CJN SWEARING IN: An Unfair Act

L-R: AILING PRESIDENT YAR'ADUA AND THE NOW INFAMOUS JUSTICE IDRIS LEGBO KUTIGI

Against all entreaties and pleading, Justice Idris Legbo Kutigi, the Chief Justice of Nigeria (as at midnight today), just on the eve of his departure from office, defied an overwhelming public opinion to swear in his successor, Justice Aloysius Katsina-Alu. He has thus brought a glorious career to an end on a rather controversial note and, regrettably, his successor’s tenure is beginning on a contentious one. This is curious, considering that the judiciary has been placed above the common fallibility of other institutions, with the courts coming to the rescue of the nation at critical times. If gold rusts…

The issue of succession at the Supreme Court was brought to the front burner after it became clear that ailing President Umaru Yar’Adua receiving treatment in a Saudi Arabian hospital would not be around to perform the swearing in. President Yar’Adua did not and has not legally empowered his deputy, Dr Goodluck Jonathan, to assume presidential power in acting capacity. This throws up a vacuum and the scenario of constitutional crisis.

Apparently in the bid to avert this crisis, the Attorney General came up with the most disingenuous interpretation of the Oaths Act Cap 01 LFN 2004, which requires the President or the Chief Justice of Nigeria to administer the oath of office to Chief Justice of Nigeria, Attorney General of the Federation, Ministers, Permanent Secretaries, Justices of the Supreme Court, President and Justices of the Court of Appeal, Chief Judge and Judges of the Federal High Court, Army Chief of Staff, Naval Chief of Staff and Air Force Chief of Staff and others.

He ruled that it was right for the CJN to swear in his successor. This is against tradition and convention. The president had always administered the oath of office on the CJN. Though it is not a case in court, the judiciary, for most part, is built on the rule of precedent and the doctrine of stare decisis et non quieta movere. Changing precedent on the altar of convenience therefore amounts to removing the ancient landmarks. It is capable of bringing anarchy to governance.

The constitution is silent on who administers oath on the CJN because it does not envisage a situation of vacuum in government necessitated by the prolonged absence of the president. The constitution stipulates that in a situation the president is unavailable, his deputy should be empowered to act for him. If this had been done, there would have been no vacuum that threatens to throw the nation into a constitutional crisis.

The swearing-in of the CJN was originally slated for today since Justice Kutigi’s term expired yesterday when he attained the age of 70 and his successor takes over the next day. But since Kutigi would no longer have been CJN on Thursday and would have been incompetent to administer oath on anybody, the ceremony was shifted back to Wednesday. In trying to solve one problem, another has been unavoidably created. Two CJNs existed until midnight of Wednesday when the term of Justice Kutigi expired. This interlocking of terms between the outgoing and incoming CJN is anomalous and has created a legal complication which albeit is contrived and avoidable.

It is definitely a subject of debate, which would snowball into litigation on whether the CJN occupies office properly, or his usurpation of a fraction of his predecessor’s term renders his swearing-in nugatory. We do not think the CJN occupies the office properly.

This is going to be more complicated if any lawsuit challenging the CJN’s occupation of office gets to the Supreme Court and he had to assign it. He would have handled a case involving him and introduced possible conflict of interest, thereby violating the fundamental principle of jurisprudence: nemo judex in causa sua, which precludes him from being a judge in his own case.

From the look of things, and we pray it does not come to that, it seems the judiciary is the first casualty of the contrived gridlock and immobility spurned by President Yar’Adua’s prolonged absence. This is more regrettable because the leadership of the judiciary willingly dragged the institution into an avoidable crisis.

But the issue, strictly speaking, is not about swearing-in of a CJN, but ostrich playing by a power cabal that has decided to hold the nation by the jugular. It is the deliberate foisting of a lie on a nation in the vain hope that assiduous building on a foundation of lie would produce a house of truth. There was no handing over to a successor, even in acting capacity. The constitution has designated the Vice President the president in waiting, yet he cannot assume this power without a legal instrument empowering him to do so. Deliberate withholding this power from him amounts to dangerously taking the nation to the brink. This is not fair to Jonathan. This is not fair to Nigeria or the spirit of the constitution. It is power flexing, barbaric style.

But the doomsday can still be averted if power is properly transmitted to him. Until this is done, all the institutions of state, one after the other are going to be on the firing line and nobody can predict what will stand or what will endure.

The capitulation of the judiciary is definitely a bad omen.

* THEWILL aligns with the views expressed in this article culled from The Nation Newspaper.