By Davidson Iriekpen
Following President Muhammadu Buhari’s
decision to extend his medical vacation indefinitely in the United
Kingdom, an air of uncertainty has fallen over the judiciary and the
country at large over the fate of the acting Chief Justice of Nigeria
(CJN), Justice Walter Onnoghen, whose tenure in an acting capacity will
expire on Friday.
Despite the recommendation of the
National Judicial Commission (NJC) to the president that he be appointed
the substantive CJN after Justice Mahmoud Mohammed’s retirement in last
November, his position as the most senior justice of the Supreme Court
and by convention next in line, Buhari ignored the recommendation and
appointed Justice Onnoghen as the acting CJN for a tenure of three
months.
Should the president fail to send his
name to the Senate for confirmation as the substantive CJN before his
tenure in an acting capacity lapses on Friday, Justice Onnoghen from
Cross Rivers State and the first southerner to become eligible for the
position in 30 years, will become ineligible.
Accordingly, all eyes will be on acting
President Yemi Osinbajo in the next five days to decide whether Justice
Onnoghen’s name should be sent to the Senate as the substantive CJN, or
allow it to lapse.
Reacting to the development, a former
President of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba
(SAN), said the problem surrounding Justice Onnoghen’s appointment
stemmed from the NJC, which has been emasculated and has not fully
exercised its constitutional powers.
Speaking to THISDAY, he said the process
of appointing a CJN starts with the Federal Judicial Commission (FJC),
which draws up a shortlist of three justices for consideration for the
post in order of seniority and sends the list to the NJC.
“Once the NJC gets the list, it makes
its recommendation to the president, and constitutionally, the president
can either accept or reject the person that has been recommended to him
as the CJN.
“He cannot make the person recommended by the NJC the acting CJN because there is no provision in the constitution for that.
“The only time the president can appoint
an acting CJN is in the event the substantive CJN becomes
incapacitated, or is forced to step down before the end of his tenure
for charges of corruption or misdemeanor.
“So he had no powers to appoint Justice
Onnoghen the acting CJN, as the constitution only allows him to accept
or reject the recommendation of the NJC.”
Agbakoba blamed the situation that has
arisen on the erosion of powers of the NJC resulting from its
indecisiveness and red tape over the corruption allegations against some
Supreme Court justices and other members of the bench.
“Due to the corruption charges which
have tainted the judiciary, the NJC has lost its voice; it is completely
timid and has allowed its constitutional authority to be eroded,” he
said.
Agbakoba cautioned that should Osinbajo
allow Justice Onnoghen’s tenure to lapse without sending his name to the
Senate for confirmation as the substantive CJN, the issue of who will
become the next CJN would become a matter of conjecture.
However, another past President of the
NBA, Chief Wole Olanipekun (SAN) was of the view that Osinbajo as the
acting president has the full powers to either send the name of Justice
Onnoghen to the Senate or re-appoint him in an acting capacity.
Olanipejun said under the law, anybody
acting as the president, has the full powers of the president to carry
out the functions of the president.
He said since it was Osinbajo that sent
the name of the acting EFCC Chairman, Ibrahim Magu to the Senate for
confirmation last July, he could equally send the name of Justice
Onnoghen to the senate on Buhari’s behalf.
“He has the full powers under the law to
send the Justice Onnoghen’s name to the Senate or re-nominate him for
another three months. Don’t forget that it was in Buhari’s absence that
Magu’s name was sent to the Senate. If he could do that then, he can do
same for Onnoghen,” he said.
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