Forty four years after a southerner from old Cross River State Hon. Justice Egbert Udo Udoma was sidelined for the post of Chief Justice, history appears set to repeat itself as President Muhammadu Buhari is alleged to be making plans to shelve Hon. Justice Walter Onnoghen who ironically is also from Cross River State. Whether this jinx will be broken amidst speculations that the President might scuttle the age-long tradition of the Supreme Court where the most senior judge becomes Chief Justice of Nigeria (CJN) remains a mystery. LILLIAN OKENWA reports.
On the 11th of November, 2016, Nigeria will have a new Chief Justice. Who becomes Nigeria’s next head of the judiciary is another story. But it has not always been so.
Unlike the United States of America (USA) where appointments to the Supreme Court, particularly the office of Chief Justice is fraught with politicking, Nigeria’s judiciary like every of its activity has been quietly making its transitions without rancour or fanfare. But for one interjection during the military, no government in Nigeria, not even successive military governments with all their ouster clauses suspending the operation of the Constitution interfered with appointments to the bench let alone appointment of the Chief Justice of Nigeria (CJN).
As it is today, Nigerians wait with bated breaths to see if President Muhammadu Buhari will allow status quo to be maintained or by one singular act alter the cause of judicial history in Nigeria.
In 1972 when Hon. Justice Adetokunbo Ademola, left office as CJN, the most senior justice of the Supreme Court was Hon. Justice Egbert Udo Udoma. He was expected to take Ademola’s place. That had been the tradition. The most senior justice succeeds the retired one.
Yet, despite his formidable, curriculum vitae and in spite of the succession rule, General Yakubu Gowon, then Head of State chose instead to appoint Teslim Olawale Elias as CJN. Elias, no doubt a scholar and profound jurist was the Attorney-General of the Federation. That was the first time the Bar produced a CJN. Some of the justices who served at the Court with Udo Udoma disclosed that he was very bitter. But that is very understandable.
Born in old Cross River State, Hon. Justice Egbert Udo Udoma, whose Ibibio nation currently falls under Akwa Ibom State, rose to become an iconic figure, not just in Nigeria and Africa but in the entire Commonwealth through the distinction of his achievements in every field in which he was engaged: education, politics, law, community service, Christianity, statesmanship and scholarship. The first Ibibio man to obtain a doctorate degree in law, he died on February 2nd, 1998, a few months away from his 81st birthday.
In 1961, he was appointed a Judge of the High Court of Lagos Territory. In 1963, he was seconded to Uganda as the Chief Justice of Uganda, the first African to serve in that position. He served as Chief Justice of Uganda for six years and as Acting Governor-General in 1963. In that six-year period in office, Sir Udoma helped to reform the Uganda justice administration system. As President of the Constitutional Court, he also helped to deepen constitutionalism and jurisprudence in that African country. In 1969, he was appointed a Justice of the Supreme Court of Nigeria, a position from which he retired in 1982. Yet, these qualifications did not impress the government of the day enough to appoint him as CJN.
Forty-four years after Gen. Gowon’s incursion, there are fears that another Justice of the Supreme Court, curiously from Cross River State might suffer the same fate. Interestingly, the current Head of government is a retired military officer and former Head of State.
Born December 22, 1950 at Okurike town, Biase Local Government Area of Cross Rivers State, Hon. Justice Walter Samuel Nkanu Onnoghen mounted the Supreme Court bench in 2005. He would be retiring in 2020 by which time he would have attained the constitutional retirement age of 70 years.
Remarkably, Hon. Justice Ayo Irikefe an Itshekiri man from Delta State was the last southerner to hold the office of CJN. He served between 1985 and 1987. Should Onnoghen, the next most senior member of the Supreme Court bench get the job, he would be the first CJN from the South South/South East in the last thirty years. Current CJN, Hon. Justice Mahmud Mohammed, the 15th Chief Justice of Nigeria who would retire on November 10, 2016 is from Taraba State; while the number three Justice in order of seniority, Hon. Justice Tanko Mohammed comes from Bauchi State.
