Executive Briefing
Next week, the three months tenure of Justice Walter Nkanu Onnoghen as acting Chief Justice of Nigeria will expire, raising questions on why President Muhammadu Buhari has still not taken steps to confirm him in a substantive capacity. Davidson Iriekpen writes
Few days to the expiration of the three months tenure of Justice Walter Nkanu Onnoghen as the acting Chief Justice of Nigeria (CJN), there is anxiety in the judiciary over the failure of President Muhammadu Buhari to forward his name to the Senate for confirmation in substantive capacity as the head of Nigeria’s judiciary.
Onnoghen was sworn as acting CJN precisely on November 10, 2016 following the retirement of Justice Mahmud Mohammed, who attained the mandatory retirement age of 70.
Ordinarily, the appointment should not raise any issue but in the face of the existing circumstances, even those in the judiciary are becoming suspicious. Many observers feel that the president simply appointed him in acting capacity to ease off pressure.
The National Judicial Council (NJC) had on October 6, 2016 recommended Onnoghen to President Buhari as the successor to Justice Mohammed. But rather than immediately forwarding the name to the Senate for confirmation, the president kept the nation in suspense till when he appointed him in acting capacity on November 10. By February 10 the appointment will lapse based on constitutional provision.
Though analysts believe that the president has the powers to appoint a CJN in acting capacity, they however argued that there was no constitutional basis for Onnoghen to be appointed in acting capacity when the coast was very clear for him to be appointed in full capacity, based on the recommendations of the NJC and subject to confirmation by the Senate Section 231(1) of the 1999 Constitution (as amended).
Section 231 (1) of the 1999 Constitution (as amended) gives the president the power to appoint the CJN on the recommendation of the NJC subject to confirmation by the Senate. Section 231 (4) of the Constitution provides that where the office of the CJN is vacant or the person holding the office for any reason is unable to perform the functions of the office, the president shall appoint the most senior justice of the Supreme Court to perform those functions until a person is appointed and has assumed the functions of that office.
Without doubt, Justice Onnoghen is currently the most senior justice of the Supreme Court. The argument in different quarters is that in all the instances where the constitution talked about offices being vacant, and that the courts have interpreted such provisions, vacancy has always implied death, resignation, impeachment or any similar situation and not a generally expected expiration of tenure.
The argument is predicated on the fact that the retirement age of Nigerian judges is easily traceable with their age and birthdays. Justices of the Supreme Court, including the CJN, vacate the office upon reaching the age of 70. Just as members of the public do, all present members of the bench know the respective days they will quit office and so does the president.
With the expiration of his tenure on November 10, 2016, being an open secret, the immediate past CJN as the Chairman of the NJC had supervised the replacement process as required by the constitution. He forwarded the NJC’s recommendation of Justice Onnoghen as the next CJN to President Buhari on October 14, 2016 but unfortunately, three months after, the president has failed to transmit a letter to seek the approval of the Senate for that appointment.
In appointing the last CJN, Justice Mohammed, the NJC sent its recommendation to former President Goodluck Jonathan on October 29, 2014 and by November 12, 2014, Jonathan had sent a letter to the Senate for approval of Mohammed’s appointment. The Senate confirmed the appointment on November 19, 2014 and so by November 20, 2014 when Justice Aloma Mukhtar was bowing out of office, there was a substantive successor in place.
Same was the case when Jonathan appointed Justice Mukhtar to replace Justice Dahiru Musdapher as CJN. The former president had sent her nomination as CJN to the Senate on July 4, 2012 which confirmed her appointment on July 11, 2012. By July 15, 2014 when Justice Musdapher was exiting the office, there was a substantive CJN.
This is why the current refusal by President Buhari to appoint Justice Onnoghen is raising dust. Recall that a few months to the retirement of Justice Mohammed, tension had enveloped the judiciary over alleged plans to truncate the seniority rule at the Supreme Court.
Investigations had revealed that some forces were plotting to alter the seniority rule that would probably see Onnoghen, who was the second-in-command at the Supreme Court, take over after Justice Mohammed retired from the bench on November 10. The forces trying to truncate the seniority rule at the apex court had argued that anybody appointed to be CJN must not necessarily be the most senior justice of the Supreme Court.
Part of the reasons why the forces were against Onnoghen’s ascension to the CJN office, it was gathered, was because they were not favourably disposed to having a southerner as a CJN for a whopping four years, and the allegation that members of the ruling All Progressives Congress (APC) in the South in collaboration with their northern cohorts want to have adequate control of the judiciary ahead of the 2019 elections.When confirmed, Justice Onnoghen would be the first CJN from the southern part of the country in 30 years. The last southerner as CJN was Justice Ayo Irikefe, who held the position between 1985 and 1987.
The plot further gathered momentum when the APC expressed anger with the Supreme Court’s favourable verdict for the opposition Peoples Democratic Party (PDP) in most South-south states. Sources said the party is still shocked that the Supreme Court decided against its governorship candidates in Rivers, Akwa Ibom, Taraba, Delta and Abia States.
Against this backdrop, there is a strong perception in the APC that the current crop of Supreme Court justices are pro-PDP and any attempt to make one of them the CJN would spell doom for the ruling party in future elections. They also alleged that the justices of the court are corrupt and should be headed by someone from outside, who is comfortable and cannot be tempted cheaply.
