An Endless Wait For The Jurist?

There are several issues about the Nigerian Constitution which remain unclear or controversial to both lawyers and laymen alike, but the constitutional procedure for the appointment of Chief Justice of the Federation is not one of them.
The tenure of a Chief Justice of Nigeria automatically terminates upon attaining 70 years. Then the National Judicial Council (NJC) will nominate the next candidate for the position, who is usually the most senior justice  on the Supreme Court bench and forward same to the president.
Barring any impediments, the president will send the nominee’s name to the Senate for confirmation. Upon confirmation of the nominee by the Senate, the president will then administer the oath of office and the Chief Judge formally assumes duties. This is usually done few days to the exit of the incumbent.
For instance, the NJC knew Justice Dahiru Musdapher, a former Chief Justice of Nigeria’s tenure would expire on July 15, 2012, and forwarded the name of Justice Aloma Mukhtar to then President Goodluck Jonathan. President Jonathan sent her name to the Senate for confirmation on July 4, 2012. And on July 11, 2012, the Senate confirmed her as the CJN.
The same process occurred when Chief Justice Mukhtar’s tenure drew to a close. The NJC sent the name of the immediate past Chief Judge, Mahmoud Mohammed, to President Jonathan. The Senate confirmed the nominee, and when his immediate predecessor was leaving office, there was no vacuum.
This has been the procedure; well laid out and seamless. But the tradition seems to have been broken when at the expiration of Mohammed’s tenure, the NJC did what was traditional by nominating the most senior judge who happens to be Justice Walter Onnoghen.
But surprisingly, the president, rather than forward his name to the Senate for confirmation, chose to appoint him Acting Chief Justice. For the avoidance of doubt, Justice Onnoghen’s name was forwarded to President Buhari on October 13, 2016; four weeks before the expiration of Mohammed’s tenure. Taken from that date, it is now 90 days when the president received Onnoghen’s nomination.
By February 10th, 2016, Onnoghen will be three months in office in acting capacity. Going by the Constitution, his role in that office may cease pursuant to section 231 (5). That section reads:
“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 lapsed.” It is clear that Onnoghen’s tenure can only be extended upon the recommendation of the NJC.
I cannot remember whether an Acting Chief Justice of Nigeria was ever appointed in the recent past to head the institution. If there was, it must have been several decades ago. The reason is that the constitutional provisions for the appointment of a CJN is very explicit and devoid of ambiquities. The Constitution says that while it is the duty of the NJC to nominate, the president is to forward same to the Senate for confirmation.
The delay in confirming Onnoghen is already arousing curiosities in many Nigerians and sending wrong signals. The position of CJN should not be seen to be monopolised by a section of the country. That is why it is reasonable to expect the president to act very fast to ensure that there is credibility and stability in the third arm of government which he has a responsibility to appoint its head.
The last time someone from the southern part of the country occupied this position was in 1985-1987 when Justice Ayo Gabriel Irikefe was in charge. After him, the baton has moved from one Northerner to the other with little prospects of a southerner occupying the office on a substantive basis.
Justice Mohammed Bello took over from Irikefe and held on to the position till 1995 when Justice Muhammadu Lawal Uwais assumed the office. He retired in 2006. Justice Salihu Modibbo Alfa then came on board. Others who served in that position were: Justice Idris Legbo Kutigi, Justice Aloysius Iyorgyer Katsina-Alu, Justice Aloma Mariam Mukhtar and Justice Mohammed Mahmoud.
The president shouldn’t turn a simple and transparent procedure for appointing a CJN into a complicated one by the unwarranted delay in confirming the Acting CJN. It was for this reason the Ekiti State governor, Mr. Ayodele Fayose, suspected a grand plot to deprive Onnoghen his well deserved appointment as the substantive CJN.
The message is clear that the appointment of Justice Onnoghen in acting capacity without a precedent is simply strange and suspicious. At this time that the nation is experiencing stress and hard time, nothing should be done to threaten our fragile unity. The president needs wisdom to avert this needless controversy.
I, therefore, urge President Buhari to act rightly by forwarding the name of Justice Onnoghen to the Senate for confirmation in the spirit of fairness and equity. Let him be given the opportunity to serve like his predecessors.

Arnold Alalibo