Though it is whispered that President Buhari might not be favorably disposed to a CJN from the South-South, it is important to note that this is one of the justices that stuck his neck out for Buhari even when others said nay.
On Friday, December 12, 2008, the Supreme Court upheld the election of President Umaru Yar’Adua in a judgment marked by sharp division among its seven justices. The decision was the outcome of the petitions filed by the All Nigeria Peoples Party (ANPP) Presidential candidate in the 2007 poll, Gen. Muhammadu Buhari. He was challenging the validity of the election of Alhaji Umar Musa Yar’Adua who contested in the April 21 election under the platform of the Peoples’ Democratic Party (PDP).
Four justices of the apex court held that the complaints of the petitioners were not strong enough to annul the election. Three ruled otherwise; insisting that non-serialisation of ballot papers, among other infractions allegedly committed by the Independent National Electoral Commission (INEC), ran foul of the Constitution and the Electoral Act 2006 and is enough ground to call for a new election.
The three dissenting justices were George Adesola Oguntade, Aloma Mariam Mukhtar and Walter Nkanu Onnoghen. They agreed with the petitioners (Buhari and ANPP) that the elections were fraught with irregularities, cancelled the elections and ordered that fresh elections be conducted within 90 days.
Chief Justice of Nigeria (CJN), Idris Legbo Kutigi; Aloysius Iyorger Kastina-Alu, Niki Tobi, and Dahiru Musdapher dismissed Buhari’s appeal and upheld the election of Yar’Adua and Jonathan. The late Hon. Justice Niki Tobi read the lead judgment.
“In my view, the most important complaint in an election petition is the disenfranchisement of eligible voters who reported within the statutory time to cast their votes but could not for reasons of violation of the Electoral Act,” Tobi read from the judgment.
“If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not substantially affected, the petition must fail. In other words, Election Tribunal must, as a matter of law dismiss the petition, and that accords with section 146 (1) of the Electoral Act.”
Former Chairman, National Human Rights Commission, Prof. Chidi Anselm Odinkalu did not agree with them. “Only members of the majority can explain how they could have accomplished their decision making without any reference to the provisions of Section 14(2) (a) of the Constitution of the Federal Republic of Nigeria which proclaims that “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority”. If they had bothered to look also, the majority would have struck upon Articles 13 of the African Charter on Human and Peoples’ Rights, which is domestic law in Nigeria and 21 of the Universal Declaration of Human Rights, which confer on citizens the right to participate in constituting the government of his or her country and anchor the legality of government on electoral legitimacy.”
Conversely, Oguntade who got concurrence from Mukhtar and Onnoghen held differently. Referring to the majority judgment, he maintained that: “A reasoning that saddles a petitioner with the burden of showing non-compliance with the provisions of the Electoral Act and, at the same time, showing the effect of the alleged non-compliance on the result of the election would appear to be unduly favorable and lenient to the respondent who is the perpetrator of the disobedience of the law of the land. This reasoning, if sustained in Nigeria, would encourage politicians and INEC to disobey the laws relating to elections without any qualms or remorse since at the end of the day, they are not penalized for such disobedience of the laws.” That decision is today cited as Buhari v. INEC (2008) 5 NWLR (pt. 1080) 227.
Since Justice Onnoghen elected to follow his conscience instead of toeing the popular line, it would be disheartening if indeed that the man on whose side he stood is considering ditching him for a position he qualifies to hold.
After several interviews granted various media organisations by Dr. Junaid Mohammed and the general outcry against the slanted appointments of President Mohammadu Buhari, the Punch Newspapers in its August 1, 2016 Editorial cried out.
