Historically
“For the first time in the history of
the transition of the Supreme Court, this is the first time that we are
having an acting Chief Justice of Nigeria (CJN). It is not good for the
stability of the Judiciary.
“It is not politically expedient for the
President to do what he is doing now, because Nigerians are more
sophisticated now. They ask questions and a lot of political meanings
are being read into this appointment.
“This Acting CJN has been on the Supreme
Court Bench. This is a man called to the Bar since 1978. So what reason
does Mr President have, not to submit his name to the Senate?
The Constitution
“Constitutionally, I do not think that
the President can just keep quiet and not revert to the National
Judicial Commission (NJC) or the Senate. He owes the entire nation a
duty to say “look, I’m not appointing this person; this is the reason”.
We are entitled to know why a person who has gone through a process at
the Federal Judicial Service Commission (FJSC), who has gone through a
process at the NJC, and who has been recommended to the President, has
not been appointed. He is duty bound to explain why he is not
appointing, because the NJC has become functus officio. It cannot
recommend any other person, until the President either accepts or does
not accept this one. In the case of non-acceptance, when the reasons for
the decision are made known, Nigerians must be able to verify them. The
NJC submitted only one name, which effectively limits the choice.
“The appointment of the CJN is governed
by Section 231 of the 1999 Constitution. There is no provision for
political considerations and it could be dangerous for us to read a
political meaning into the appointment to the office of the CJN. Nigeria
is not like USA, where Judges are members of political parties. I am
not aware of any judicial officer in Nigeria that is a member of any
political party. So the President has no political choice to make. This
is more of a constitutional breach on the part of the Executive.
“The President cannot reject the name of
his Lordship, Honourable Justice Walter Nkannu Samuel Onnoghen and
submit another name that is not recommended, because it is a tripartite
or even a four-way constitutional procedure. The FJSC advices the NJC
that outside the name of Lord Justice Onnoghen, this is the person we
have recommended. NJC would then meet to consider that person and then
recommend that person to Mr President. Mr President will then have to
appoint that person, subject to confirmation by the Senate. So until
that step by step procedure is taken as set out in the grundnorm, the
Constitution, any type of appointment will be unconstitutional, an
aberration. Therefore, I do not think that the President will do so,
because he has no constitutional power to do so.
“The Constitution provides that the
acting appointment is for a period of three months. But the NJC can
still, by virtue of Section 231(5) of the 1999 Constitution recommend
that his Lordship should still continue in the acting capacity, and the
President is duty bound to so appoint him. But if the NJC fails to do
the re-recommendation, and the President maintains to do the
re-recommendation, and the President maintains the lackadaisical
attitude of not submitting his name, then the Constitution says that the
next most senior Supreme Court Justice becomes the Acting CJN. And I
only say that God forbid that this should happen, because that would
create instability and unseriousness in the eyes of the International
Community. It will be seen in their eyes, that a very serious arm of
government which is supposed to be independent, is with respect, being
subjected to political manipulation.
Acting CJN’s Policies
“The Acting CJN has rolled out judicial
policies that some of us believe that if they are allowed to be
implemented, would help the speedy dispensation of justice, especially
in the commercial sector, in this country. If we have a pragmatic CJN
who has rolled out good policies, one would expect the Executive who has
a constitutional responsibility to send his name, so that the man can
sit down to see to the effective and effectual implementation of these
policies, so that we can have quick economic recovery via court
decisions, and not the hitherto delay in administration of justice.
“The Bar has spoken that delay is dangerous and we have no cause to say that the Bar is wrong.
Federal Character
“There is a federal character provision
in our constitution that says that appointments to various offices,
including judicial officers, shall reflect federal character. It is not
politically expedient for the President not to do the appointment,
because people are now speculating political exclusion even though the
office of the CJN is not a political office. But people believe and
rightly so, that his Lordship is not being considered because of the
geographical place where he comes from. Whether this is right or not,
that is the perception.
“This government has so many wars to
contend with, the war of poverty, the war of the belief of the Nigerian
people that the suffering that they are facing now is a function of
ineptitude of government. Whether this is right or not, that is the
people’s perception.”
Jibrin Okutepa, SAN
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