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Confirm Justice Onnoghen as CJN

By Editorial Board
18 November 2016   |   3:55 am
It is curious indeed that President Muhammadu Buhari delayed for nearly a month naming a successor to the retired Chief Justice of Nigeria, (CJN) Justice Mahmud Mohammed.
Justice Onnoghen

Justice Onnoghen

It is curious indeed that President Muhammadu Buhari delayed for nearly a month naming a successor to the retired Chief Justice of Nigeria, (CJN) Justice Mahmud Mohammed. In view of the role and the responsibility of the judiciary in the structure and stability of any democratic system, the delay has raised a lot of questions at this time when our complex federation is facing some strain. Besides, these are not the best of times for Nigerian judiciary. Lately, it came under unedifying scrutiny to the extent that estates of some judges including some in the Supreme Court, were raided by the department of state security in what was termed a “sting operation” in the night. There have been reports that some of the judges will be charged to court soon for alleged corrupt practices. This is a sad development, coming on the heels of recent comments that the judiciary has been one institution that has been cleaning up itself through dismissals of corrupt ministers in the temple of justice. In a recent comment, this newspaper had noted that dismissal of judges was not enough and so all the corruptible judges must not only be named, they should also be shamed through diligent prosecution. In any case, the controversial raid on the residences of the judges has raised the bar of discussion points on the need to sanitize the polluted temple of justice.

That is why it is reasonable to expect that the president should do whatever is expedient to ensure that there is credibility and stability in the judicial arm of government that he has a responsibility to nominate its head.

And it is for the same reason the recent appointment of an Acting Chief Justice of Nigeria is raising some curiosities.

The simple procedure for appointing a Chief Justice of Nigeria (CJN) as dictated by the constitution and for long guided by convention, has, by act of omission or commission, been allowed by the presidency to turn into a realm of speculation, motive hunting, innuendo of political and ethnic and other colorations. For instance, the Ekiti State governor, Ayodele Fayose suspects “either a grand plot to deprive the Acting CJN, Justice Onnoghen his well-deserved appointment as CJN because he is from the South-South region, or that a cabal in the Presidential Villa would want to hold him in the jugular, using his confirmation, to get him (Onnoghen) to assist them to pervert justice”. For a moment, let’s not analyse the content of the character of the messenger but the message. The message is clear: that the appointment of Justice Onnoghen in an acting capacity without a precedent in a recent history is quite strange.

At this time that the federation is facing some stress, the point must be made that leaders must take decisions with utmost sensitivity to broad range of sections and interests that constitute the fragile union. Besides, it is presidential wisdom to avoid a needless controversy like this.

As it is conventional for years, a retiring CJN has always been succeeded by the most senior judge in the Supreme Court. Anyone familiar with the corporate culture there could say with a high level of certainty who would be the next substantive CJN. Indeed, the process has been seamless because of the clarity – or put more correctly, the transparency – of the process, though that is not the provision of the constitution. Nigeria’s constitution does not provide that the most senior judge shall succeed the outgoing one. The 1999 Constitution of the Federal Republic of Nigeria (as amended) in Section 231(1) 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.

Accordingly, the National Judicial Council (NJC) had about mid-October, recommended the next most senior Supreme Court judge, Justice Walter Onnoghen to the president for consideration as successor to Justice Mahmud Mohammed who retired November 9th. It may be granted that the president is not duty bound to accept this recommendation. But he has, albeit in a manner that has triggered tension in the polity. The president didnot only tarry for weeks, he opted to name Justice Onnoghen in an acting capacity. This gives the appointer room to maneuver because Sub-section (5) of Section 231 of the Constitution also allows that after the expiration of 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 is the provision in (S.231:5):

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 expiration of three months from the date of such appointment, and the president shall not re-appoint a person whose appointment has lapsed.

In any case, were Justice Onnoghen found deficient in any way, president Buhari could not have entrusted him with the headship of the apex court even in an acting capacity. In both power and authority, an acting CJN is much different from a substantive one. And so, if, for whatever reason, President Buhari in his wisdom thinks that Onnoghenis unfit to be confirmed for the highest judicial post in the land, he must, with evidence, tell the people of this country now. In the absence of this, the President should submit forthwith, the name of Justice Walter Onnoghen to the Senate for confirmation as Chief Justice of Nigeria (CJN). This is in the interest of peace and stability in the country at the moment.