“In his inaugural speech just over a year ago, Buhari promised Nigerians that “having just a few minutes ago sworn on the Holy Book, I intend to keep my oath and serve as President to all Nigerians. I belong to everybody and I belong to nobody.” But too often, the pledge has been honoured in the breach. Buhari’s sectionalism is not only unprecedented, it could not have come at a worse time. The reality today is that Nigerians are deeply divided. Seventeen years of dashed hopes of progress under a democratic dispensation have reopened the deep fissures in the polity and polarised the populace into mutually suspicious camps. Sectarianism and ethnicity have been rearing their poisonous heads. The presidential election of 2015 was particularly divisive, with some major actors openly deploying base religious and regional sentiments. Add to this the terrible state of the economy that Buhari inherited, headlined by a collapse in global crude oil prices, our main export earner, and the rapacious emptying of the national treasury by previous governments, and you have a seething, discontented people.
“It is a sad reality of the Nigerian experience that when crisis − political or economic − hits, segments of the populace retreat into ethnic and sectarian cocoons. It is in this combustible mix that Buhari stubbornly presses ahead with appointments that weigh heavily in favour of his northern regional base.
“He struck again last month when he removed Ibe Kachikwu as head of the Nigerian National Petroleum Corporation to put a Northerner; named another, Hadiza Bala-Usman, as managing director of the Nigerian Ports Authority along with three executive directors, two of whom are also Northerners. Before then, he had ring-fenced himself with appointees from his northern constituency at the Presidency, thereby deepening the long-held fears of many Southerners that he has not overcome his well-known insularity.
“But the 1999 Constitution explicitly stipulates in Chapter 14 subsection 3 that the ‘composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall…reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups…’ Buhari is breaching this with impunity in his appointments. Apart from this, Nigeria’s plural setting demands that no group or ethnic nationality is seen as too domineering in critical areas of governance.
Among his first appointments, even while he dithered on assembling a cabinet: he recalled a retired officer to man the Department of State Services; a former army officer to head the Nigeria Customs Service; a personal acquaintance as Chief of Staff, and loaded the other security and law enforcement agencies heavily in favour of Northerners. While the DSS head is from his hometown, Daura, the others are also almost all Northerners and overwhelmingly Muslims. In spite of public opinion, he replaced the immediate past Inspector-General of Police, a Southerner, with a Northerner, an assistant inspector-general whose ascension induced the retirement in one fell swoop of 21 DIGs and AIGs who were senior to him. This is beyond absurdity.”
Aside from the fact that Buhari might not be disposed to having a CJN from the South-South, the deep concern is that meddling with the leadership of the judiciary would tamper with judicial independence. Human rights lawyer, Mr. Festus Keyamo who has joined other voices condemning the call for appointment of CJN and Justices of the Supreme Court straight from the bar noted that such an appointment would “be preceded by intense lobbying, recruitment of politicians into the scheme and some disgusting genuflection before the powers-that-be by the candidates jostling for the position.”
He argued that once appointed, such a CJN would have an automatic allegiance to his benefactor. In an open letter to President Muhammadu Buhari, copied the Senate President and Chief Justice of Nigeria, Keyamo stated that the current “seamless, apolitical and non-controversial mode of succession at the Supreme Court over the years, especially since the civilian era, has produced a Supreme Court that has engendered respectability and dignity. It has also emerged as a rancour-free institution.”
In an interview with former Chief Justice Mohammadu Lawal Uwais, he advanced why senior lawyers should not be appointed straight to the apex court.
“Part of the problem is not just the ability of the judge you want. There is the issue of integrity. If you have been a judge at the High Court or Court of Appeal before coming to the Supreme Court, you would have done cases where whether you are a corrupt person would have been discovered. From your judgments also, the Court of Appeal would have known how good you are if you are the High Court. But if you are a legal practitioner, you haven’t written any judgment. So, there is no way you can be assessed in that respect.
“Again you are not under supervision of anybody when it comes to integrity and those are the two points why we felt, anybody who is at the Bar who wants to go to the Supreme Court bench should let start from the lower Bench.
“…What I am saying is about monitoring a lawyer at close quarters. A lawyer is at large. He has his clients and he works for them. But if he is a judge, he is within the system. There are ways and means of knowing how he is getting on. That is the difference.”
All said, it is left for President Buhari this time to feel the pulse of Nigerians or do things his own way.
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