AT its emergency meeting of October 11, the National Judicial Council (NJC) recommended Justice Walter Onnoghen to President Muhammadu Buhari for consideration as the next Chief Justice of Nigeria (CJN). He was to succeed Justice Mahmud Mohammed due for retirement on November 10. A few days before the former CJN retired, the president was yet to act on the recommendation. He neither said anything about the recommendation nor forwarded the name of the nominee to the Senate for confirmation. Eventually, he decided to swear in Justice Onnoghen in acting capacity. So, today, though the constitution envisages that a situation may arise to justify an acting CJN, it is still unclear why the president chose that option when he had enough time to forward the recommended name to the Senate, and the NJC decision was not in any way deadlocked.
It is both wrong and unfair for the president to be silent on the matter. It breeds a lot of speculations and rumours about the president’s intentions. One of such speculations is that the acting CJN is corrupt. But when the Department of State Service (DSS) recently raided the residences of some judges, and Justice Onnoghen’s residence was rumoured to be involved, the secret service immediately issued a rebuttal, saying: “The service would want to clearly state that it has never invited Justice Walter Nkanu Onnoghen for investigation, neither is he being investigated by the service.” If the justice is not being investigated and there are neither petitions nor evidence of corruption against him, why was his name not forwarded to the Senate for confirmation? If the president is yet to make up his mind, surely he will have his reasons. What are they?
The other speculation involves the politics of appointments under President Buhari. Should Justice Onnoghen be confirmed, he would be the first CJN from the southern part of Nigeria in 29 years. So, even if the president has genuine reasons not to want Justice Onnoghen as the substantive CJN, he has sufficiently given indication by his somewhat narrow base of appointments that suggests ethnic preferences that he is neither altruistic nor nationalistic. Many Nigerians will see his reluctance to heed the NJC nomination as further proof of his sectionalism. Had his appointments been representative, and had Nigerians seen him as a patriot and national unifier par excellence — someone completely blind to ethnic and religious considerations — he would have been able to convince Nigerians about his objections to the appointment of a substantive CJN, in case he has any. For whether he likes it or not, it is clear his refusal to immediately forward Justice Onnoghen’s name to the Senate has nothing to do with administrative laxity on his or his team’s part.
Sooner or later, the president will have to do or say something about the CJN. Silence is not an option. He will either forward Justice Onnoghen’s name to the Senate soon or tell the country why he is hesitating. Judging from his actions and appointments since his assumption of office last year, and the discomfort and anguish these have caused many people, the president will find it extremely hard to justify approving a different CJN other than Justice Onnoghen, especially because the next in line to the Cross River State-born jurist hails from the North. Appointing an acting CJN is unprecedented. The constitution that makes provision for this option does not envisage that without reason, and suddenly, the president can simply embrace that discomfiting alternative, particularly in the judiciary.
In the past few months, the Judiciary has been assailed on every side by law enforcement agencies and critics. While the former CJN and all other stakeholders acknowledged judicial corruption and the terrifying implication for the cause of justice, they nonetheless tried to defend the judiciary’s independence, sensing that far beyond the issue of corruption, the third arm of government was under invasion. Justice Mohammed barely sustained the independence of the judiciary during his tenure. How far the acting CJN will defend that independence remains to be seen, for he is assuming office at a time when jurists need all the wisdom in the world to navigate the treacherous rapids upon which the judiciary could easily capsize or shipwreck entirely. In acting capacity, the CJN could be tempted to concede too much, for his legitimacy is already called into question by the nature of his appointment. The power and prestige of that office are gradually being eroded. Indeed, in his first speech after being sworn-in, Justice Onnoghen assured the president of “…The fullest cooperation of the third arm of government in the continuation of the war against corruption and misconduct in the judiciary.” Those who have pressured the judiciary into some form of penance and rectitude in the past few weeks expected such an ingratiating statement. But to the judicious, that statement is fraught with a lot of anxieties.
