It is barely seven days to the end of three months interim tenure of Mr. Justice Tanko Muhammad as Acting Chief Justice of Nigeria, having been appointed under controversial circumstances by President Muhammadu Buhari on 25th Jan 2019 following the coupist “suspension” same day of CJN, Mr. Justice Walter Onnoghen (as he then was before his recent notice of voluntary retirement).
Till date, we and Nigerians have not read or heard that the Senate of the Federal Republic of Nigeria has been presidentially communicated with any recommended name(s) to be confirmed as the next substantive CJN. The three months period will elapse on 25th April 2019 and Nigerians of democratic conscience are asking the duo of President Muhammadu Buhari and Vice President Yemi Osinbajo: who is the substantive Chief Justice of Nigeria?
It is now two weeks after the NJC sent its recommendation to Nigeria’s Presidency on the fate of the “suspended” CJN Onnoghen as well as the recommended name(s) for onward transmission to the Senate of Nigeria to be confirmed as the next substantive Chief Justice of Nigeria. It is also eleven days today since the “suspended” CJN tendered his notice of voluntary retirement as “Chief Justice of Nigeria” to the Presidency; yet from 3rd and 5th April 2019 till date; the Presidency has refused and failed to do the needful despite dire implications or consequences of such silence and inaction. The grand implication is that by 25th April 2019, Nigeria will neither have “Acting CJN” nor “Substantive CJN”.
It is no longer news in Nigeria and beyond its borders that the Judiciary in the present political dispensation is troubled and traumatised by the central Government headed by Retired Major Gen Muhammadu Buhari and Prof Yemi Osinbajo (a Prof of Law and Senior Advocate of the Supreme Court of Nigeria), but what worries Nigerians most; likewise international people of good conscience is the dire consequences of the silence and inaction of the Administration in the instant case, capable of plunging the country into full blown or general constitutional or judicial crisis.
The Int’l Society for Civil Liberties & Rule of Law is particularly and deeply worried because barely seven days to the 25th April appointment deadline, the Nigerian Government has refused and failed to publicly nominate or transmit to the Senate the name of a serving Justice of the Supreme Court of Nigeria to be confirmed as the next substantive Chief Justice of Nigeria. The Nigerian Government has also refused and failed to publicly accept or speak on the notice of “voluntary retirement” of the “suspended” Chief Justice of Nigeria, Mr. Justice Walter Onnoghen.
Under the existing conventions; likewise several decided cases, “no public officer or public servant including holder of judicial office who retires or offers to retire voluntarily can be forced to continue to serve”. The refusal and failure of the Federal Government of Nigeria to timely perform the two key functions clearly speaks volume of fresh plots by the Government not only to further trouble and traumatise the Judiciary but also to plunge the country into full blown constitutional crisis.
Going by our vast legal knowledge and findings from other legal pundits consulted, the Federal Government of Nigeria, if with no skeleton in its cupboard, ought to have publicly and immediately accepted Mr. Justice Walter Onnoghen’s voluntary retirement (not resignation as widely reported), clearing the way for the Government to send the name of the Acting CJN, Mr. Justice Tanko Mohammad or any other to the Senate for confirmation as Nigeria’s substantive CJN; all in accordance with the 3rd April 2019 decision of the National Judicial Council, which announced that it also communicated the Presidency its decision(s) reached.
By the refusal and failure of the Government of Nigeria to immediately and publicly accept the CJN’s notice of voluntary retirement (as his employers in trust), Mr. Justice Walter Onnoghen is still deemed before man and law as “the suspended but substantive Chief Justice of Nigeria”; meaning further that the “Office of the substantive Chief Justice of Nigeria is presently not vacant”, yet he will no longer continue as the CJN even if he is recalled or his “suspension” is lifted because he has voluntarily retired or issued notice of his voluntary retirement.
Written clearly in black and white or unambiguously, Section 231 (4) & (5) of the Constitution of the Federal Republic of Nigeria 1999, as amended, is a guide. By Section 231 (4), if the office of the 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 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.
And by Section 231 (5), except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment (in acting capacity), and the President shall not
reappoint a person whose appointment has elapsed.
