By Dapo Akinrefon
LEGAL luminaries have expressed mixed reactions over remarks by the Attorney-General of the Federation and Minister of Justice, Mr Michael Aondoakaa, SAN, who stated that the out-going Chief Justice of the Federation has the legal right to administer oath to the in-coming CJN.
For Professor Itse Sagay, who argued that for the sake of peace and tranquility, the out-going Chief Justice of the country should swear-in a new CJN, explained that â€œthe constitution simple talks of the oath of office without specifying who should administer the oath. There is nothing specific about who does it. But the Oath Act, specifically mentioned two people in that regard; that is the President or the incumbent Chief Justice of Nigeria.â€
â€œSo, technically, the Chief Justice of Nigeria can administer the oath, but the only problem that comes to mind is the issue of when the current Chief Justice of Nigeria administer the oath, whether there will not be two Chief Justices. Thatâ€™s a technical question, but one can say well one has been administered first for the sake of peace, maybe that is the way round that problem. Most of the experienced people who have been asked this question seem to think that the Chief Justice of Nigeria can administer the oath. People like Justice Kayode Eso and the former Chief Justice of Nigeria, Justice Alpha Belgore have expressed that view and these are very experienced people, I think that view should prevailâ€, the law professor explained.
CJN can administer oath, says Sagay
Aside, he said â€œI would say that in a situation where we donâ€™t have an acting president, the president is sick, it would not just go well for the country, for us not to have a Chief Justice and having two of the highest offices in the land vacant. So, for purely practical reasons of necessity, I will go with the view that the out-going CJN can swear in the new one so that we can have some stability in the country. For that reason, I will support it for a matter of convenience and necessity.â€
â€œThe Oath Actâ€, he Sagay argued, â€œhas mentioned the CJN, so there is a basis under the law, the constitution does not specify but the act specifies that. In our situation, we have to be pragmatic and of course, the ideal thing is for the president to do it. I also go with Belgore because I want stability in the nation because we are having a big problem in the presidency and we donâ€™t want another one in the judiciary as well, otherwise, two arms of government will be paralyzed and itâ€™s not good.â€
While differing with Sagayâ€™s position, President of the West African Bar Association, WABA, Mr Femi Falana argued that â€œthose who said the outgoing Chief Justice of Nigeria, Justice Idris Kutigi can administer the oaths of office on his successor are committing illegality. The law is clear about the administration of oath on the CJN. The illegality of the said plan becomes clear when you consider the fact that at the time the swearing-in ceremony is performed by the outgoing CJN, that means we will be having two CJN, which cannot be possible. Let us look at this from another angle. Justice Idris Legbo Kutijiâ€™s retirement takes effect at 12 midnight on 31st December, 2009.â€
The rights crusader also pointed out that â€œIf he administers the judicial oath on the new CJN, Justice Aloysius Katsina-Alu during office hours on that day, it means there shall be two CJNs contrary to the constitution. It is hoped that the outgoing CJN will not lend his weight to the serial breaches of the constitution. It will become illegal and there would be no remedy.â€
Falana warns against sidelining constitution
Aside this, he said â€œWe therefore warn those who are trying to sideline the constitution that the President will sign the supplementary budget from his sick bed in Jeddah to be cautious of their action. If they want to convince Nigerians that the president is ruling or will be ruling from Jeddah, that means they must show his video to convince Nigerians that indeed he is capable and fit to perform his duties as required by the constitution.â€
A legal practitioner, Mr Jiti Ogunye, on his part said â€œwhile it is true that Section 290 of the Constitution does not stipulate the authority before whom the judicial oath and oath of allegiance should be taken, unlike Section 140, which names the Chief Justice of Nigeria as the person to administer the oaths to the president of vice-president; and Section 185 which names the state Chief Justice as the person to administer the oaths to the governor or deputy governor.
