Anxiety as Buhari Delays Appointing Chief Justice of Nigeria

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There is growing discontent in the land as President Muhammadu Buhari delays the appointment of a substantive chief justice of Nigeria, while Walter Nkanu Onneghen, who occupies the position in acting capacity, is left in limbo, thereby raising suspicions that the president has a hidden agenda

By Olu Ojewale  |  Feb 13, 2017 @ 01:00 GMT  |

THESE are unusual times in Nigeria’s judiciary.  In October last year, about seven judges, including two Supreme Court justices, were roused from their sleeps as officials of the Department of State Services, DSS, in sting operations raided their domains. Many of them are now facing corruption charges, money laundering and other sundry allegations; many others are also being investigated for similar allegations.

As if that is not worrisome enough, the attention seems to have shifted to the Supreme Court of Nigeria, where the current leader is holding the position in acting capacity. This has been causing anxieties across the country about the intention of President Muhammadu Buhari, who should normally have sent his name to the Senate for confirmation but has refused to do so. By refusing to send the name of Justice Walter Nkanu Onnoghen to the Senate for confirmation, anxiety has continued to grow, while rumours and speculations are rife.

In reality, the president seems to have little or nothing to do with appointment of the CJN because it is usually done on the recommendation of the National Judicial Council, NJC, and the president is expected to perform the ritual of forwarding the name to the Senate for confirmation. Hence, as expected, the NJC announced that it had met and recommended Justice Onnoghen to President Buhari for appointment as the substantive CJN, following the retirement of Mahmud Mohammed, the immediate past CJN on November 10, 2016. Thus, the appointment ritual has never been characterised by uncertainty of this magnitude which has gripped the nation’s judiciary.

Nevertheless, the Presidency appears to be unperturbed even as Onnoghen’s three months of tenure elapses in a few days February 10. Sources closed to the Presidency pointed out that the president had asked investigations of activities of some judges across the country and that the current acting CJN might be one of those being investigated.

While admitting that the delay in submitting Onnoghen’s name could be because of investigation of some judges, Femi Falana, SAN, a human rights lawyer accused President Buhari of being slow in handling affairs regarding of the country.

“The Buhari administration claims the delay is occasioned by the investigation of some justices of the Supreme Court. But it should not take eternity to conduct the probe. The government should ensure that the investigation is concluded as soon as possible.

“The risk is that the delay may be politicised or even ethnicised. More dangerously, the Senate that will eventually confirm the nominee may be tempted to influence the decisions of the Supreme Court.

“That is what the delay in confirming the appointment of Mr. Ibrahim Magu as Economic and Financial Crimes Commission chairman has caused. The government must avoid a situation whereby the confirming authority is setting down conditions for the confirmation of the nominee for the post of the CJN,” Falana said.

Buhari
Buhari

Besides, the human rights activist noted that the Senate had gone on recess and would not resume until February 21. “In the circumstance, the acting CJN may be reappointed after the end of the mandatory period of three months,” Falana said.

Buttressing his point, he said: “When the immediate past president of the Court of Appeal, Justice Ayo Salami, was suspended for over one year, Justice Bulkachuwa was acting president for over one year before she was eventually confirmed.”

He said in 2007, the Senate had to defer the confirmation of the appointment of the former CJN Legbo Kutigi. “He was sworn in as acting CJN,” Falana said.

However, some political analysts would like to believe that Onnoghen could be a victim of power-play and his place of birth. The acting CJN was born at Okurike Town, Biase Local Government Area of Cross River State. According to that school of thought, President Buhari would be more comfortable with someone from his own part of the country, a northerner. Interestingly, Justice Ibrahim Tanko Muhammad, the next in seniority to Onnoghen is a northerner from Bauchi State.

Among those holding this view is Mike Ozekhome, SAN, who accused Buhari of having a hidden agenda. Ozekhome said: “A lot of Nigerians have speculated that the president may not be disposed to having a southerner as substantive chief justice of Nigeria, after that slot has been occupied by Northerners continuously for 29 years. Otherwise, there is no reason why the man, whose acting capacity appointment was made on November 10, and which expires by effluxion of time on February 10, should not have been confirmed by now.”

He, however, said if by February 10, Justice Onnoghen was not confirmed, he would still be eligible for another three-month tenure as the acting CJN, contrary to anxiety in the public space.

