Concern Mounts over Chief Justice, Olanipekun Weighs in

• Cites lack of seamless transition in judiciary for the first time since 1958

Abimbola Akosile
Less than two weeks to the expiration of the three months within which a person can legally serve as acting Chief Justice of Nigeria, the non-transmission of the name of Justice Walter Onnoghen to the Senate for confirmation as substantive CJN has continued to draw concern and fear. President Muhammadu Buhari had on November 10 last year named Onnoghen, the most senior justice of the Supreme Court, as acting CJN. That was following the retirement of Justice Mahmud Mohammed at the statutory age of 70.

But Buhari has remained mum on the forwarding of Onnoghen’s name to the Senate for confirmation as required by the constitution, despite the imminence of February 10, when he must cease to act as CJN. This has fuelled anxiety and fear that the president may have decided to block the emergence of the 66-year-old justice as substantive CJN based on extra-constitutional considerations.

The concerns are heightened by the fact that Cross River-born Onnoghen would be the first southerner to emerge CJN in line with the judiciary’s succession tradition in nearly 30 years.
At the weekend, former president of the Nigeria Bar Association, Chief Wole Olanipekun, SAN, warned the federal government against the creation of a hazardous uncertainty in the polity by the refusal of Buhari to transmit Onnoghen’s name to the Senate for confirmation as substantive CJN. Olanipekun gave the advice in a statement released yesterday. He accused the Buhari government of setting a dangerous precedent by causing Onnoghen to linger on the post of acting CJN since November 10 last year.

The 1999 Constitution mandates the president of the country to appoint the CJN on the recommendation of the National Judicial Council, and subject to the confirmation of the Senate. The NJC, having performed that constitutional role by recommending Onnoghen to Buhari for appointment as CJN after its meeting on October 11 last year, Olanipekun believes it is incumbent on the president to forward the name of the justice to the Senate for confirmation.

In the statement titled, “The Imperative of Appointing and Swearing-in a Substantive Chief Justice of Nigeria,” the former NBA president quoted extensively from the constitution to buttress his point. Section 231 (1) and (4) formed major planks of his argument.

Subsection (1) states, “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 subject to confirmation of such appointment by the Senate.” Subsection (4) states, “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 the office has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions. “

Olanipekun said, “To my mind, immediately after this recommendation, NJC had completed its constitutionally vested duty, thus, becoming funtus officio. It can no longer revisit, review or re-examine the recommendation it has made. Section 158(1) of the Constitution guarantees not just the independence of the NJC, but also the sanctity of the decision it has arrived at. The NJC has no constitutional latitude to approbate and reprobate on the subject.

“Starting from that point, particularly, on receipt of the recommendation of the NJC by Mr. President, the ball shifted to the President’s court; but has to be passed to the Senate simply in accordance with the wordings and dictate of the Constitution. The law has well crystallised in the proposition that where the wordings of a statute, particularly the Constitution, are clear, they merely call for application, and not interpretation.”
Olanipekun believed the appointment of Onnoghen as acting CJN was, ab initio, a misnomer. He held, “In the face of a definitive recommendation by the NJC to Mr. President for the appointment of a particular Justice as the Chief Justice of Nigeria, Mr. President cannot fall back on the provision of Section 231(4) to appoint that same Justice as the acting Chief Justice of Nigeria.

“With every sense of responsibility, Section 231(4) will come into play if, for example, after the receipt of the NJC’s recommendation, the President has forwarded the name of the Hon. Justice Onnoghen to the Senate, and as at November 10, 2016, when the last holder of the office of Chief Justice of Nigeria retired, the Senate had not reverted to the President, confirming the appointment or deciding otherwise. Then, there would have been an interregnum.

“With the situation of things whereby the NJC has made recommendation to Mr. President under Section 231(1), the said sub-section and sub-section (4) have become mutually exclusive. In its clear wordings, the Constitution does not expect that an interim appointment should be made in the circumstances. By its tenor and spirit, the Constitution does not contemplate it.”

Olanipekun likened Buhari’s failure to send Onnoghen’s name to the Senate to a situation where the CJN refused to swear in the president-elect because his election was being contested in court, or the Senate refused to consider ministerial nominees sent by the president because it disagreed with the process that brought the nominees.
Lamenting what he called a disruption of the succession tradition, Olanipekun said, “Right from the appointment of Sir. Adetokunbo Ademola as the first indigenous Chief Justice of Nigeria in 1958, and through to 2014 when the Hon. Justice Mahmud Mohammed was appointed as the 14th indigenous Chief Justice of Nigeria, change of baton at the Supreme Court had always been smooth and seamless.

“There had not been any interregnum; no appointment of acting Chief Justice, not even when the Hon. Justice S. M. A. Belgore was appointed as Chief Justice of Nigeria for about six months.”

He said, “Mr. President has not communicated with the NJC to give any scintilla of reason or excuse as to why the name of the person recommended by it under Section 231(1) of the Constitution has not been forwarded for confirmation. To the best of my knowledge as well, Mr. President has not expressed any reservation or communicated such to the NJC about the recommended candidate. Why then the suspense?”