Onnoghen: Hoping justice is not delayed, denied
The appointment of Justice Walter Onnoghen as the Chief Justice Of Nigeria (CJN) on acting capacity by President Muhammadu Buhari, has continued to elicit reactions in the polity. The development has also created room for speculations among the people.
Already, there were insinuations that Mr. President had not acted in good faith by not transmitting Justice Onnoghen’s nomination to the Senate for screening and confirmation. Recall, that Nigeria Judicial Council, emerging from their meeting of October 11 forwarded the nomination of the most senior Justice of Supreme Court, Justice Onnoghen, to the President as stipulated by law. That was about a month to the retirement of the immediate past CJN, Justice Mohammed Mahmud.
Expectantly, considering the fact that the office of CJN by its nature, abhors vacuum, the President ought to have given the nomination the desired attention. Unfortunately, the nomination is yet to reach the National Assembly. The recent clampdown on the judiciary, leading to arrests and prosecution of some judges has also heightened concerns among stakeholders that Mr. President’s ‘refusal’ to send Justice Onnoghen’s name to the Senate, for approval was informed by factors other than good intention.
A section of the polity maintained that having succeeded in watering down the power of the legislature, the executive was bent on destroying the judiciary with the aim of making both arms of government appendages of the executive. This group further held that the entire scenario was a grand plot to deprive the Justice of his well-deserved appointment as CJN, probably on the basis of ethnicity.
Yet, for others, it was to prepare the stage for another northern justice, which some people have alleged to be the trend in President Buhari’s appointment style. Others, including the executive governor of Ekiti State, Ayo Fayose, went to the extent of expressing fears that cabals in the Presidency might want to hold him (Onnoghen) by “the jugular, by using his confirmation as substantive CJN, to coarse him into assisting them to pervert justice in matters of interest to them.”
The questions on the lips of those, who perceived the recent appointment as a played-out script was, ‘why should Nigeria settle for an acting CJN in spite of the fact that Justice Onnoghen’s name was sent to Buhari early enough? Why was his name not sent to the Senate for screening and confirmation? Why did the President appoint him as acting CJN when his name should have been sent to the Senate between October 11, when he was recommended to the Presidency and November 10, when Justice Mohammed Mahmud retired? This group of people insisted that there was more to this acting CJN’s appointment than meets the eye.
Unfortunately, while the arguments for and against the appointment rage, Nigeria’s constitution appears to be adamant on the very issue of substantive appointment of the most senior justice. In fact, it created a lacuna by not strictly providing that the most senior justice shall automatically succeed the outgoing CJN on a substantive appointment. The 1999 Constitution (as amended), in Section 231(1) only provides that: “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 (NJC), subject to confirmation of the Senate.”
But failure to secure the timely confirmation of the Senate had led to the acting option, which according Sub-section (5) of Section 231 of the Constitution, should not exceed three months. It stipulates that after the expiration of the three months from the date of such appointment to perform the functions of Chief Justice of Nigeria, it shall lapse and the President shall not re-appoint a person whose appointment has lapsed. This implies that except on the recommendation of the National Judicial Council, the appointment shall cease to have effect after expiration of three months from the date of such appointment.
However, some Nigerians have absolved the President from blame when they held that if Mr. President had found Onnoghen wanting, he would not have appointed him even on acting capacity. But does the President have the constitutional power to reject the nomination of NJC in this circumstance? Former General Secretary, Nigerian Bar Association (NBA), Mazi Afam Osigwe, stated that Mr. President indeed has the power to either accept or reject the recommendation of NJC.
He, however, warned of the implications of such rejection, stressing that it might create crises in the judiciary. He also believed that appointment on acting capacity would rob the judiciary of the ability to make long-term policies due to uncertainty of the office of one on acting position.
“Yes, my understanding of a recommendation is that you might accept or refuse. Some lawyers say ‘you cannot’ but if I have to recommend to you to make an appointment, then, it means you have the discretion whether to accept my recommendation or return it to me with or without reasons. But you cannot appoint without the recommendation by the recommending authority. However, I think it will be in the best interest of the judiciary and the nation for the President to accept this recommendation, having gone through the process of selection since March, so that Justice Onnoghen would be appointed the CJN.
“We have had a lot of delay in doing this and the earlier the President sent the nomination to the Senate for confirmation, the better for this nation and the judiciary. We only have the acting CJN because no substantive appointment has been made and the Constitution says that the most senior judge should be appointed to act where there is no substantive chief justice. When the office of CJN becomes vacant by virtue of death, retirement or removal, and in the absence of any substantive replacement, the most senior judge should act. It has a lot of implications because if you are in acting capacity, it means you cannot make long-term plan because you dont know if you will be there for a day or two.
“It means there is uncertaintity in the leadership of the judiciary because after three months, another person might be appointed to act in your place and may reverse your policies or go in a different direction.”
Osigwe feared that at the expiration of the stipulated three months acting period, NJC might nominate another person to take over. “Whichever way you look at it, it makes for uncertainty. I am not a member of NJC and I cannot speculate on whether Onnoghen would be re-nominated by the NJC, but if his appointment is not confirmed and NJC appoints another CJN and that person assumes the office of chairmanship of NJC, it may bring confusion.”
Also speaking, Abuja based lawyer and former National Secretary, Labour Party, Kayode Ajulo, believed that the appointment of Onnoghen on acting capacity has not violated any law. He, however, held that NJC could still nominate him for the second and third time, if they so wish. “If I remember, at the expiration of the first time, he has two more times to go on acting capacity,” he said.
He went further to state that the appointment or not of any person may not have as much implications on the weak institution. He, therefore, canvassed a stronger judicial institution rather than dwell on the effect of an individual appointment.
But former Attorney General, Delta State, Charles Ajuwa, attached no sentiments to Mr. President’s delay in sending Onnoghen’s name to the Senate. In fact, he attributed it to the general style of Mr President towards appointments. He, however, hoped that Onnoghen, as a competent judge, who has proved his mantle over time, President would have no option than to appoint him on a substantive capacity in due time.
“It does not worry me that his name has not been forwarded by the President to the National Assembly. We all know that the President is not in a hurry to appoint anybody. So, I do not want to insinuate anything on that. I have no fear about Onnoghen being the CJN. He is competent and nobody has raised any allegation against him. So, I believe that President Buhari will have no reason not to appoint him the CJN.
Ajuwa’s position aligned with those of many Nigerians who hold the view that in order not to cause further crises in the judiciary, President Buhari should take immediate step in ensuring the confirmation of Justice Onnoghen as Chief Justice of Nigeria (CJN), in the interest of peace and stability of the judiciary and the country in general.