Issues Before the Acting CJN

Congratulations to his Lordship, Honourable Justice Olukayode Ariwoola JSC, on his elevation to the position of Acting Chief Justice of Nigeria (Acting CJN) on Monday, June 27, 2022 upon the resignation of the outgone Chief Justice of Nigeria, his Lordship, Honourable Justice Ibrahim Tanko Muhammad GCON (on health grounds). Upon confirmation, the Acting CJN will occupy this position until he retires at the age of 70 on August 22, 2024 (he was born on August 22, 1954).

Constitutional Provisions Relating to the Appointment of the CJN

ONIKEPO BRAITHWAITE :THE ADVOCATE

Section 230(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution) establishes the office of the Chief Justice of Nigeria (CJN), while Section 231(1) thereof, provides that the CJN shall be appointed by the President on the recommendation of the National Judicial Council (NJC), subject to Senate confirmation.

Pursuant to Section 231(4) of the Constitution, President Muhammadu Buhari appointed the Acting CJN as the most senior Justice of the Supreme Court, to perform the functions of the CJN upon the office becoming vacant, until a substantive CJN is appointed. Unless the NJC recommends otherwise, the Acting CJN can only act in that position for three months from the date of his/her appointment, and such person shall not be reappointed after the appointment has lapsed (Section 231(5) of the Constitution).

I believe that Section 231(5) of the Constitution, a follow up to Section 231(4) is clumsily drafted. Using the literal rule of interpretation, it seems to mean that an Acting CJN can only hold this position for three months (in Acting CJN Ariwoola’s case, until September 27, 2022), and if this time period lapses, he/she cannot be reappointed, except upon the recommendation of the NJC.  Section 231(5) is silent regarding the position for reappointment. However, the provision uses the word ‘reappointed’; to reappoint means to “appoint (someone) once again to a position they have previously held”; in this case, the position previously held is the office of Acting CJN. It would be absurd to reappoint someone for an additional period of time in an acting capacity, after already serving for three months. It makes more sense to interpret the provision as meaning that an Acting CJN’s name should be forwarded by the President on the recommendation of the NJC, to the Senate for confirmation as the substantive CJN (and not as Acting CJN), within the three months that the individual is temporarily holding the position, in Acting CJN Ariwoola’s case before September 27, 2022.

It is trite law that when the literal rule of interpretation of statutes leads to an absurd outcome which may not be what the Legislature, or in this case, the drafters of the Constitution intended, the golden rule can be invoked to obtain a more reasonable meaning. In the case of Dangote Cement v Anyafu (2020) LPELR-52601 (CA) per Monica Dongban-Mensem JCA (now PCA) the Court of Appeal held that “The golden rule of interpretation is to give words their ordinary, clear and simple meaning where they do not lead to absurdity or ambiguity”. See also Joseph Nwobike v FRN (2021) LPELR -56670 (SC) per Helen Moronkeji Ogunwumiju JSC where the Supreme Court held that “The Golden Rule is complimentary to the Literal Rule, in that the principle of interpretation is that the words of a statute should be given the meaning according to the intention of the legislature, and its intention could be known from the literal or grammatical interpretation of the language used”. I submit that one can therefore, safely conclude that Section 231(5) of the Constitution refers to appointment as the CJN, and not reappointment as acting CJN.

About His Lordship, Honourable Justice Olukayode Ariwoola

Hon. Justice Ariwoola is a seasoned Jurist who was called to the Nigerian Bar in 1981, and has served as a judicial officer for about 30 years, since he was first appointed as a Judge in the Oyo State Judiciary in 1992. To date, he has had an exemplary career, and there is no reason for the Senate not to confirm him as the 22nd Chief Justice of Nigeria.

Going Forward

His Lordship is expected to hit the ground running, as he has his work cut out for him already.  Aside from the letter of protestation allegedly written by the Justices of the Supreme Court drawing attention to their deplorable conditions of service, which must be addressed forthwith, there is a lot to do.  From increasing citizens’ access to justice; to the NJC filling the vacancies in the Supreme Court (I believe the Apex Court is down to 14 Justices with two Justices passing away in 2021 and three retiring after reaching the mandatory retirement age and now the former CJN resigning – hitherto, they were not  a full court of 21 Justices – see Section 230(1)(b) of the Constitution); to addressing the slow pace of the judicial process and making the wheels of justice move faster and more efficiently; to the conversation about which matters should be heard by the Supreme Court and those which should be disposed of finally by the lower courts, in order to reduce the unnecessarily heavy burden on the Apex Court, and also, so that people don’t spend up to 20 years waiting for their matters to be finally determined (this may require legislatively amendments); to the financial autonomy of the Judiciary; the issue of remuneration and conditions of service of all levels of judicial officers in Nigeria; the issue of the NJC and its composition, and indeed, all the other judicial bodies and how to make them function more efficiently and effectively; the issue of forum shopping and conflicting court orders, especially as the election season has commenced; to being not just the Chief Justice of the Supreme Court but the Chief Justice of Nigeria, which also involves regular actions like on the spot visits to the various State Judiciaries to assess them and being actively involved in the direction the Judiciary takes nationwide. In short, we expect His Lordship, the Acting CJN, to prepare his agenda over the next few days and make it public, as the justice sector is in dire need of reform.

