AONDOAKAA, NIGERIA’S CJN AND THE PRESIDENCY

PHOTO: UMARU YAR'ADUA.

I am not a fan of Michael Aondoakaa, Nigeria’s Attorney General and Minister for Justice. But I am fascinated by the arguments for and against his directing the outgoing Chief Justice of Nigeria (CJN) to swear in Katsina Alu as the new Chief Justice of Nigeria. Though Aondoakaa’s latest action arose from a crisis engendered by the absence of the President, it has opened a new vista of constitutional arguments and challenges. Most of us have stuck with many practices, which are more of conventions than strict constitutional matters.

The practice of the President swearing in of the Chief Justice of Nigeria by is one of the things we have always taken for granted as having the force of law and that no other person could perform that function. But research and a careful perusal of the Nigerian Constitution has shown that we may have been assuming too much, especially (with due respect) on the part of our legal practitioners who are supposed to know better.

I was one of those who condemned Aondoakaa ignorantly but I found out, like others, that he was damn right and his action was based on law. He cited the Oaths Act, Second schedule,’ under TAC 01 Laws of the Federation of Nigeria 2004, which states that either the President or the sitting CJN can swear in a new CJN. What is important is that a new CJN needs to take the oath before he resumes office. Therefore, the outgoing CJN can swear in his successor by December 30 and leave by the midnight of December 31. Asked why the President has always sworn in CJN, he said it is a carryover of military mentality and that the Judiciary has not been asserting itself like the legislature.

He further silenced his critics, including me, that in the US, which practices the presidential system, and after which Nigeria’s Constitution was fashioned, the Chief Justice has always sworn in his successor.

A checklist of the swearing in ceremonies of past Chief Justices of the Federation in the USA confirmed Aondoakaa’s claim. In fact, a Nigerian Professor, who is one of the ardent critics of the present administration and who had resided in the USA for 31 years, admitted that Aondoakaa’s assertion was right and that he never knew this fact until Aondoakaa pointed it out.

More interesting are some Wikipedia references. With respect to retiring Chief Justice Warren Burger (who was in office from June 23, 1969 – September 26, 1986), he was the one who administered the Oath of Office to his successor, William Rehnquist (in office from September 26, 1986 – September 3, 2005). 

That would be like the present and retiring CJ Kutigi who administered the oath to his successor, Aloysius Katsina- Alu as Aondoaaka suggested. If the Professor who is not a lawyer like me could be pardoned, what about our lawyers in Nigeria who had already taken Aondoakaa to the cleaners despite the fact that they have not backed their argument with any constitutional provision?

What looks like a simple research that Aondoakaa had carried out in this crisis situation may in fact be a ground breaking legal discovery that could be a wake-up call for the judiciary to assert itself by taking over its constitutional function of swearing in the CJN as it is done in America. Since I have been following legal arguments in election petition matters at the tribunal, I have taken much interest in the legality or constitutionality of any argument. 

Interestingly, many legal minds have supported the position of Aondoakaa while another set of legal luminaries are against his position. Those against the swearing in of the CJN by the outgoing CJ argue that it will create two CJs in the country since the term of the outgoing CJ is yet to expire.

Those who support Andoakaa’s position argued that the law had made provisions for those to administer the oath to the CJN and the issue of two CJN at a time did not arise. If the two-CJN-at-a- time argument is followed, it also means that if it is the President that swears in the CJN, we shall still have two CJNs at a time because the term of the outgoing one would also not have completely expired before the President swears in his successor.

Another argument is that it is possible that we may not have a CJN if we wait for the term of the outgoing to completely expire before his successor is sworn in by the President. This simply means that there is nothing like two CJNs at a time since the term of one automatically expires as soon as he swears in the other.

But the fact remains that those against the position of Aondoakaa have not cited a particular section of the Nigerian Constitution to back their claim that it is only the President and the Vice President as the case may be that could swear in the CJN. The outgoing CJN, Kutigi, threw more light on the controversy during the swearing-in ceremony when he cited the Oaths Act where it was spelt out that either the President or the Chief Justice of the Federation could swear in a new Chief Justice of Nigeria.

Interestingly, those who opposed the position of Aondoakaa shifted the argument to the fact that the appointment of the new Chief Justice was incomplete because the President did not give his assent by writing before he travelled out of the country. But those on Aondoakaa’s side had argued that there was no need for the President to give any assent again since he presented the candidate in the first place.  