And Sections 94 and 52 which names the Speaker of the House of Assembly and the president of the Senate and Speaker of the House of Representatives as the persons before whom the members of State Houses of Assembly and National Assembly must subscribe to their oath of allegiance and membership, there is no doubt that this silence is not being taken care of by established practice and convention.â€
He added that â€œthe intendment of the framer of the constitution is that in a presidential system of government, just as the head of the judiciary, the third arm of government, is the authority that swears in the head of the executive branch of government into office. The head of the judiciary also must be sworn into office by the president.â€
Besides, he argued that â€œby Order of Precedence Act, after the president, comes the vice president, President of the Senate, Speaker of the House of Representatives, before the Chief Justice of Nigeria in that order.â€
V-P can administer oath, says Ogunye
He, however, submitted that â€œthe Attorney-General of the Federation in this has skewed and absurd legal opinion cannot bypass the office of the vice president because by interpretation, the office of the president also includes the office of the Vice- President. The point we are making is that if the president is not available to administer the oaths, the Vice President is available.â€
â€œThe Attorney-General and the president cannot abandon the provisions of Section 145 of the constitution, which says the executive functions must be handed over vide a transmission of letter to the heads of the National Assembly, so that the Vice President can act for the president and by personal choice reach over to an outgoing Chief Justice of Nigeria to swear in an incoming Chief Justice of Nigeria. The Attorney-General of the Federation should act as a lawyer and not a desperate political corner cutter,â€ he stated.
Also kicking against the move by the out-going CJN to swear-in a new one, another legal luminary, Mr Mike Igini said â€œThe on-going controversies and its compounding needless complexity over the appropriateness or otherwise of the out-going CJN administering the oath of allegiance and judicial oath of office to the newly confirmed CJN by the Senate occasioned by the failure or better put, refusal of President Yarâ€™Adua to abide by the provision of section 145 of the constitution he swore to uphold on May 29th 2007, is most unfortunate and a set-back to our fledgling democracy and indeed regrettable and shame to us as a people and as a nation.â€
Controversy, a shame
Igini continued: â€œThis whole controversy would not have arisen in the first place if and ifÂ there are statesmen and women in the corridor of power that think and act in the interest of the people and the nation and not in the narrow interest of themselves to the detriment of the entire nation.
Why should the president and the Attorney General arrogate to themselves the liberty to pick and choose provisions of the constitution to obey as well as statutory provisions to invoke whenever the exigency of their political interests are in contest? why? The Attorney General had declared previously and unconstitutionally that Mr President can govern Nigeria from anywhere and now that the issue of the swearing in of the CJN has come up and to demonstrate the determination of his group that Yarâ€™Adua can rule Nigeria offshore, he sought refuge in the 1963 Oath Act under the parliamentary system of government in the First Republic that talks of the swearing in of Parliamentary Secretary and ministers by the president or the CJN. Yet we are now under Presidential System of government as in 1979 and since the year 1999 under the current rickety constitution.â€
Besides, he argued that â€œall these merry go-round and running from pillar to post is just to prevent the operation of the provision of section 145 of the constitution that would have made it possible for Vice President Goodluck Jonathan to be an Acting President. Even though Section 290 of the 1999 constitution is silent on the authority before whom the oath of allegiance and judicial oath shall be administered unlike the express provision for those of president/vice president under section 140, Governors/Deputies section 185 but for that of the CJN, it has always been the president that administers the oath of allegiance and judicial Oath to a new CJN.
This has been the time honoured convention and practice so far in this country. The problem the Attorney General is having with the Nigerian people is that he has betrayed the trust of his office and so he is suffering credibility crisis, otherwise given where we have found ourselves as a result of the deliberate refusal of Yarâ€™Adua to hand-over to his vice even when he went on vacation at the time, which has created this controversy, the nation can take refuge in the oath Act in force that allow the president or the CJN to perform such a duty.
But as I have said before, the position of the AG on this matter with respect to the applicable oath act is not altruistic, its just a statutory refuge that serves his interest and the group of power merchants that have hijacked Nigeria for their own benefits. unfortunately, for the Nigerian people as archaic as the 1963 oath act and very many others in our statute books that the A.G and his group has decided to rely in order for Yarâ€™Adua to rule Nigeria from abroad, they remain our laws until expressly repealed or amended to meet the demands and challenges of our ever-changing and dynamic society.â€
â€œSo, the issue is not whether the A.G is right and others wrong on this issue but the fact that the absence of president Yarâ€™Adua from office for a period of 96 days this year alone on health grounds outside Nigeria apart from days he was unable to discharge the duties of his office even when he is in the country on same health issue yet the AG and his group are insisting that he shouldÂ continue in office. its unfortunate for Nigeria and the future of its youthâ€, he stated.