By Ikechukwu Nnochiri & Bartholomew Madukwe
Following the retirement of immediate past Chief Justice of Nigeria, Justice Mahmud Mohammed, who clocked 70 on November 10, 2016, some lawyers have expressed diverse opinions over the refusal of President Muhammadu Buhari to forward the name of Justice Nkanu Onnoghen to the Senate as the substantive Chief Justice of Nigeria (CJN).
President Muhammadu Buhari had on November 10, 2016, Okayed Onnoghen who is presently the most senior Justice of the Supreme Court, to head the Nigeria judiciary in acting capacity. The appointment was based on a recommendation letter from the National Judicial Council, NJC.
Eminent legal practitioners who spoke on the matter included Mr. J. B. Daudu SAN—former President of the Nigerian Bar Association, NBA, Professor Itse Sagay, SAN —Chairman, Presidential Advisory Committee Against Corruption, Chief Mike Ozekhome, SAN;Human rights advocate, Mr. Femi Aborisade, trade unionist and socialist; and Chief Morah Ekwunoh- human rights lawyer.
Daudu said: “It ought to be known that the appointment of a CJN is not the exclusive preserve of the Executive arm of government. It is a tripartite arrangement, which involves the judiciary acting through the NJC by way of recommendation, the executive through the President by way of appointment and the legislature by way of confirmation of the said appointment.
“The question that now arises is why the President will refuse or omit to act on the recommendation of the NJC and instead chose to appoint the NJC nominee in an acting capacity.
“If he is not good for the substantive office why is he then good to act for three months in the same capacity? After all, it is the same security report on the suitability of the candidate that is relied upon by the NJC that the Presidency relies on too.”
Prof Sagay, on his part, pointed out that the number of Justices who have brought ruin to the Judiciary made it necessary for close vetting of candidates for Chief Justice of Nigeria at the Presidential level.
He said the president is not a rubber stamp of the National Judicial Commission (NJC), noting that the body has failed to exercise due diligence in the past when making recommendations to the President.
According to him, “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 Chief Justices of Nigeria. And that became a permanent embarrassment to the Judiciary and Nigeria as a whole.
Sagay, who is a Professor of Law and human rights activist, explained that the Supreme Court was almost abased by the stink of corruption after the 2007 elections that brought Yar A’dua to power, and Justice Onnoghen was among the three Justices at the apex court.
Ozekhome observed that in the last 30 years when Justice Mohammed Bello became athe CJN, till 11th of November, 2016, when Justice Mahmud retired, all the Chief Justices of Nigeria hailed from the northern part of beleaguered Nigeria.
He stated: “The last time a South-South person smelt the exalted seat was between 1985 –1987, over 30 years ago, through Justice Ayo Gabriel Irikefe. The last time I checked, this country belongs to us all. It was therefore with bated animation and curious anxiety, that the country waited for the appointment of Onnoghen.
“It is crystal clear from the provisions of section 231 (1) and section 21 (1) to the third schedule (part 1) of the 1999 Constitution, that once the NJC has recommended a name to Mr. President for appointment, the President’s function at that stage is simply ceremonial to forward same to the Senate for confirmation. It is the Senate, not the President, that does the screening, to determine whether or not the person so recommended by the NJC meets the criteria set out in section 231 (2)s which states:
“A person shall not be qualified to hold the office of CJN or a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.”
According to him, if Onnoghen was found worthy to be sworn in as acting CJN under section 231 (4), why not simply forward his name to the Senate for outright confirmation as CJN under section 231 (2)?
Ozekhome averred that the President lacks absolute power to determine who becomes CJN, or to side-track or circumscribe NJC’s “recommendation,” or Senate’s subsequent “confirmation”.