A Senior Advocate of Nigeria, Wole Olanipekun, has just raised a most vital point in a statement entitled “The Imperative of Appointing and Swearing-in a Substantive Chief Justice of Nigeria,” where he cites the provisions of Section 231 (1) and (4) of the Constitution of the Federal Republic of Nigeria. The Sections speak to the appointment of a person to the office of Chief Justice of Nigeria. It provided that the appointment shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.
While that appears simple enough, the Section provides that “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.”
This last part is exactly what happened on the 10th of November last year when the seniormost Justice on the Bench, Walter Onnoghen was appointed by the President Buhari as Acting Chief Justice of the Federation following the mandatory retirement of Chief Justice Mahmud Mohammed (as he then was) at the statutory age of 70.
It now exactly 11 days to the expiration of the 3 months window given by the Constitution for the Presidency to get all the advice it needs and recommendations it can get from the NJC in order to forward a name to the Senate for confirmation as Chief Justice of Nigeria.
In fact, according to Chief Olanipekun, the “NJC had completed its constitutionally vested duty, thus, becoming funtus officio. It can no longer revisit, review or re-examine the recommendation it has made. Section 158(1) of the Constitution guarantees not just the independence of the NJC, but also the sanctity of the decision it has arrived at. The NJC has no constitutional latitude to approbate and reprobate on the subject. In the face of a definitive recommendation by the NJC to Mr. President for the appointment of a particular Justice as the Chief Justice of Nigeria, Mr. President cannot fall back on the provision of Section 231(4) to appoint that same Justice as the acting Chief Justice of Nigeria.
“With every sense of responsibility, Section 231(4) will come into play if, for example, after the receipt of the NJC’s recommendation, the President has forwarded the name of the Hon. Justice Onnoghen to the Senate, and as at November 10, 2016, when the last holder of the office of Chief Justice of Nigeria retired, the Senate had not reverted to the President, confirming the appointment or deciding otherwise. Then, there would have been an interregnum.
“With the situation of things whereby the NJC has made recommendation to Mr. President under Section 231(1), the said sub-section and sub-section (4) have become mutually exclusive. In its clear wordings, the Constitution does not expect that an interim appointment should be made in the circumstances. By its tenor and spirit, the Constitution does not contemplate it.”
While the Senior Advocates fears stem from a disruption of the succession tradition (which is as valid a fear as there can be), there is an ven more pressing problem. It is the same problem we have always complained about. The remnants of military tendencies that President Buhari exhibits.
He has now perfected the art of “I do not have to adress issues that I do not want to” and he is being aided by his media helps who share the incorrect stance at every opportunity and without fear of the mandate of the people.
What reason does the President have for not forwarding or rejecting the recommendation of the NJC? Nothing whatsoever. Since he hasn’t communicated any reason with us.
It is the kind of non-chalance and lack of immediate and decisive action that should never find its way near Aso-Rock. The no-care-in-the-world stance is even more of an insult to Nigerians who will eventually suffer when there is no sitting CJN to check the execesses of the executive and legislature. Nor a complete quorum at the Aoex court that ought to be last hope of the common man.
The lack of a Chief Justice is going to mark the beginning of terror in the shape of injustice in Nigeria and bo one needs to be reminded that the suppression of the judiciary was one of the hallmarks of Military leadership in Nigeria. The kind of disorderliness that the President promised that he’d left behind in 1984 when he begged millions of Nigerians for a chance to be our servant for four years.
Someone needs to remind the President what his job is in this country and if he refuses to listen, the next 11 days may be all we have to help him understand that he does not reign Supreme.
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