What next for Onnoghen after Feb. 10?
The 1999 Constitution may have envisaged a situation where the executive represented by the president would want to use discretion in the appointment of a substantive Chief Justice of Nigeria (CJN), so it expressly took care of that situation.
The position of the law today, therefore, is that the appointment of the CJN does not border on discretion and gives no room for delay from the executive.
Already, several law suits have been filed in separate courts nationwide seeking interpretation of Section 231 of the Constitution. Lawyers have contended that the appointment of Justice Walter Samuel Nkanu Onnoghen in an acting capacity instead of as a substantive CJN is “an aberration of the principles of separation of powers, an affront and erosion on the independence of the judiciary and an abuse of constitutional powers”.
Under Section 211(1) of the 1979 Constitution, the president had discretion as it provides that “the appointment of a person to the office of the CJN shall be made by the president in his DISCRETION subject to confirmation of such appointment by a simple majority of the Senate”.
However, this discretion is no longer there and it is now a mandatory duty imposed on the president.
Section 231(2) of the 1999 Constitution provides that “the appointment of a person to the office of CJN shall be made by the president on the recommendation of the National Judicial Council (NJC) subject to confirmation of such appointment by the Senate”. This provision, therefore, makes it mandatory, a command that leaves the president with no choice. The office of the CJN became vacant following the retirement of the former CJN, Justice Mahmud Mohammed. The FJSC and the NJC are bodies established by Section 153 of the Constitution. The power of the president to appoint the CJN, according to Section 231, must be based on the recommendation of the NJC pursuant to the nomination of the FJSC, both of which have the exclusive duty of assessment and evaluation necessary for the appointment of the CJN.
The FJSC which is headed by the incumbent CJN, screens the applicants for the position of the CJN, shortlists two or three names to the NJC, which screens them thoroughly and one or two are recommended to the president for appointment as CJN.
Though Section 231(3) makes if look simple that anybody aspiring for the post of CJN would have practiced for 15 years, it is not that simple. The section does not give the president the power to choose whoever he wants to be the CJN.
Hence all applicants for the post of CJN shall apply to the NJC and can only be shortlisted if they adequately and competitively meet the criteria spelt out in the NJC 2014 Revised Rule and Guidelines. They must also scale through the screening/interview exercise before recommendation by the NJC to the president for appointment as CJN.
Major stakeholders are of the view that between October 13, 2016, when Onnoghen was recommended for appointment to the office of CJN and the 9th of November 2016, when the office became vacant, there was adequate time for the President to forward Onnoghen’s name as the substantive CJN to the Senate for consideration and confirmation.
Many lawyers have insisted that based on the provisions of the constitution, the president cannot do otherwise but appoint the CJN based on the recommendation of the NJC.
Within the period under “The NJC can salvage the situation by recommending Onnoghen again to the president. And the president can save us from crisis by accepting the recommendation” consideration, Daily Trust on Sunday gathered that President Buhari on 4th November 2016 appointed two Justices of the Court of Appeal - Justices Sidi Dauda Bage and Paul Adamu Galinje to the Supreme Court on the recommendations of the NJC, based on the report of the Federal Judicial Service Commission (FJSC).The President immediately sent the appointments to the Senate and by 17th November 2016 their appointments were considered and confirmed.
In a telephone chat with Daily Trust on Sunday, Joseph Otteh, executive director Access to Justice (A2J) a nonprofit making organization said that Buhari is “over riding the recommendations of both the FJSC and the NJC by not appointing Onnoghen as substantive CJN”.
The way to over ride NJC and FJSC’s decisions, according to Joseph Otteh, is to refuse to send Onnoghen’s name for confirmation.
He said that after the initial three months acting period, Onnoghen cannot continue acting and that the next most senior justice of the Supreme Court has to be appointed for another three months.
“That way, the merry-goround continues until we get to a log-jam where the president can no longer send names for acting appointment because until the FJSC and the NJC recommend a name to the president, nobody can be appointed. It is very disquieting, the situation we have found ourselves in,” he said.
Otteh added,“the NJC can salvage the situation by recommending Onnoghen again to the president. And the president can save us from crisis by accepting the recommendation”.
He maintained that the president cannot unilaterally determine who will become the next CJN.
Barrister Ibrahim Mark, former Secretary General of the Nigerian Bar Association, on his part said that after the initial three month period of acting as CJN, Onnoghen will cease to be acting CJN.
“The Senate will have to confirm any further extension of the three months which will expire in a few days time for him to remain CJN”, he said. He lamented the delay in the matter, saying “it is unnecessary”.
Another lawyer who spoke on the condition of anonymity said “the president should not take a decision that will make him look like he is against a particular part of the country”.
He maintained that the Constitution is very clear on the matter.
“If the three months of acting expires, nothing stops the president from appointing him as substantive CJN,” he added.