The uncertainty surrounding succession to the office of the Chief Justice of Nigeria (CJN) has persisted even as the Presidency said Wednesday that an acting CJN would be sworn in today by President Muhammadu Buhari.
The president’s failure to appoint a replacement for Justice Mahmud Mohammed, whose tenure lapsed 12 midnight Wednesday, had threatened to create a leadership vacuum in the judiciary.
But the Senior Special Assistant to the President on Media and Publicity, Malam Shehu Garba, said Wednesday that there was no prospect for confusion as the president would inaugurate an acting CJN later today.
“An acting CJN will be sworn in by President Muhammadu Buhari at 2.00 pm Thursday,” he stated in a text message, adding that he had no information about who would be appointed into the office.
“The Attorney-General of the Federation will present the person to the president tomorrow for swearing-in,” he said.
A reliable source, however, said Wednesday that the most senior justice of the Supreme Court, Justice Walter Onnoghen, might be the choice of the president in line with Section 230 (4) of the 1999 Constitution as amended, which provides: “If the office of the 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.”
By virtue of Section 231 of the 1999 Constitution as amended, it is the prerogative of the president to appoint a CJN.
Section 231 (1) explicitly provides: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.”
At its emergency meeting held on 11 October, 2016, the National Judicial Council (NJC) recommended Justice Onnoghen, being the most senior justice of the Supreme Court, for consideration for appointment as CJN.
But the process of appointment was stalemated by the failure of the president to indicate his acceptance of the NJC recommendation by forwarding its nominee to the Senate for confirmation.
Although in law, the president is not bound to accept the NJC recommendation, he could also not bypass the council in making the appointment.
If for any reason, the president does not accept the NJC recommendation, he is at liberty to ask the Council to recommend to him another suitable candidate for the office.
Senior lawyers said yesterday that unless the president exercised his powers under Section 230 (4) of the Constitution, there might be a leadership vacuum that could precipitate a constitutional crisis in the third arm of government.
The lawyers argued that except the president activated this section of the Constitution, the most senior justice of the Supreme Court could not automatically assume the leadership of the judiciary.
By swearing in someone in an acting capacity today, the president would have activated this proviso even as he leaves in abeyance the process of appointing a substantive chief justice of the federation.
Last Monday, a Senior Advocate of Nigeria, Chief Sebastian Hon, called on the president to act with dispatch and ensure that the name of the next CJN was forwarded to the Senate for clearance.
Hon, in a statement, said it was scary that the name of the next CJN had not been sent to the Senate with less than a week before the incumbent, Justice Mohammed, would retire.
He said: “The tenure of office of the incumbent Chief Justice of Nigeria, Mahmud Mohammed, will expire at 12 midnight on 9th November, 2016.
“The name of Hon. Justice Walter Onnoghen, the next most Senior Justice of the Supreme Court, has since October 10, 2016, been forwarded to the president, who is expected, constitutionally, to forward it to the Senate for confirmation.
“Till this moment, Mr. President has not forwarded Justice Onnoghen’s name to the Senate for confirmation. This is scary, to say the least.
“Senate confirmation hearings are not jamborees but are grave constitutional exercises, requiring incisive investigative and at times confrontational posturing. In other words, the Senate needs to obtain the biodata of the CJN nominee ahead of time, to enable the upper legislative chambers to conduct a thorough investigation cum confirmation exercise.
“The time to act is now, as the Senate must confirm Justice Onnoghen latest on Tuesday, to further enable his swearing-in just before or just after Justice Mahmud bows out.
“The image of the Judiciary has nosedived in the recent times; and Mr. President must be seen to be preventing any further dent on the image of this crucial arm of government.
“Mr. President should once again act as the father of the nation, by forwarding Justice Onnoghen’s name for confirmation – since he is the only southerner entitled to occupy the seat of the CJN for close to 30 years.
“This gesture will go a very long way in cementing our sectional divides. Again, the time to act is now!”