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Buhari, Justice Onnoghen and CJN succession tradition

By Monday, January 9, 2017, Justice Walter Samuel Nkanu Onnoghen would be three months in office, as Acting Chief Justice of Nigeria (CJN). Appointed and sworn in as Acting CJN on November 9, 2016 by President Muhammadu Buhari, he succeeded Justice Mahmud Mohammed, who retired the next day after attaining the mandatory retirement age of 70. When he eventually becomes substantive CJN, he will be the 16th since Nigeria attained independence in 1960. In appointing Justice Onnoghen as Acting CJN, President Buhari relied on 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.” Justice Onnoghen, at the time of his appointment last year, was the most senior justice of the Supreme Court, having been appointed to the apex court in 2005. Indeed, Justice Onnoghen’s appointment as Acting CJN did not just happen. He had been recommended by the National Judicial Council (NJC) on October 11, 2016 to be appointed the CJN. The NJC followed the tradition, wherein the most senior justice of the Supreme Court assumes the office of CJN, when the sitting one retires. This practice has subsisted in the last couple of years, ensuring stability. Therefore, with the recommendation from NJC, President Buhari is expected to nominate Justice Onnoghen, as CJN to the Senate for confirmation. And the Senate is required by law to look at President Buhari’s nomination, screen Justice Onnoghen and confirm his appointment or otherwise. Incidentally, the constitution provides a three-month window within which a new CJN should be appointed, from the time the last person steps down from office. On January 9, 2017, Justice Onnoghen would have functioned, as acting CJN for three months. With the constitutional provision in mind, Nigerians have, therefore, waited for three months for Justice Onnoghen’s name to be forwarded to the Senate for confirmation as CJN. This has not happened. The implication is that Justice Onnoghen’s acting function would be extended by, say, another three months, within which President Buhari must do the needful. The pertinent questions, are: Why has President Buhari not sent Justice Onnoghen’s name to the Senate for confirmation as CJN? Why didn’t President Buhari forward to the Senate Justice Onnoghen’s name before the former Justice Mohammed retired? The latter question is germane since the NJC recommended Justice Onnoghen for appointment on October 11, 2016, one month before Justice Mohammed’s retirement. Had things been done properly, a new CJN would have emerged even before the last one retired. Yes, government appoints people to offices and knows when their terms would expire. Being proactive means nominating a replacement ahead of the expiration of the term of office, just as a new president or governor is elected before the tenure of the sitting one expires. But owing to government’s failure, appointments are delayed, thereby giving room for lobbying and speculations, which are unhealthy for any system. President Buhari should take measures to ensure that Nigeria gets a substantive CJN in the next coming weeks. He should send the name of Justice Onnoghen to the Senate for confirmation. Delaying to do so would lend credence to the suspicion that the Presidency does not want to have a southerner emerge as next CJN. This insinuation has been rife, as Justice Onnoghen is the first southerner, in 29 years, to be acting CJN. To be sure, in the last 29 years, eight justices of the Supreme Court from the northern part of the country have taken turns in occupying, one after another, the office of the CJN. Justice Ayo Irikefe, who retired in 1987, was the last southerner to occupy the position. The fact that eight northerners have occupied the office of CJN back-to-back, in the last 29 years, says much about the appointment of justices of the Supreme Court. There is obvious lopsidedness in the appointment of justices of the Supreme Court, by successive governments. It will pay Nigeria better if President Buhari follows the widely accepted norm in the emergence of the CJN. Since the most senior justice of the Supreme Court has always emerged as the new CJN, there is nothing on ground to support use of a new system. This is moreso since there is no blight on the personality of Acting CJN. Interestingly, in the last three months that Justice Onnoghen has functioned as acting CJN, the NJC has risen up to expectation. For one, about a month ago, the NJC, presided over by Justice Onnoghen, did bare its fangs when two judges were sanctioned for misconduct in office. For the avoidance of doubt, the NJC, under the chairmanship of Justice Onnoghen, had, at the end of its 80th meeting held from December 14-15, 2016, ordered the suspension of Justices Ugbo Ononogbo of Abia State and Nasir Gunmi of Zamfara State High Court over alleged malpractices. The two judges were ordered to vacate their offices, pending the approval of recommendations for their dismissal and compulsory retirement by Abia State Governor Okezie Ikpeazu and Governor Abdul Aziz Yari Abubakar of Zamfara State, respectively. The NJC took the action against the two justices over allegations of misconduct, which were investigated and they were found culpable. Justice Onnoghen has also shown that he would uphold the integrity of the judiciary, as CJN. Recently, while administering the oath of office to two new Justices of the Supreme Court, the acting CJN had underlined the importance of defending the integrity and independence of the judiciary. He had pointedly told the justices that the challenges being experienced by the judiciary should “rather spur you on to a greater commitment to defend the integrity and independence of the Judiciary.” He pledged that the NJC, which he chairs, was determined to not only restore confidence in the judiciary but also defend its independence and integrity. Indeed, Justice Onnoghen has, since taking the mantle of leadership at the NJC, harped on the importance of living true to the oath of office by judicial workers. His declaration at the flag-off the 2016 Court of Appeal Justices Conference in Abuja was an attestation to this. He had charged judges/justices: “To remain focused at all times. Be bold and try to resist all forms of undue influence, both external and within. Blackmail in any form must not be entertained. Shun all forms of corruption.” Taking all these together, the exigency of governance demands that President Buhari appoints a substantive CJN. The country has substantive President, Senate President and Speaker of the House of Representatives, representing the other two arms of government. Therefore, the judiciary should not be an exception. President Buhari should, without further delay, nominate Justice Onnoghen as substantive CJN for stability and continuity of a tradition already established in the judiciary. Let us believe that the delay in sending Justice Onnoghen’s name has nothing to do with politics or the shenanigan of those in government. Let us believe the Attorney General of the Federation and Minister of Justice, Abubakar Malami, who stated: “We believe in allowing a system to run its natural course and never put things on hold on account of speculation. It is never about personality but doing the right things and being fair on the system in allowing it to take its natural course.” The nation, therefore, looks forward to seeing the system take its natural course, which means the nomination of Justice Walter Onnoghen, being the most senior Supreme Court justice, as new CJN, as done in the past. Appointing him CJN is not because of where he comes from. It is not owing to sentiment. It is because he merits it.

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