Therefore, the refusal and failure of the Federal Government of Nigeria to timely do the needful is seriously suspicious and capable of plunging the country into constitutional chaos. It further appears that the Buhari/Osinbajo Government has chosen to deepen its pedestrian and chauvinistic politics above the 1999 Constitution and the constitutionalism and the rule of law in Nigeria. The Government’s chronic habit of not doing the right thing at the right time and its reckless resort to crooked technicalities in policies and governance of the country is very despicable and condemnable; pushing the country’s democracy steadily back to the cave.
It has been further alleged by critics that the Nigerian Government’s silence or refusal or delay in publicly accepting Mr. Justice Onnoghen’s voluntary retirement is personal and vindictive including to secure conviction against him at CCT and file fresh charges against him using EFCC; all purportedly designed to be done against him while he still bears the official title of “suspended Chief Justice of Nigeria”; after which his voluntary retirement may be belatedly accepted. This is more so when the CCT is scheduled to deliver its verdict against the “suspended CJN” tomorrow, 18th April 2019.
We hereby call on the Government of Nigeria to end its culture of crooked technicalities in its policies and governance of Nigeria and do the right thing at the right time so as to deepen the growth of democracy and rule of law in Nigeria. Senatorial confirmation of the substantive Chief Justice of Nigeria is totally different from “presidential appointment of CJN in acting capacity” which is nothing than rubber stamping. The Presidency should have acted immediately on NJC recommendation; likewise immediate acceptance of the “suspended” CJN’s notice of voluntary retirement.
Senatorial confirmation of the substantive Chief Justice of Nigeria by majority voice votes or simple majority of the plenary quorum is not a day job or a rubber stamping senatorial duty. “Confirmation process” at the Senate involves drilling, questioning, interviewing and interacting with the nominee(s) and his clarifications on knotty issues; all resulting to his or her rejection or acceptance at the end. To do these, it goes beyond “presidential transmission of the name(s) of the substantive CJN designate and obtainment of the senatorial majority voice votes in his or her favour”.
As part of such senatorial confirmation process, participating senators must be allowed within reasonable time of this ICT age to arm themselves with requisite background, check information and others concerning the nominee’s professional career including his or her vast knowledge and competence or otherwise in the public office he or she intends to substantively occupy (i.e. office of the Chief Justice of Nigeria). Totality of which will be geared towards giving Nigeria a vastly knowledgeable law-lord with unblemished or impeccable character or integrity.
We are aware, too, that the Government of Nigeria is planning to resort to yet another crooked or illegitimate technicality to evade its blunders in the instant case, by engaging in the appointment in acting capacity of another Acting CJN (the next most senior Justice of Supreme Court after Mr. Justice Tanko Muhammad). By Section 231 (5) of the Constitution, Mr. Justice Tanko Muhammad can longer be reappointed in acting capacity for another three months having been appointed for three months in acting capacity. This is more so when it is almost an act of impossibility for the present Senate of Nigeria to presidentially receive the nominee(s), screen and have him or her confirmed as substantive CJN in the next seven days, especially in this Easter period and its parliamentary or legislative break.
By the existing procedures of the Supreme Court of Nigeria, the next most senior Justice of Supreme Court takes over administratively in the absence of Acting or Substantive CJN, after the 25thApril 2019 deadline in the instant case; leaving the Buhari/Osinbajo Administration with only two crooked technical options: appointing another acting CJN for fresh three months pending when the Senate of the 9thNational Assembly will confirm the substantive CJN after its presidential proclamation; or leaving Nigeria without “substantive” or “acting” CJN whereby the next most senior Justice of Supreme Court will be left to administratively oversea the affairs of the Supreme Court.
It is so sad that when other democracies are growing, advancing and expanding with intense speed including those of South America and some black African countries, that of Nigeria under Buhari and Osinbajo is busy boarding a speed train heading back to the cave. It is even sadder that the likes of NJC that would have saved the Judiciary is presently peopled by some persons who constantly go to equity with unclean hands; to the extent that before the nefarious elements within the present Government of Nigeria could sneeze, they have already caught cold and become infested with bacteria of uncleanness.
Written for Int’l Society for Civil Liberties & the Rule of Law by:
•Emeka Umeagbalasi, Board Chair;
•Obianuju Joy Igboeli, Head, Civil Liberties & Rule of Law Programme;
•Chinwe Umeche, Head, Democracy & Good Governance Programme;
•Chidimma Evan Udegbunam,
Head, Campaign & Publicity Department