Why Buhari Has Not Forwarded Onnoghen’s Name to Senate for Confirmation as CJN

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Olawale Olaleye

President Muhammadu Buhari may not send the name of Justice Walter Samuel Nkanu Onnoghen to the Senate for confirmation as Chief Justice of Nigeria until he is given a clean bill in the ongoing investigation of judges by security agencies, THISDAY has learnt.

Onnoghen was sworn in as acting Chief Justice of Nigeria November 10, 2016. The 1999 constitution stipulates a maximum tenure of three-month in acting capacity.
The delay in sending his 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.

Section 231 (1) 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 provides 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.”

Though shortly after the raid on residences of some judges last year over by the Department of State Services over allegations of corruption, the agency had claimed that Onnoghen was not on the list of those being investigated, a State House source told THISDAY that investigation of Supreme Court judges was ongoing but it could not be confirmed which among the security agencies was saddled with the investigation.

“As we speak, there is an ongoing thorough investigation of the justices of the Supreme Court and I am sure Onnoghen is among. The president won’t therefore send his name for confirmation until he is cleared by the security. There is nothing personal in this. The president is just being careful because that office is central to the successful fight against corruption.”

The source however added: “But in case he failed, which I pray is not the case, one thing the president has promised to do is to make sure that whoever succeeds him comes from the South-south region of the country. That simply means the president does not have any ethnic agenda as being insinuated now and we should allow the current investigation of the Supreme Court justices berth safely.”

The source, who frowned on the insinuation of ingratitude against the president since Onnoghen was one of the three justices, who dissented in his favour during the 2007 presidential election petition hearing, however said, “That was Onnoghen doing his job and he did it well. Should the president not do his own job well too? The fact that he voted in favour of the president in 2008 does not mean Buhari should overlook weighty allegations against him if there are any. There is nothing personal here. It is about due process.”

Onnoghen has spent not less than 38 years in the legal profession, although a greater part of his experience has been on the bench, having spent nine years as a judge of the Cross River State Judiciary (1989-1998), seven years as a Justice of the Court of Appeal (1998-2005) and 11 years as a Justice of the Supreme Court of Nigeria (2005-date).

He is generally believed to have portrayed himself as an upright and impartial arbiter in matters of the law and this much is said to be proven by his dissenting judgment on December 12, 2008, along with Justices George Adesola Oguntade and Aloma Mariam Mukhtar on the election petition filed by Buhari, then candidate of the All Nigeria Peoples Party (ANPP) in the 2007 presidential election, against the declaration of the late President Umaru Musa Yar’Adua as the winner.

Although their judgment could not upturn Yar’Adua’s victory, the trio made a bold statement of their inclination to fairness in the dispensation of justice. Thus, the recommendation of Onnoghen by the National Judicial Council (NJC) to Buhari to take over from the immediate past CJN, Justice Mahmud Mohammed, was seen as in order.
But the delay in sending Onnoghen’s name to the Senate for confirmation as substantive CJN by the president has since stoked speculations in the polity.

Ekiti State Governor, Ayo Fayose, was the first to raise eyebrows, when he said in a statement that Onnoghen’s appointment as acting CJN was either a grand plot to deprive him of his well-deserved appointment as CJN because he is from the South-south region or that the cabals in Aso Rock wanted to hold him by the jugular and use his confirmation to get him to assist them to pervert justice.
A Lagos-based legal practitioner, Chief Malcolm Omirhobo had even dragged Buhari before Abuja Federal High Court over his refusal to make Onnoghen the substantive CJN.

Omirhobo sued for himself and on behalf of the generality of Nigerians. Joined as co-defendants in the suit are the Attorney General of the Federal Republic of Nigeria, The Federal Judicial Service Commission, Hon. Justice Walter Nkanu Onnoghen, Chairman of the National Judicial Council and the National Judicial Council.
Against the background of the stipulations of Sections 231 (1, 4,5), the Second Vice President of the Nigerian Bar Association, Onyekachi Ubani, said recently that the action of the President was constitutional.

“The provision of the constitution allows the President to appoint a qualified person to the position of CJN in acting capacity for three months. But the constitution says that after three months, he cannot re-appoint that same person.
“So, my thinking with regards to what is going on now is that pending the time the President will send the name of Justice Onnoghen to the Senate for confirmation, he can be in an acting capacity. I have no reason to doubt that the President will eventually send his name to the Senate for confirmation. But there are speculations that he may not.

“And of course the constitution says that after the three months, that same person cannot be re-appointed. So, there is no room for renewal; it’s either you confirm him or you take him out and then bring in the person you want. But the man still has up to five years or thereabout in the Supreme Court to retire. So, taking him away may be that he will continue as an ordinary justice of the Supreme Court.
“But I think the President should be well advised because the process that threw up Onnoghen as explained by the immediate past CJN was very rigorous. The man has been in the Court of Appeal and now the Supreme Court for a long time. He has good credential, knowledge and comportment to serve as CJN.

“If the process that threw him up was very thorough and credible, the President has no choice than to send the name that has been recommended to him by the NJC to the Senate for ratification. I think that in all ramifications, he qualifies to be CJN.”