Conclusion

We expect the President and the NJC to forward the name of Acting CJN Olukayode Ariwoola to the Senate for confirmation without delay, so that the CJN can quickly settle down and face the tasks ahead head on, and get on with the reform of the justice sector immediately – Lawyers do not see any reason not forward his name for Senate confirmation immediately. It has been the practice that the most senior Supreme Court Justice fills the vacuum when the position is vacant; there is no reason for there to be a change in this particular circumstance – ‘Hon. Justice Ariwoola lo kan!’ (It’s Hon. Justice Ariwoola’s turn!). As it is, for many reasons, the Judiciary is not where it should be. Any unnecessary vacuum or delay in sorting out the issue of the leadership of the Judiciary, one of the three arms of government, especially in this particularly crucial, transitional time in our country, could be inimical to us.

P.S: Adorning of Religious Attire to Court

As for Mr Malcolm Omirhobo, who went to the Supreme Court and Federal High Court last week in his ‘Olokun’ traditional attire, this may just be the beginning. In 2017 and 2018, I had warned against allowing any religious dress to be worn with the wig and gown, after the incident of Amasa Firdaus who was not called to the Bar in 2017, because she refused to remove her hijab like the other Muslim sisters did, and insisted on wearing it with her wig and gown. She was eventually called to the Bar in her hijab, the following year. Some may have seen it as some kind of victory, but I saw it as the beginning of more confusion in the legal profession and strife amongst the various religions, especially Islam and Christianity – a development which is certainly extremely unwelcome, in a country that has never been as polarised as it is today with regard to ethnicity and religion. I displayed a photo of a Reverend Sister who is mandatorily required to wear her Nun’s Habit as her daily dress but dispensed with it for the purpose of her call to the Bar, adorning a smart black suit with her wig and gown instead, to conform with the normal accepted dress of a Barrister. I also displayed a photo of myself in a hijab, which I wear regularly when I attend Islamic functions.

We are aware that Section 38(1) of the Constitution allows for freedom of religion. But, in my editorials of 19/12/2017: “Judiciary: A Tale of Two Decisions” and  17/7/2018, “Amasa Firdaus: Hijab and the Fire Next Time”, I discussed this issue and still point out some of the same facts which I highlighted then:

1. That the hijab and burqa are more traditional wear worn by Arab women, and not necessarily mandatory regulation wear prescribed by the Holy Quran. The Holy Book enjoins believers to use righteous clothes to cover their shame (Quran 7:26); women should guard their modesty and shouldn’t display beauty and ornaments except what must ordinarily appear thereof, bosoms should not be exposed (Quran 24:30-31). While Islam places emphasis on modesty and decent dressing, there is no specific mandate to wear a hijab, or that the only way to achieve this modesty, is by wearing a hijab;
2. That a wig cap could be worn discreetly to cover the hair under the wig, as I see many of our female judicial officers of the Muslim faith do;
3. That allowing the hijab would open a can of worms, as other religions would also insist on wearing their own religious attire with the wig and gown, thereby turning the court into a circus. That we would see the Catholic Priests in their Cassocks and Reverend Sisters in their Habits, Aladuras in their sultanas and fluffed head covers coming barefoot to court (like Mr Omirhobo), Ifa faithfuls in their ilèkè and òja, Buddhists in their orange raiments, to mention but a few;
4. That denying the other religions the right to express themselves in their dress like the Muslim sisters wearing the hijab, would amount to discrimination contrary to Section 42 of the Constitution;
5. That the NBA is a Voluntary Association which has a right to draw up its internal rules and regulations, including that of dress, and anyone that is not happy with the dress code of the legal profession is free to join other professions where it is acceptable to adorn religious attire;
6. That it was best to uphold Section 10 of the Constitution, and keep religion out of official, public spaces. People should not foist their religious preferences on others; they should be  personal.