No, CJN Appointee Need not be the Most Senior Justice – Sagay

Hysteria
There has been much frenzy, furor and hysteria over the appointment of the Hon Justice Walter Samuel Nkanu Onnoghen as Acting Chief Justice of Nigeria (CJN), rather than the substantive CJN. The debate has taken every dimension possible, including accusing the Federal Government of trying to suppress the right of one part of the country in favour of another.
This debate has generated a lot of heat, acrimony and self-generated anger, without generating a single ray of light. I have therefore, decided to intervene in the debate as a lawyer and as someone who is an occasional beneficiary of informal sources of information.
The appointment of the CJN is provided for in Section 231 of the Constitution. Basically, it provides that the President is the appointor. But for him to appoint, he must receive a recommendation from the National Judicial Council (NJC) after which he forwards the name of the appointee to Senate for confirmation. Thus, under normal circumstances, when he receives the recommendation of the NJC, he should, if he is satisfied with the nomination, pass on the name of the nominee to the Senate for confirmation. Once Senate confirms the appointment, the nominee becomes the CJN after he has been sworn into office by the President.
 
Right of Rejection
I pause here to disagree with Chief Wole Olanipekun, SAN, who in his two-piece article in the Vanguard, gave the impression that the President is either a cipher or a robot, who has to pass on a nomination coming from the NJC to the Senate without discretion, input or without the right of rejecting such an appointment and calling on the NJC to send other nominations.
The truth of the matter is that both, in particular, can turn down the recommendation of the NJC and request that another name be recommended. The President is not a rubber stamp of the NJC recommendations, nor a robot for the conveyance of recommendations from the NJC to the Senate.
This is where the President’s power to appoint an Acting CJN becomes important. By Section 231(4) of the Constitution, the President has the power to appoint the most senior Justice of the Supreme Court in an acting capacity, until a substantive Chief Justice is appointed. But such an appointment lapses after three months and the President cannot re-appoint the same person as acting CJN unless he receives a recommendation to that effect from the NJC.
Therefore, since at the time the acting appointment of Hon. Justice Onnoghen was made, the office of the then Chief Justice of Nigeria was vacant, that appointment was validly made.
There has been extreme agitation and frenzy over the failure of the President to send Hon. Justice Onnoghen’s name for confirmation, literally within seconds of receiving the NJC’s recommendation. These agitations have exhibited either ignorance, bad faith, or down-right primordial motives.
 
Turn by Turn Syndrome
The crossroads at which we find ourselves today is entirely of the making of the NJC and the legal profession as a whole. Since the appointment of the Attorney-General, the Hon. Justice Taslim Elias in 1973, and the appointment of the Hon. Justice Augustine Nnamani, also Attorney-General a few years later, straight to the Supreme Court from outside the judiciary, all that has been happening in this country is in-breeding within the judiciary, whereby a person is appointed Judge of the High Court and after marking time as a good boy or girl, he is appointed to the Court of Appeal and after marking further time as a good boy or girl at the Court of Appeal, he is elevated to the Supreme Court. So, it has been a turn by turn syndrome.
Today, once you arrive at the Supreme Court, if there is no younger man amongst those already appointed before you, you can calculate to the exact second when you are going to be the CJN.
So, the system is devoid of the merit, achievement and quality of the character of the appointees. It’s all automation as you ride on the judicial escalator from High Court Judge to the Supreme Court and then the position of the CJN.
 
