved aside or denied the position eventually. This, critics say, is the crux of the matter.
The insinuations and anxiety were given impetus by the refusal of President Buhari to forward Onnoghen’s name to the Senate for confirmation in accordance with the constitution of the country.
With the dust the issue has raised in the last few days, the fate of the acting CJN is expected to be effectively determined as President Buhari, who has been on a two-week holiday in the United Kingdom, returns tomorrow.
In the thick of the agitation last week, Onnoghen had pleaded with Nigerians to sheathe their swords and allow the President a free hand to perform his constitutional duties as they affect his appointment in substantive capacity.
The fire was stoked by Onnoghen’s kinsmen in Cross River State who frowned at the development, threatening that they would resist any attempt not to confirm the acting CJN.
The 66-year old Onnoghen was sworn in as Nigeria’s acting CJN by the President on November 10, 2016, after his name was forwarded to the President by the Federal Judicial Service Commission (FJSC) under Mahmud Mohammed, the immediate past occupier of the seat. By constitutional demand, President Buhari is expected to decide Onnoghen’s fate by sending his name to the Senate for confirmation.
Dousing the tension
Femi Adesina, special adviser to the President on Media and Publicity, speaking with BDSUNDAY over the telephone, when asked about his boss’ plan for Justice Onnoghen’s judicial future, said that Nigerians must wait till the last minute to know where the presidential pendulum will swing.
“You said Nigerians are asking about the fate of Justice Onnoghen. Who are the Nigerians asking? What research have you done to arrive at the conclusion that Nigerians are asking? Everybody should wait until February 10 to know what will happen,” he said.
Constitution on CJN appointment
Section 231 (1) of the Constitution of the Federal Republic of Nigeria states: 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.
Subsection 4 provides 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.
Subsection 5 however states 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.”
Mike Ozekhome, Senior Advocate of Nigeria (SAN), constitutional lawyer and human rights activist, said rather than quietly forward Onnoghen’s name to the Senate as has been the tradition, President Buhari 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 November 11, 2016, the NJC was forced to fall back on section 231 (4), by sending Onnogen’s name to PMB on November 11, 2016, to swear him in, in an acting capacity.
“It is curious, is it not, that PMB would swear in Onnoghen (a Southerner), in an acting capacity, on November 11, 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”, laments Ozekhome, in an interview with BDSUNDAY.
He explained that 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 the former by clearly making the President a mere stop-gap purveyor of NJC’s recommendation to the Senate; noting that 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”, he says.
Buhari should do the right thing
Kayode Ajulo, civil rights activist, principal partner, Kayode Ajulo & Co. Castle of Law, said President Buhari needs to do the needful, since the Judiciary under the immediate past CJN did its own part by sending the name of the most qualified Judge to occupy the position.
“This is a constitutional provision. Buhari’s position as the President is also constitutional provision and what is expected of him is to obey the law of the land. The NJC has done their own part, because when you look at it very well, this appointment is one of the appointments where all the three arms of government will participate: the NJC representing the Judiciary nominates; the President representing the Executive send the name of the nominee to the Senate representing the Legislature for confirmation. Buhari cannot nominate CJN for himself. As it is now, everything on the matter is on the President to do the needful by following through the procedure”, he told BDSUNDAY.
He however, explained that when it comes to the issue of acting, it is more adjudication than constitutional, since the office in question is the highest office in the judiciary.
“I will not like us to colourate the matter with political innuendos and all of that. What we need to do is to tell the people advising the President to tell him to do the needful. I know the President is not a lawyer, but I know he has his lawyers surrounding him. They should advise the President to follow through with the process,” he said.
Monday Ubani, a former chairman of the Nigerian Bar Association (NBA), Ikeja branch, who is also one of the body’s vice presidents, said that Yemi Osinbajo, acting president, may send the name to the Senate before February 10.
He said: “You know VP Yemi Osinbajo recently met with the leadership of both houses of the National Assembly. This is still possible. I believe the Acting President is in constant touch with the President. If the three months in acting capacity expires, the CJN can continue with another three months, if he requests that from the President. The President can also fire the acting CJN, if he chooses to. When that day has come to pass and the President still did not send the nomination to Senate I will know what to say”.
Buhari’s slow approach responsible for conspiracy theory
Jiti Ogunye, veteran human rights activist, said quite unfortunately, the way the debates have been constructed in the public is on the familiar bases of north/south dichotomy, to politics, regional and zonal consideration, when on the contrary, President Buhari’s administration has been characterized by similar delays, which Nigerians should take him on.
“There is a provision for acting Chief Justice of Nigeria; so, let’s get that clear. What the President has done up till now is not illegal and unconstitutional. Before now, when Justice Ayo Salami was President of the Court of Appeal in this country, who was number three in the high ranking of the Judiciary at the time, was been abused around and harassed by the former president; there was an acting president for over a year, that didn’t generate all these debates about propriety of having an acting President of a Court of Appeal. We should stop this idea that Justice Onnoghen is being delayed because he is from the south”, he opined.
Expressing optimism that the acting CJN will eventually be confirmed, he reminded Nigerians that Justice Onnoghne would then not be the Chief Justice of Southern or northern Nigeria, but of the whole country, saying that Nigerians should rather take on the President’s unwanted delay in doing the needful.
“Here is an administration, that didn’t send the name of Ibrahim Magu to the Senate for confirmation, until he spent six months as acting chairman; and it was even the Vice President who is in Acting capacity as President that forwarded Magu’s name to the Senate. As it is now, many boards and parastatals are yet to be constituted. The other day: it was after one year of this administration that ambassadorial list was being sent to the Senate for confirmation. These are issues we can take the administration on; and we can see this Justice Onnoghen’s confirmation as part of that.
“Trump constituted his cabinet before he was sworn in; but it took our President over five months after he was sworn in before he constituted his cabinet. I have an issue with this slow, slow approach; this is the matter we should talk about. Why do you need to delay until three months after to do what you can do today? Why do you delay so much in a mandate of four years? At the end of your tenure, Nigerians will certainly ask you what you have achieved in office. I don’t understand why the President is taking key decisions when the economy is suffering,” he said.