Walter Onnoghen

It’s time for the President to name the Chief Justice of Nigeria

Unlike the heads of the executive and legislative arms of government who are elected into office, the head of the judiciary is by appointment. And to avoid undue politicisation, the constitution 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.” Such is only done in acting capacity pending the substantive appointment to the position, which “shall be made by the President on the recommendation of the National Judicial Council (NJC), subject to the confirmation of the Senate.”

Meanwhile, in line with the provision of section 231 of the constitution, the NJC, headed by the immediate past Chief Justice, Mahmud Mohammed, had recommended to President Muhammadu Buhari the appointment of Justice Walter Onnoghen for the position. But instead of forwarding the name to the Senate, President Buhari decided to exercise his constitutional powers by appointing Justice Onnoghen as the acting CJN. The appointment, which is for a mandatory period of three months, will lapse this week Friday, February 10, 2017 although Section 231(5) of the constitution states that an acting chief justice can still be reappointed for another three months by the president on the recommendation of the NJC.

While the delay has been blamed by the Presidency on the ongoing investigation of the nation’s judges, including Supreme Court Justices, allegedly linked with corrupt practices, the explanation has been rejected by many interest groups who believe that the investigation, which commenced with the dramatic arrest of some judges in October last year, ought to have been concluded by now. That perhaps explains the widespread speculations that the presidency is scheming not to forward Onnoghen’s name to the senate for confirmation.

All the CJNs since 1979 were appointed on the basis of seniority. It is particularly noteworthy that all the eight appointed since 1987 were Northerners. This has led to the unfortunate conspiracy theory being widely propounded by senior lawyers that President Buhari may be plotting to reject the nomination of Justice Onnoghen so as to pave the way for Justice Mohammed Tanko, a northerner who is next in rank in the Supreme Court.

First, we must state that there is nothing unprecedented in appointing a CJN in acting capacity as President Buhari has done. In 2007, former Chief Justice Legbo Kutigi acted briefly due to the deferment of his confirmation by the senate. Section 231 of the constitution makes provision for such appointment but even that cannot excuse the tardiness with which the Buhari administration handles practically all critical appointments.

In as much as we do not support corruption, whether in the executive or judiciary, the vacancy in the post of the CJN should not be made to wait endlessly for some so-called security clearance. We cannot afford to treat the appointment like that of Mr. Ibrahim Magu who was allowed to hold the post of the Chairman of the Economic and Financial Crimes Commission (EFCC) in acting capacity for over six months before sending his nomination to the senate for confirmation only to be followed by a damning letter from the State Security Service (SSS) a few months later. Unfortunately, the federal government has not learnt any lesson from that embarrassing debacle that is yet to be resolved.

Coincidentally, Justice Onnoghen is the only serving senior judge to have ruled in favour of Buhari in his long march to the presidency. In 2008, Onnoghen joined Aloma Mukhtar and George Oguntade (both retired) in dissenting the outcome of the 2007 presidential election, in which the late Umaru Musa Yar’Adua was declared winner. The only other judge to have ruled in Buhari’s favour, Justice Sylvanus Nsofor of the Court of Appeal, now also retired, was recently nominated to the ambassadorial list, along with Oguntade.

Therefore, in view of the unnecessary controversy which the delay in the appointment of the CJN has caused, we call on President Buhari to send Justice Onnoghen’s name to the senate for confirmation this week. Even though the senate is on recess, we appeal to the senators to convene an emergency session for the confirmation hearing. And the federal government must put its house in order by ensuring that the nomination is not frustrated in the senate by any diabolical security report.

QUOTE: In as much as we do not support corruption, whether in the executive or judiciary, the vacancy in the post of the CJN should not be made to wait endlessly for some so-called security clearance