Judicial Corruption Up to the Supreme Court
Another major calamity that has hit the judicial system is the dawn of corruption right up to the Supreme Court. Only a person, who has no love for this country will forget how the Supreme Court was almost abased by the stink of corruption after the 2007 elections that brought the late Yar’Adua to power.
To give an example, the ballot papers that were used by the INEC (Independent National Electoral Commission) were not bound in booklets, nor were they numbered serially, but they were nevertheless used for the presidential election. Unfortunately, four out of the seven Justices upheld that election, in effect, sanctioning an election in which it was impossible to distinguish between valid and invalid ballot papers and to follow any paper trail of ballot papers to their original destinations.
I am pleased to say that Hon. Justice Onnoghen, Justice of the Supreme Court (JSC), was one of the three Justices who nullified that election because of the use of the invalid ballot papers. The other two Judges were the Hon. Justice Michael Oguntade, JSC, and Hon. Justice Mariam Mukhtar. This is what the Hon. Justice Onnoghen said in nullifying the election that brought the Yar’ Adua to power:
“You cannot conduct an election properly so-called without valid ballot papers. By holding that there was substantial non-compliance with section 45(2) supra it tantamounts to holding that the election that was conducted on the 21st day of April, 2007 was done without valid ballot papers which to me, with the greatest respect, amounts to a nullity.
The situation being as found by the lower court it follows that there was no election known to law the result of which could have been substantially affected by the non-compliance as the non- compliance in this case is of the nature that invalidated the election.
To hold otherwise amounts to giving licence to those who conduct our elections to continue to do whatever they like, including creating loopholes for the rigging of our elections, thereby continuing to deny our electoral process the credibility it deserves in the community of democratic nations. How is one to know which ballot papers were sent to Sokoto, Katsina, Ebonyi, etc. when the ballot papers were not in booklet form and numbered serially? Even within the particular state where the ballot papers are sent for election, how do we know if ballot papers meant for one local government area or ward are not diverted and used in another or even not used at all but stuffed into the ballot boxes and counted as votes?
How can we determine a genuine ballot paper from a fake one when we agree that any paper can pass for a ballot paper and be used in an election and assume that such an action of non- compliance does not affect the result of the ‘election’?” (BUHARI v INEC; YAR’ADUA & ORS [2009] 7 WRN, 1 at pp. 275-6).”
With the above background of in-breeding, absence of merit and later corruption, would it be responsible for the President to automatically, in a robot-like manner, transmit every name received from the NJC to the Senate? The answer is a solid No. This is where appointment as Acting Chief Justice is important. It gives the President the opportunity of studying the appointee for CJN for a period of three months in order to determine for himself whether the recommendation was justified. This load has fallen on the President because of the failure of the NJC to exercise due diligence in the past when making recommendations to the President. From my own perspective, without any privileged information, I believe that this is the process ongoing right now.
The lack of due diligence on the part of the NJC allowed at least two Justices of the Supreme Court to slip through the net of judicial vetting to become the CJN. And that became a permanent embarrassment to the Judiciary and Nigeria as a whole. Up till today, one of them calling himself Consultant, regularly carries money to his former colleagues, still serving in the judiciary, to buy justice for his Law Chamber clients.
The other one specialises in dollars and distributing it amongst vulnerable colleagues. These are the types of Justices who have brought ruin to the judiciary, making it necessary for close vetting of candidates for CJN at the presidential level.
 
Recommendations to the NJC
In concluding this intervention, I wish to make the following recommendations to the NJC in order to improve the quality of appointments to the Supreme Court.
They are:

• There is need to inject fresh blood into our judicial system by appointing qualified lawyers from outside the bench straight to the Court of Appeal and the Supreme Court. In this regard, senior law academics in our universities and senior renowned legal practitioners of integrity and acclaimed knowledge and skill in law should be an additional source to the appointment of appellate Judges, even as CJN, directly.

• An appointee to the position of Chief Justice need not be the most Senior Justices of the Supreme Court. We must take into consideration the reputation, the integrity, the skill, productivity, established reputation of the candidate before appointing him to the position of CJN. It is unhealthy to the judicial system and the performance and integrity of the Supreme Court, to continue with the present system in which a recently appointed Justice of the Supreme Court could calculate the date in which he is going to become the Chief Justice of Nigeria based on the ages of those above him in the hierarchy.

I therefore appeal that our notoriously loquacious and unrestrained compatriots should desist from further hysteria to allow the acting CJN to earn his position on his own merit rather than create a frenzy and furor, which can result in the very opposite of what they are loudly agitating for.
Prof Itse Sagay, SAN, Chairman, Presidential Advisory Committee Against Corruption (PACAC)