Constitutional crisis looms as Acting CJN’s tenure ends in three weeks

The nation may be plunged into a constitutional crisis in about
three weeks as the tenure of the acting Chief Justice of Nigeria,
Justice Muhammad Tanko, comes to an end, According to SUNDAY PUNCH
reports.

Muhammad was inaugurated by President Muhammadu Buhari on
January 25, 2019 following an order by the Code of Conduct Tribunal
that the substantive CJN, Justice Walter Onnoghen, be suspended and
the next in line of seniority, be sworn in.

However, the constitution states that the President cannot
re-appoint an acting CJN unless on the recommendation of the
National Judicial Council.

Section 231(4) and (5) states, “If the office of 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 has resumed those functions,
the President shall appoint the most senior Justice of the Supreme
Court to perform those functions.

“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-appointment a person whose appointment has lapsed.”

Onnoghen and Muhammad are facing a probe by the NJC, the body
responsible for the discipline and appointment of judges.

While Onnoghen was given a query by the NJC to respond to
allegations on why he failed to declare some of his assets as
required by law, the acting CJN was asked to respond to a query on
why he allowed himself to be sworn in by Buhari without the
recommendation of the NJC as stipulated by the constitution.

Onnoghen has challenged his suspension before the Court of
Appeal but the appellate court has withheld judgment for unknown
reasons while the case before the CCT has been given an accelerated
hearing.

Buhari will only be able to extend Justice Muhammad’s tenure if
the NJC sends his name to the President for confirmation.

The President will subsequently be expected to send his name to
the Senate for confirmation.

However, the current Senate, led by Senate President Bukola
Saraki, has been at loggerheads with the executive branch.

The upper chamber of the National Assembly harshly criticised
Buhari for suspending Onnoghen and had even threatened to drag the
executive arm of government to the Supreme Court.

Reliable sources in the Presidency feared that if Buhari
nominates Muhammad as the CJN to the Senate, the current set of
lawmakers would likely reject his nomination.

The current Senate will expire in June, and Saraki, who lost
re-election, will not be part of the 9th Senate.

Speaking with our correspondent on Saturday, however, Chief
Robert Clarke (SAN) said it was too early to speculate as the NJC
still had three weeks.

Clarke said the constitution is clear that the appointment of
judges should be on the basis of seniority and since Onnoghen
remained under suspension, the NJC would have to extend the tenure
of Justice Muhammad, who is also being probed by the council.

He said, “The Constitution will not allow a vacuum in any
instance. It says the most senior judge will take over as acting
CJN. After three months, the NJC can recommend another three
months. He has no definitive tenure. It only said if the position
is not vacant, the most senior must act.

“The NJC can recommend Tanko (Muhammad) again. I know the NJC
will do the right thing. They know more than you and I, they know
what to do. The constitution says the most senior. So, the NJC
cannot recommend just anyone. Let’s not speculate.”

Also speaking with our correspondent, human rights lawyer, Jiti
Ogunye, believed there would be no constitutional crisis because
Nigeria always found its way out of such issues.

Ogunye added, “The point is when that time comes, a way would be
found. The NJC that is still grappling with the issue of the
treatment meted to Onnoghen, which is still considering petitions
against him and that of the acting CJN for the fact that he
presented himself to be appointed by the President, is that the
same NJC that will have time that will be considering what will
happen to him in three weeks?”