It is not the business of the judiciary to support or oppose the policies and programmes of the government of the day. Their duty is to dispense justice, pure and simple. By promising support, the wary could read troubling meanings into the acting CJN’s statement, fearing that the judiciary could begin bending over backwards to accommodate the judicial malfeasance of a Buhari presidency that shows itself increasingly intolerant of criticisms and dissent, whether from those who genuinely disagree with government policies, whom the presidency scornfully labels as naysayers, or those who caution against the presidency’s frightful meddlesomeness in the judiciary, but whom the government dismisses as part of the corruption force fighting back. The acting CJN’s statement may, therefore, be more troubling than its denotative meaning. Under the Buhari presidency, especially at a time many Nigerians are carried away by emotions rather than substance, the country desperately needs a truly independent and ethically sound judiciary. The acting CJN must not be tempted to give in to the government in any way in order not to justify the fears of many Nigerians that the acting appointment is nothing but a tool to subjugate the judiciary and ensure compliance. Justice Onnoghen needs to be resolute in the cause of justice and in the defence of the independence of the judiciary.
In any case, since President Buhari has not explained why he prefers an acting CJN, no one can say for sure what his motives and intentions are. This is dangerous. Yes, somewhere along the line, Nigerian governments imbibed the habit of appointing acting Inspectors General of Police (IGPs); but that nonsense has not filtered into or at least become a habit in the army because of its harmful implications for national security. Appointing an acting CJN is unprecedented and totally undesirable, except of course the government has ulterior plans similar to those of the Borno State government under former governor Ali Modu Sheriff. Senator Sheriff today poses as a nationalist and patriot, but as governor he supervised a disgraceful agenda of ethnic chauvinism in the appointment of his state’s chief judge.
Since the constitution provides for an acting chief judge, the Borno State government kept appointing chief judges in the state in acting capacity, though they were indigenes, until eventually the gangling Justice Kashim Zannah, a Kanuri, came up and was promptly confirmed as the substantive chief judge. Justices Ibrahim Shata Bdilya and Adzira Gana Mshelia, a woman, both acted for three months before being shunted aside. Both Justices Bdilya and Mshelia, a woman, are now in the Court of Appeal. Both are non-Kanuri Christians and believed to come from Hawul Local Government Area. It was even suggested that given the intensity of the terrible politics of the time, had any of the two Borno judges been Muslim but non-Kanuri, he or she would have been sidelined.
It is hoped that the Buhari presidency is not acting out this deplorable script. That is why the president must speak up. Justice Onnoghen, who is probably aware of the chicaneries arrogantly enacted in the Borno State judiciary, will also hope that he is not a pawn in a convoluted game of chess. This is why he must intensify the work begun by his predecessor, Justice Mohammed, to cleanse the judiciary of corruption and fiercely defend its integrity and independence. The constitution provides for a three-month acting appointment, which can be extended only once. Justice Onnoghen should ignore whatever secret plans anyone might have, and instead focus on the task ahead. Let him face the cause of justice, and let him leave Nigerians, to the extent that they can be trusted to be discerning, to face up to the government on the curious and insensitive politics of the appointment of the chief justice.
It is not just the history of the judiciary that is being written in these trying times. Given the presidency’s refusal to comply with court orders on those admitted to bail and the appalling genocide being perpetrated against the Shia community in Nigeria, for which there will of course be accountability sooner or later, the history of this government and its chief protagonists is also being written. That history will tell of pretentious and disreputable leaders who have neither instinct nor vision for nationally unifying ideals; of an impotent police force which engages in handwringing and genuflection before traditional rulers as paedophiles snatch underage girls from Kano and Katsina streets, forcibly convert them to a different religion and marry them off in sex-crazed obsession with children; of a state judicial system such as Kano’s that criminally connive at the murder of a 74-year-old woman, Bridget Agbahime, bludgeoned in the presence of her husband and other credible witnesses; and of a country being provoked into anarchy by jaded, extremely parochial and offensive ideas and policies. Hopefully, the Justice Onnoghen matter will not be added to the needless complications that have put the country’s nose out of joint.