As a final push to stop him from assuming the exalted office, analysts recently alleged that Justice Onnoghen was a target in the recent raid on the houses of judges but by a stroke of providence, operatives of the Department of State Services (DSS) who conducted the raid, missed his residence.
By refusing to transmit a letter to the Senate seeking approval for Justice Onnoghen’s appointment based on the recommendation of the NJC for over three months now, observers have argued that the president has not only unwittingly cast doubts on the value of that process, but has also strengthened the fears that there might indeed be plans to upturn the succession arrangement which has been followed at the Supreme Court over the years. But to what end?
First to raise fears that Justice Onnoghen may not be confirmed was the Ekiti State Governor, Mr. Ayodele Fayose. He expressed reservations over the non-appointment of the jurist as the substantive CJN, claiming that his appointment in an acting capacity was “a grand plot to deprive him of his well-deserved appointment as CJN because he is from the South-south region.”
The governor also raised the alarm over those he branded ‘the cabal’ at the Presidential Villa, saying they might want to hold him (Onnoghen) by “the jugular, using his confirmation as substantive CJN to get him to assist them to pervert justice.”
In a statement issued in Ado-Ekiti by his media aide, Lere Olayinka, Fayose said it was strange that despite the fact that the NJC recommended only Justice Onnoghen to Buhari for appointment as the CJN, in line with its rules since October 14, 2016, his name was not sent to the Senate for confirmation.
He said this was the first time Nigeria would have an acting CJN despite the fact that Justice Onnoghen’s name was sent to Buhari early enough. He lamented that the presidency has subdued the National Assembly and is now in the last stage of muscling democracy by subduing the judiciary.
“At the time the NJC recommended Justice Onnoghen to President Buhari, it was 28 clear days to the November 10, 2016 retirement date of Justice Mohammed. Why then was his (Justice Onnoghen) name not sent to the Senate for confirmation? Why appoint him as acting CJN when his name should have been sent to the Senate between October 13, 2016 when he was recommended to the president and November 10, 2016 when Justice Mohammed retired?
“Obviously, there is more to this acting CJN appointment than meets the eye, and in my opinion, it could be that President Buhari never wanted Justice Onnoghen as a substantive CJN because he is from the South-south, or they want to use his pending appointment as substantive CJN to make him do their bidding,” the governor said.
Apart from Fayose, a cross-section of lawyers who have reacted to this issue in the past had faulted the refusal of the president to do the needful on the confirmation of Justice Onnoghen.
Speaking on the matter, shortly before the expiration of the tenure of the former CJN, a Senior Advocate of Nigeria, Sebastine Hon, described Buhari’s delay in processing the confirmation of Mr. Onnoghen as “scary, to say the least.”
According to him, “The name of Justice Onnoghen, the next most senior justice of the Supreme Court, has since October, 2016 been forwarded to the president, who is expected, constitutionally, to forward it to the Senate for confirmation. Till this moment, Mr. President has not forwarded Justice Onnoghen’s name to the Senate for confirmation. This is scary, to say the least.”
Speaking on Channels Television Sunrise programme recently, a renowned professor of law. Akin Oyebode, had viewed the president as “having a penchant for stirring up needless controversies.” He wondered why it is taking the president time to send the name of the acting CJN to the Senate for confirmation and keeping the nation in suspense.
On his part, a human right lawyer, Ebun-Olu Adegboruwa, has called for the intervention of the Nigerian Bar Association (NBA), saying the body should urgently take steps to mobilise all lawyers and judges to demand for the appointment of Justice Onoghen as the substantive CJN. He said it would be unfortunate for the country if the most senior justice of the Supreme Court is not allowed to take over as CJN.
“By section 233 of the 1999 Constitution, the most senior justice of the Supreme Court ought to be appointed as the Chief Justice of Nigeria, upon the recommendation of the NJC. The NJC forwarded only the name of Justice Onnoghen to the president, for presentation to the Senate for confirmation. The president has sat on that name even as the period for which Justice Onnoghen will function in office as acting CJN will soon expire.
“This is about the first time in the history of this country that a sitting president is openly defying the judiciary. Sections 4, 5 and 6 of the Constitution prescribes a separation of powers between the executive, legislature and the judiciary. It would seem that the Buhari administration has an axe to grind with the judiciary generally. Right from its inception, the president had always stated that the judiciary was his headache. And with the ways that judges are being humiliated and harassed, then one is little surprised that the president is pleased to function without the judiciary.
“It will be totally unfortunate for our nation, should the most senior justice of the Supreme Court not to merit appointment as CJN. It is a collective challenge for all lovers of democracy to demand for the immediate appointment and sin of the acting CJN. The judiciary cannot continue to function without its leader, as this will affect the appointment and discipline of judicial officers and even cases in the apex court will suffer as a result of such likely vacuum. I therefore call upon the Nigerian Bar Association to urgently take steps to mobilise all lawyers and judges to demand for the appointment of Justice Onnoghen as the substantive CJN,” Adegboruwa said.
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There is more to this acting CJN appointment than meets the eye, and in my opinion, it could be that President Buhari never wanted Justice Onnoghen as a substantive CJN because he is from the South-south, or they want to use his pending appointment as substantive CJN to make him do their bidding