I understand the feelings of many Nigerians concerning the Yar’Adua government, especially its 7-point agenda, which is jocularly called ‘sleeping point agenda’, for its lackluster performance. This might have blurred any brilliance or noteworthy action or idea Aondoakaa may come up with.

But we should not always fall into the pit of dismissing every action of a government functionary because of the general systemic failure of that government even if that action will help our constitution and democracy to grow. Of course, many agreed that Aondoakaa talks law, especially on the issue of the swearing in of the CJN, with a tinge of politics.

Unconfirmed rumour also has it that it was Aondoakaa who called the Judges of the Appeal Court who were about upturning the judgment of the Supreme Court in the Anambra gubernatorial case of Andy Uba vs INEC to order, warning them of dire consequences should they go ahead with the heresy, and this was responsible for postponing the judgment twice.

The new constitutional discovery of Aondoakaa about the outgoing CJN swearing in the in-coming will definitely pale into insignificance against the backdrop of many allegations that he has been shielding corrupt public officers but some people have also argued that if he shields corrupt officials, why didn’t he extend the cover to Bode George who had been jailed? 

The other issue which is making people not to see anything good in what Aondoakaa may have done is the controversy surrounding the health of President Yar’Adua and his refusal to hand over to his deputy, Vice President Jonathan, to act while he is away.

While I have my reservations about some intrigues and power play, which may endanger our democracy, the truth must be told that it is the way many Nigerians have approached the issue that is heating up the polity. Most of us are always quick to invite the military at the slightest political crisis that can be resolved if approached with more civility. No matter how we may agitate and argue for Jonathan to take over as Acting President, one of three things must happen before this would be possible. 

First, the President must write the National Assembly and inform them he will be away and will hand over to Jonathan but this has not been done. Only Yar’Adua knows why he has not done that. Two, The Federal Executive Council must decide in accordance with section 144 and declare the President unfit to continue in office. Again, this has not been done and until it is done, Jonathan cannot become Acting President.

The third thing that must happen is that the National Assembly will assemble a team of selected medical doctors which will include the President’s personal physician who will investigate the state of his health and either declare him fit or unfit. 

It is sad that none of the above has happened and until it happens anything we say or do as regards our desire for Jonathan to become Acting President amounts to mere academic exercise. Since there are laid down processes, we should not run a government that is not based on the constitution because it may be an excuse for military intervention. Jonathan has been presiding during Federal Executive meetings though many have cited the case of insubordination of Rilwan Lukman who travelled despite the order of Jonathan not to do so as evidence that Jonathan is not in charge while others have argued that that singular action of an errant Minister is not enough to conclude that Jonathan is not in charge.

That Jonathan presides over FEC meetings alone shows that there is at least a point person and it is better than a military coup. The propriety of Yar’Adua signing the appropriation bill in far away Saudi Arabia has also generated controversy. But pundits have also argued that the constitution does not say where the President may sign the bill but only that he should sign. But the problem with this line of argument is that it is not everything that the constitution is silent about that is right. 

Our present predicament boils down to the campaign to ensure electoral reform. If we can all be vociferous as we are now in ensuring electoral reform, we will have an enduring democracy by electing true representatives of the people who would listen and act according to the wishes of the electorate. If the representatives of the people are truly the ones voted for right from the councilor level in the local government to the National Assembly, it will be easy to follow the constitution whenever an issue such as the present one arises.

The National Assembly will not be populated with only PDP charlatans most of whom did not win elections. The National Assembly would have been so evenly populated that it would be difficult for only one party like the PDP to ride roughshod over other members. That is why they cannot invoke section 155 to declare the President incapacitated and pave way for the Vice President to take over.

I hope Aondoakaa will use his good office to facilitate the constitutional requirement especially as it concerns the Federal Executive Council. That is the only thing that will douse the present tension and that is when his ideas will be better appreciated by Nigerians. It seems there is neither judicial solution in sight due to anticipated delays and deliberate adjournments, nor legislative solution because both houses of the National Assembly are enmeshed in a conspiracy of silence.

The quickest temporary solution is for the Federal Executive Council to invoke section 145 to pave way for Vice President Jonathan to assume power as the Acting President. But above all, the best thing for our democracy now is for President Yar’Adua to get well and resume duty to end speculations about his whereabouts 52 days running. We want to see our President! 

Hakeem Jamiu is at hakeematus@yahoo.com, 0808 311 2749 SMS only.