“Justice Onnoghen can continue to be re-appointed as the acting CJN for as long as the president is not ready to send his name for confirmation. The president cannot suddenly remove him. The Constitution does not permit him to remove him. He has to appoint the most senior justice of the Justice Court because that has been the tradition; that has been the convention from time immemorial. We are not going to reinvent it now because a South-South person now has the opportunity, by the grace of God, to be the Chief Justice of Nigeria,” Ozhekhome said.

What, perhaps, makes the Onneghen more intriguing is that since its 56 years of independence, the issue of succession into the position of chief justice of the country has never been for a public debate in Nigeria. But since November 10, when Justice Onnoghen was sworn in as acting chief justice of Nigeria, CJN, by President Buhari without following it up with a letter to the Senate for his confirmation, there has been growing suspicion the president is probably, trying to play an ethnic card and that he might prefer a northerner in the post.

Edwin Clark, a former information minister in the First Republic and convener of the Pan Niger Delta Forum, PANDEF, warned that denying Onnoghen the opportunity would be more disastrous for the country. In an interview, Clark said that leaders of the South-South region had been busy for some time now trying to bring peace to the region and stop pipeline vandalism by militants, but just when they were about to celebrate the new found peace, another problem over the delay in sending the name of Justice Onnoghen to the Senate for confirmation as CJN was brewing.

He advised President Buhari not to listen or allow himself to be misled by some of his advisers. He said: “We have kept quiet for some time thinking that Mr. President will not waste time in sending his name to the Senate for confirmation. The duty of the president, as contained in the 1999 Constitution, has always been conventional and traditional. It is not the duty of Mr. President to question the suitability of the person recommended by the National Judicial Council, NJC. Once the recommendation is done, it is automatic and his duty is just to transmit the name to the Senate, the verification, looking into his character and everything is that of the Senate and not the president.

“But for more than three months now, going to about four months since the name was submitted to Mr. President, we, in the South-South, feel that the same thing that was done in the case of previous chief justices of Nigeria should be done.  For instance, Justice (Ayo) Irikefe was the CJN from 1985 to 1987, it was the same procedure that was used in appointing Justice (Mohammed) Bello as the CJN (1987 – 1995). And after him, there had been no trouble; it has been a quiet transition all along from one CJN to the other. In fact, the president has never questioned the judgement of the NJC. Once the NJC has taken a decision and submits the name to the president, it is automatic…

“I am appealing to Mr. President on behalf of the people of the South-South to please send the name of Onnoghen for confirmation before the expiration of his acting tenure, as doing otherwise, will cause problem in the area. We are not trouble makers; we are Nigerians and not second-class citizens of the country. Any moment we are being treated otherwise, our children will begin to ask questions, are they first-class citizens in Nigeria, are they equal to other Nigerians, we will not accept it. So, we are appealing to Mr. President to use his good office if he wants peace in the area and cooperation of the people of the South-South not to cause another problem in the area.”

Apart from disturbance that the case may cause in the Niger Delta, it is also being seen in some quarters as unjust because no southerner has held the position of the CJN in past 29 years except northerners. The development, is being seen in some quarters as unfair because Onnoghen would be the only southerner with a chance to be the CJN after 29 years that northerners have held the post.

Championing this argument is Monday Ubani, second national vice president of the Nigeria Bar Association, NBA. Ubani warned the president of the danger of appointing the CJN from the northern part of the country, saying it could further alienate justices of the Supreme Court of southern origin.

Falana
Falana

He argued: “For 29 years, the CJN emerged from a particular region. It was all on merit, nobody had an issue with it. It eventually came to the point of a southerner producing the CJN and for the first time you now put him in an incapacity that raises eyebrows. Why? After the NJC has even gone ahead and cleared him and all that. Mr President send his name to the Senate for confirmation or ratification and you said no. Okay, nobody has heard any reason why his name has not been sent.”

The human rights lawyer insisted that the appointment of the next chief justice should follow the principle of federal character and seniority at the Supreme Court and wondered how the president would want other regions to feel if another northerner should be picked as the CJN. Besides, Ubani argued that Onnoghen met all the criteria to be the CJN.

He said: “No matter how altruistic his (Buhari) intentions are, meanings will be read and I will tell you this, collateral damages would have been done to this presidency, even for the next two to three years remaining and then for his next aspiration to be the president of this country. Please let him not cause damage to himself and also to the northerners. We love this country and want it to be united.”

