A Constitutional Breach by the Executive – Okutepa

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Historically

“For the first time in the history of the transition of the Supreme Court, this is the first time that we are having an acting Chief Justice of Nigeria (CJN). It is not good for the stability of the Judiciary.

“It is not politically expedient for the President to do what he is doing now, because Nigerians are more sophisticated now. They ask questions and a lot of political meanings are being read into this appointment.

“This Acting CJN has been on the Supreme Court Bench. This is a man called to the Bar since 1978. So what reason does Mr President have, not to submit his name to the Senate?

The Constitution

“Constitutionally, I do not think that the President can just keep quiet and not revert to the National Judicial Commission (NJC) or the Senate. He owes the entire nation a duty to say “look, I’m not appointing this person; this is the reason”. We are entitled to know why a person who has gone through a process at the Federal Judicial Service Commission (FJSC), who has gone through a process at the NJC, and who has been recommended to the President, has not been appointed. He is duty bound to explain why he is not appointing, because the NJC has become functus officio. It cannot recommend any other person, until the President either accepts or does not accept this one. In the case of non-acceptance, when the reasons for the decision are made known, Nigerians must be able to verify them. The NJC submitted only one name, which effectively limits the choice.

“The appointment of the CJN is governed by Section 231 of the 1999 Constitution. There is no provision for political considerations and it could be dangerous for us to read a political meaning into the appointment to the office of the CJN. Nigeria is not like USA, where Judges are members of political parties. I am not aware of any judicial officer in Nigeria that is a member of any political party. So the President has no political choice to make. This is more of a constitutional breach on the part of the Executive.

“The President cannot reject the name of his Lordship, Honourable Justice Walter Nkannu Samuel Onnoghen and submit another name that is not recommended, because it is a tripartite or even a four-way constitutional procedure. The FJSC advices the NJC that outside the name of Lord Justice Onnoghen, this is the person we have recommended. NJC would then meet to consider that person and then recommend that person to Mr President. Mr President will then have to appoint that person, subject to confirmation by the Senate. So until that step by step procedure is taken as set out in the grundnorm, the Constitution, any type of appointment will be unconstitutional, an aberration. Therefore, I do not think that the President will do so, because he has no constitutional power to do so.

“The Constitution provides that the acting appointment is for a period of three months. But the NJC can still, by virtue of Section 231(5) of the 1999 Constitution recommend that his Lordship should still continue in the acting capacity, and the President is duty bound to so appoint him. But if the NJC fails to do the re-recommendation, and the President maintains to do the re-recommendation, and the President maintains the lackadaisical attitude of not submitting his name, then the Constitution says that the next most senior Supreme Court Justice becomes the Acting CJN. And I only say that God forbid that this should happen, because that would create instability and unseriousness in the eyes of the International Community. It will be seen in their eyes, that a very serious arm of government which is supposed to be independent, is with respect, being subjected to political manipulation.

Acting CJN’s Policies

“The Acting CJN has rolled out judicial policies that some of us believe that if they are allowed to be implemented, would help the speedy dispensation of justice, especially in the commercial sector, in this country. If we have a pragmatic CJN who has rolled out good policies, one would expect the Executive who has a constitutional responsibility to send his name, so that the man can sit down to see to the effective and effectual implementation of these policies, so that we can have quick economic recovery via court decisions, and not the hitherto delay in administration of justice.

“The Bar has spoken that delay is dangerous and we have no cause to say that the Bar is wrong.

Federal Character

“There is a federal character provision in our constitution that says that appointments to various offices, including judicial officers, shall reflect federal character. It is not politically expedient for the President not to do the appointment, because people are now speculating political exclusion even though the office of the CJN is not a political office. But people believe and rightly so, that his Lordship is not being considered because of the geographical place where he comes from. Whether this is right or not, that is the perception.

“This government has so many wars to contend with, the war of poverty, the war of the belief of the Nigerian people that the suffering that they are facing now is a function of ineptitude of government. Whether this is right or not, that is the people’s perception.”

Jibrin Okutepa, SAN