AN Igbo proverb says that if a man knows a thing that will bring confusion and trouble let him refrain from doing it.
The law profession is one where seniority is treated with the highest regard in appointments and practice. It flows from the National Judicial Council, NJC, the highest policy making organ for the law profession. Since our new democratic experience from 1999, the recommendations of the NJC for the position of Supreme Court of Nigeria has been held in highest honour, but recent developments give many cause for concern.
Of the three constitutionally independent arms of government in Nigeria, the Presidency, the Legislature, and the Judiciary, the Presidency has shown tendencies to attempt to run over the other two since the All Progressive Congress, APC, came to power with the mantra of Change in 2015. The Senate president, and his deputy have been dragged to court over assets declaration and forgery charges, the members of the House of Representatives have had to face all kinds of disgrace over padded budget, etc. Judges have been denigrated, intimidated, and insulted in so called “Sting Operations” of the Department of State Service, DSS.
Now, it appears the Presidency is poised to engage the Judiciary in treachery dance that will undermine its coherence. The former Chief Justice of Nigeria, Hon. Justice Mahmud Mohammed, GCON, retired from service on November 10, 2016. True to the type, the National Judicial Council NJC, promptly recommended Hon. Justice Onnoghen. President Muhammadu Buhari confirmed his appointment in an acting capacity in the same month. But unfortunately,Buhari starts to stall in sending his name to the Senate as required by the Constitution for confirmation as CJN, and time is running.
In Law, we know and say that delay defeats equity, so why this delay by the Presidency? There are currently 17 Justices of the Supreme Court of Nigeria and Hon Justice W S Nkanu Onnoghen, CFR, a Christian, is the most senior, followed by Hon. Justice Ibrahim Tanko Muhammad, CFR, a Muslim. Hon. Justice W.S. Nkanu Onnoghen is from Okurike Town, Biase L.G.A. of Cross River State, and was sworn-in in 2005. Hon. Justice Ibrahim Tanko Muhammad is from Doguwa-Giade, Giade LGA of Bauchi State, and was sworn-in in 2007.
This delay is giving those of us whose eyes were opened to the unjust ethnic and religious plots in this nation from the way Goodluck Ebele Jonathan, GEJ, was hounded out of office in 2015, and the goings on till date, some grave concern for the Judiciary. Section 231, of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which governs the appointment of the Chief Justice Nigeria stipulates that:
(1)The appointment of a person to the office of the Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to the confirmation of such appointment by the Senate.
(2)The appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.
(3) A person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practice as legal practitioner in Nigeria and has been so qualified for a period of fifteen years.
(4) If the office of the Chief Justice 0f 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 that office has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.
(5) Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4), of this section 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 elapsed.”
Going by precedent, the most senior Justice succeeds the outgoing CJN. While the NJC, followed seniority in forwarding their nomination to the President since October 11, the nomination was yet to be forwarded to the National Assembly for screening and confirmation till date.
Could this delay be another form of dance by the Presidency? We have seen the Crocodile dance, Python dance, Could this be the Hawk dance of power between the Presidency and Judiciary or simply the result of the mixture of ethnic and religious politricks which seems to be pervading all spheres of decisions by government especially in sensitive appointments since May 2015?
Whatever the reasons for this delay, the result will not augur well for the stability of the Judiciary, and must not be allowed to stick. Hon Justice Onnoghen is acting today under Section 231 subsection 4, and the fear is that his confirmation may be caught by the dreaded subsection 5. It is dreaded because it strangely provides opportunity for a prying Presidency to twist the arm of the Judiciary. Politicians are capable of anything and Army generals don’t stop fighting even in politics and when they say they are retired.
Subsection 5, of Section 231 of the constitution is dreaded because it can become a terrible instrument in the hands of a manipulative President, a highly ethnic President can use it to cause trouble for the Judiciary. It is dreaded because it allows a President to do something which can cause trouble legally. It is dreaded because if used as it looks in this case, it can permanently introduce politricks, gerrymandering, and unimaginable machinations into the selection and appointment of the high judicial officers in Nigeria.
If by end of next month the appointment of Hon.Justice Onnoghen as CJN is not made he may be permanently foreclosed. It will be most unfair, and while opinions and choice may differ naturally, in law, the Rule of Seniority must be preserved in the best interest of our beloved profession and nation.
Mr. Clement Udegbe, a lawyer wrote from [email protected]