Justice Onnoghen in Limbo

For how long will Justice Walter Nkanu Onnoghen remain in acting capacity as the Chief Justice of Nigeria (CJN)? This is one question many people are currently asking President Muhammadu Buhari, writes Davidson Iriekpen

The refusal of President Muhammadu Buhari to ensure that Justice Walter Nkanu Onnoghen is appointed the substantive Chief Justice of Nigeria (CJN) is currently generating negative reactions in the polity. 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, the argument has been that the acting CJN’s appointment is tendentious. Many observers feel that the president simply appointed him in acting capacity to ease off pressure and later dump him.

Analysts believe that though 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 National Judicial Council (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 National Judicial Council (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 following the retirement of the immediate past CJN, Justice Mohammed. 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 of President Buhari to hasten the appoint appointment of 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.

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?
It was against the backdrop that the Ekiti State Governor, Mr. Ayodele Fayose, expressed reservations over the non-appointment of Justice Onnoghen 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’ in 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 13, 2016, his name was not sent to the Senate for confirmation.

The governor 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 Mahmud 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.”

A human rights lawyer, Chief Morah Ewunoh, has said the appointment of Justice Onnoghen as acting CJN will negatively affect the government and drastically erode public confidence in the judiciary. He pointed out that the appointment of Justice Onnoghen by President Buhari as acting CJN was the first since amalgamation of Nigeria in 1914 and has raised serious, fundamental and worrisome questions.

Ewunoh therefore urged the government to forward the name of Justice Onnoghen, being the most senior, sound and untainted justice of the Supreme Court, to the Senate for confirmation as substantive CJN, saying “As already awash in the print, electronic and social media, political, ethnic and religious protagonists have ascribed variegated interpretations and colourations to the appointment, only in acting capacity.”

Meanwhile, the president’s continued refusal to appoint Onnoghen in substantive capacity took a different dimension last week when a human rights activist, Chief Malcolm Omirhobo, dragged him, the Attorney General of the Federation, Federal Judicial Service Commission, and the NJC before the Federal High Court in Abuja for not confirming the judge in substantive capacity.
Omirhobo therefore wants the court to determine among other things, whether it was lawful, proper and constitutional for Buhari as the head of the executive arm of government to deliberately and intentionally foist a vacancy in the office of the CJN on the third arm of government.

He also wants the court to determine whether it is not an aberration and a violation of the principle of separation of powers for Buhari to appoint Onnoghen in acting capacity instead of as substantive CJN. He consequently, asked the court for an order of mandamus compelling the president to act forthwith with the recommendation of the NJC appointing Justice Onnoghen as the substantive CJN and transmitting a letter to the Senate for consideration and confirmation.

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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?