The fate of the Acting Chief Justice of Nigeria
On November 10, 2016, upon the retirement of the then Chief Justice of Nigeria, Justice Mahmud Mohammed, who attained the mandatory retirement age of 70 for Supreme Court Justices, the President appointed the next most senior judge of the court, Justice Walter Onnoghen as the Acting Chief Judge of the federation. Apparently, President Buhari relied on Section 230 (4) of the 1999 Constitution (as amended) to make the appointment. But going by section 321 (5) of the Constitution, Onnoghen can only act in that capacity for three months. Specifically, the section provides that the position of the Acting Chief Justice “shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appoint a person whose appointment has lapsed. This simply means that if his name is not forwarded to the National Assembly for Confirmation by February 10, he will cease to function as the Chief Justice and can no longer be appointed to that position.
The suspense and uncertainty over the fate of the Acting Chief Justice is not ideal and will harm the judiciary in many ways. The judiciary is the third arm of government and is entitled to a substantive head just like the executive and the legislature at all times. The uncertainties could derail reforms in the justice sector, which is so crucial and critical to the war against corruption and the prompt delivery of justice to all and sundry. Just to be sure, the National Judicial Council (NJC) had, in fulfilment of its constitutional function, on October 11, 2016, recommended Justice Onnoghen to be appointed the CJN on the retirement of Justice Mohammed.
Recently though, rumours emanating from presidency indicate that the delay in forwarding Justice Onnoghen’s name to the National Assembly is in connection with the investigation of judges of the Supreme Court. The source said the President will not send his name until he is given a clean bill of health by the investigating agencies. But this is absurd. In the wake of the raid on the residences of some judges last year by the Department of State Services over allegations of corruption, the agency specifically came out to absolve Justice Onnoghen and stated categorically that he was not on the list of those being investigated. How he suddenly came to be on the list is baffling?
Besides, investigations should not preclude him from being the Chief Justice of Nigeria. The constitution is clear on the tenure of an Acting Chief Judge of the federation. After three months, he cannot be reappointed again. It is either he is confirmed now as Chief Justice or he loses out completely. Any investigations that should be conducted would have been done before now to avoid creating the current lacuna and anxiety in the judiciary.
What is more, there is a process to the selection of the person to become the Chief Justice of Nigeria, which was rigorously and painstakingly done by the National Judicial Council – the body constitutionally empowered to nominate a person to such position. It is our position that if the process that threw him up was very thorough and credible, the President ought to send his name as recommended by the NJC to the Senate for ratification. The only exception to this is if there is material evidence to show that he is not qualified to hold the position of the Chief Justice of Nigeria – and there has been none yet. Therefore the excuse that his confirmation will have to await the conclusion of investigation is not tenable.
We urge the President to act in line with the recommendation of the NJC or state clearly why he will not. Keeping the judiciary in limbo over the issue does great harm to that arm of government an