On the Onnoghen Confirmation Conundrum

The unusual delay in the confirmation of the next substantive Chief Justice of Nigeria has raised political tensions that should have been avoided, writes Vincent Obia

In a break with prevailing patterns on government/ bench relations, the confirmation of the most senior justice of the Supreme Court, Justice Walter Onnoghen, as the substantive Chief Justice of Nigeria has involved a controversial and longdrawn-out debate. Acting President Yemi Osinbajo sent Onnoghen’s name to the senate for confirmation, Tuesday, February 7, just in the nick of time. The transmission was sequel to a letter by President Muhammadu Buhari, who is currently on medical leave in London, authorising Osinbajo to forward the name of Onnoghen to the senate for endorsement before February 10, when his tenure as acting Chief Justice of Nigeria was to elapse.

Onnoghen’s tenure as acting CJN was also extended by another three months on Wednesday by the National Judicial Council, two days before the expiration on Friday of the three months within which he could constitutionally head the country’s judiciary in acting capacity. NJC did the last minute extension to head off a constitutional – and political – crisis following an unusually long delay by Buari in the transmission of Onnoghen’s name to the senate for confirmation. He has served as acting CJN since November 10 last year, when he was appointed by the president to succeed Justice Mahmud Mohammed, who retired at the statutory age of 70 the day before. That appointment equally came after a brief interval of uncertainty.The normal practice had been to announce the successor before the retirement date of the incumbent CJN.

If the senate gives the nod to Onnoghen’s appointment, he will serve till December 22, 2021, when he will be 70.

The name of Onnoghen, an indigene of Cross River State, in the South-south geopolitical zone, had since October 11 last year been forwarded to the president by the NJC. He was expected to promptly transmit the name to the senate for confirmation in line with the constitution. But he delayed it till last Tuesday.

The curious delay has met an angry response from an ethnically and religiously sensitive populace. It has raised political tensions. Many have interpreted it as an orchestrated move to frustrate the emergence of the first CJN of southern Nigeria origin in 30 years. Such negative sentiments and the tensions that accompany them are certainly not what Nigeria needs at a time like this when everyone’s help is needed in the task of rebuilding the fabric of the country’s nationhood.

The tensions were clearly avoidable, and they could have been avoided if the Buhari administration had handled the sensitive constitutional duty of appointing a CJN with the great degree of circumspection it requires. But the government chose to keep the whole country in the dark about its plans, until tempers began to rise.

Interestingly, however, the response to the delayed presentation of Onnoghen to the upper chamber for confirmation has not played out strictly along ethnic lines. Former military governor of Kaduna State, in the North-west, Colonel Abubakar Umar (rtd), has weighed in with words of support for Onnoghen and rebuke for Buhari. In a recent statement, Umar condemned the president’s refusal to forward Onnoghen’s name to the senate for confirmation as substantive CJN, describing it as unjust. “Without providing any cogent and plausible or believable reason for its failure to forward the name of Justice Onnoghen to the senate for confirmation, the presidency leaves Nigerians guessing and speculating about the reasons,” Umar stated in a release on February 2. He urged the NJC and the senate not to accept any nominee in place of Onnoghen for the CJN post.

Many Nigerians seem not very keen on continuing to allow needless politician-made tensions stick and divide them. Players in all arms of government should strive to encourage – and not dampen – this cooperative and patriotic spirit.

Now that it is the senate’s turn to take action on the Onnoghen issue, Nigerians expect the senators to act with fairness and dispassion. They should, during the confirmation hearing, try to douse all the tension that has surrounded the nominee’s emergence and demonstrate to Nigerians that they still have institutions that cater to all citizens, irrespective of tribe, tongue, and faith.

From what has transpired, it is clear that some persons within the Buhari system do not want Onnoghen as CJN, which raises questions that may need to be redressed by the constitution. This is without prejudice to whatever may be the outcome of the confirmation hearing on Onnoghen in the senate, which is now on recess.

The criteria for the selection of the CJN are set out in section 231 of the country’s constitution. Former president of the Nigerian Bar Association, Chief Wole Olanipekun, SAN, had in his interventions on the delay in Onnoghen’s confirmation argued that his appointment as acting CJN on November 10 last year by Buhari was from the beginning a misnomer. This, Olanipekun said, was because the president had ample time to perform his constitutional responsibility of sending the nominee’s name to the senate since October 11 last year, when the name was sent to him by the NJC.The former NBA president maintained that the issue of acting CJN could only have arisen if the president had sent Onnoghen’s name to the senate for confirmation and the latter was unable to take a decision before the date of the previous CJN, Mohammed’s retirement. He accused Buhari of creating a dangerous uncertainty.

Some had also, allegedly, contemplated the idea of bringing a legal practitioner from outside the Bench of the Supreme Court – probably from Onnoghen’s Southsouth – for appointment as CJN instead of him. Though, the constitutionality of this remains unclear, Olanipekun believed the idea should have no place in the current circumstance because the NJC had already recommended someone to the president for appointment as CJN.

The National Assembly may need to look again at the relevant sections of the constitution to see if there are lacunas that would have to be filled to make the process of the CJN’s appointment clearer and less prone to political discretion in future. As Nigerians await the senate’s decision on Onnoghen, it is right and proper for the lawmakers and, indeed, all stakeholders to begin to think of how to avoid a replay of the present controversies.