On his part, Abubakar Dangiwa Umar, a retired colonel and former military governor of Kaduna State, has urged the Senate not to confirm other nominee for the position of the CJN except Onnoghen.

In a statement on Thursday, February 2, Umar said the failure of the Presidency to forward Onnoghen’s name to the senate for confirmation without any reason “leaves Nigerians guessing and speculating.”

“In a few days, the tenure of acting appointment of justice Onnoghen will expire. Going by our extant constitution, the acting CJN will be disqualified from appointment as the substantive CJN unless the NJC resubmit his nomination to the president,” Umar said in a statement.

“Already, many analysts view this action as a ploy to deny a southerner his right to succession based on his seniority in keeping with the appointment protocol observed the NJC in making the appointment.

“In the event of this occurrence, the NJC must not forward any other name nor should the senate confirm any other nominee.

“This will serve to check the excesses of this administration and reinforce the unity of the nation which has already been pushed to the precipice by the recruitment and appointment policies of a government which tends to favour the north in violation of the federal character provision of the constitution.”

Daily, the number of persons and organisations calling on the president to forward Onnoghen to the Senate for confirmation as the CJN, has kept growing.

But Itsey Sagay, SAN, chairman Presidential Advisory Committee Against Corruption, in a newspaper article disagreed with the insinuation that the president should not make an input into the nomination of the CJN.

Sagay said that the impression given by some lawyers that the president should either act as a cipher or a robot and “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” was wrong.

“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.

Umar
Umar

“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. 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.”

Besides, Sagay said the judiciary as presently constituted is devoid of merit. He said: “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 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.”

Sagay argued further: “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.”

So to avoid the current demerit in the system, the law professor recommended that fresh blood should be injected into the 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.” Besides, it should not be made compulsory that the most senior justices of the Supreme Court be made the CJN. “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,” he said.

The Presidency has, however, warned against capitalising on the delayed transmission of Onnoghen’s name to the Senate to blackmail President Buhari. It also flayed what it called attachment of ethnic, religious and sectional meanings to the development, saying Buhari’s appointments so far had shown him as a detribalised president.

Reacting to concerns shown by many Nigerians, especially the Cross River State National Assembly Caucus over the issue, Okoi Okono Obla, special assistant to the president on Prosecution, on Wednesday, February 1, asked those having sleepless nights on the issue to be patient, saying “the system will take care of itself when the acting CJN’s tenure expires.” Obla hinted that there was no section of the Nigerian Constitution that prevented the president from re-appointing Onnoghen in acting capacity, a development which alluded to fears being raised in some quarters that Onnoghen might not be confirmed as substantive CJN.

Obla insisted that the president had not done anything wrong by his delayed action, saying the current situation was common in most states of the federation. “We have an acting CJN of Nigeria. Well, if his tenure ends, the system will take care of itself. I don’t think the president has done anything wrong,” he said.

Sagay
Sagay

Abubakar Malami, SAN, attorney general of the federation and minister of Justice, said there was no need for anyone to doubt the sincerity of President Buhari, as he would always be guided by appropriate laws in taking his decision on the matter. He said Buhari would be guided by Section 231(4) of the 1999 Constitution as amended which provides a three-month window for the emergence of a new CJN. The section 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.”

On November 10, President Buhari sworn-in Onnoghen in accordance to Section 230 subsection (iv) and Section 231 subsection (I) of the 1999 Constitution of Nigeria. Thus, Onnoghen took over from Justice Mahmud Mohammed, who retired in November last year having the mandatory age of 70 years.

Apparently concerned about the way the controversy over his confirmation has taken over the airwave, Onnoghen, on Thursday, February 2, dissociated himself from “threats” and “ultimatum” being issued by various interest groups to President Buhari over the delay in sending his name to the Senate as the substantive CJN.

While commending Nigerians for showing interest in the appointment of the substantive CJN to oversee the affairs of the judiciary, Justice Onnoghen said the president “does not need any threat or ultimatum to perform his constitutional duties.”

In a statement issued by Awassam Bassey, his senior special assistant on Media, Ononghen said that the president should be given a free hand to perform his constitutional duties concerning the appointment of a substantive CJN.

Will the president appoint Onnoghen after his three months acting period ends? Only time will tell. But from the current standpoint, the president appears to be at cross roads; will he save his political face and follow the tradition or damn the consequence and follow his conviction? It is only a matter of conjecture for now.

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