By Ise-Oluwa Ige and Abdulwahab Abdulah
Barring any last minute change, a group of lawyers from different regions of the country is scheduled to invoke, in another 48 hours, the original jurisdiction of the Federal High Court, Abuja to declare the office of Chief Justice of Nigeria (CJN) vacant.
The aggrieved lawyers who are due to commence the legal process for the purpose, Monday, are contending that the appointment process of the newly sworn_in Chief Justice of Nigeria, Justice Iyorgher Katsina_Alu, was inchoate and therefore null and void, for now.
According to them, after the Senate confirmed him for the exalted seat on the recommendation of the National Judicial Council (NJC), the statute required Mr President to issue a letter appointing him, which they claimed he could not do because of his beingÂ hospitalised abroad.
They said the failure by President Umaru Musa Yarâ€™Adua to issue the letter as required by statute had invalidated the appointment.
They attributed the problem with the appointment process to the absence of Mr President from his duty post on one hand and his refusal to invoke section 145 of the 1999 constitution empowering his Vice, Goodluck Jonathan, to take over and perfect Katsina_Aluâ€™s appointment.
They said that though Justice Katsina_Alu is eminently qualified for the position, due process of the law must be followed.
They are also pushing for the invalidation of the swearing in of the new CJN by the incumbent, Justice Kutigi because the Oaths Act referred to by Kutigi, which he claimed empowered him to administer the oaths of office on his successor, did not envisage an incumbent CJN swearing in the incoming.
Already, there are three separate suits before the same Abuja division of the Federal high court seeking its intervention to install Dr Goodluck Jonathan, either as acting or substantive President of the Federal Republic of Nigeria, owing to the absence in office of the incumbent.
All plaintiffs in the case, majority of who are lawyers, are contending that urgent intervention of the judiciary was necessary because the nation was already trudging the path of anarchy given the events of the last 40 days in the country.
The Chief Judge of the Federal high court, Justice Dan Abutu, is personally handling all the three cases already filed.
HOW THE CRISIS STARTED
In the early hours of November 23, 2009, President Umaru Musa Yarâ€™Adua was flown to Saudi Arabia for treatment over a speculated degenerative ailment known as Churg Strauss Syndrome (CSS).
He had received treatment at King Faisal Specialist Hospital in the Saudi Arabia for a few days before his personal physician, Dr Salisu Banye, disclosed that he (Yarâ€™Adua) was being treated for acute Pericarditis (inflammation of the heartâ€™s lining).
But at the time he leftÂ Aso Rock for urgent medical attention in Saudi Arabia, he arguably was not in the right condition to invoke his powers under section 145 of the 1999 constitution to hand_over powers to his Vice, Goodluck Jonathan.
Although few critics of Yarâ€™Aduaâ€™s administration were quick to suggest that he should resign his office for the good of the country and to be able to look after himself, his health having earlier broken down a couple of times since he assumed office, many however faulted the suggestion on the ground that anybody could fall sick and that it had not gotten to that.
In fact, his sympathisers said rather than ask him to resign, Nigeria should go to God in prayer for his quick recovery.
ANDOAKAA COMPLICATES ISSUES
He was busy arguing, all over the country, that President Yarâ€™Adua, under the Nigerian presidential system, could govern the country from anywhere in the world.
He cited sections 5(1) and 148 (1) of the 1999 constitution to back up his position.
He explained that the powers of Mr President were embedded in the person of the occupant of the office and that Yarâ€™Adua had, not for once, failed to exercise his presidential powers through his vice president and ministers who constituted the Executive Council of the Federation.
LAWYERS DISAGREE WITH ANDOAKAA
But many of his colleagues had disagreed with him, including a one_time President of the Nigerian Bar Association, Chief O. C. J. Okocha (SAN) to the effect that there was no provision in the 1999 Constitution of the Federal Republic of Nigeria permitting the President to govern off_shore as it is in the instant case.
He challenged him to a public debate if he was so sure of his position on the issue.
An Ibadan_based member of the inner bar, Chief Adeniyi Akintola (SAN), who also disagreed with the position, said that he would not believe that Andoakaa (SAN) said what was credited to him.
He said that if at all he did, he posited that Andoakaa must be suffering from a general disease afflicting majority of public officers in the country: talking before thinking syndrome.
Both Okocha (SAN) and Akintola (SAN) agreed that it is not in doubt that President Yarâ€™Adua has the powers to assign his presidential duties to his vice and ministers. They said that there were some duties he must perform personally, like the swearing in of the new CJN and the signing of the 2009 Appropriation Bill.
At the time the debate was on, the Appropriation Bill already passed by the National Assembly was lying on his table with no one to attend to it while the out_gone CJN, Justice Idris Legbo Kutigi, was also about hitting the mandatory retirement age of 70 years.
Although, AGN, Andoakaa (SAN) claimed that the Bill was taken to Saudi Arabia for President Yarâ€™Aduaâ€™s assent, most people doubted the claim.
Not a few people had challenged Andoakaa (SAN) and other government officials to prove to the entire Nigerians that the paper was indeed signed by the president by producing either the pictorial or video evidence showing the president doing the signing.
This is aside another point raised to the effect that if indeed Yarâ€™Adua signed the document, Nigerians would want to know whether he vetted it before signing away their monies.
On the other hand, the out_gone CJN, Justice Kutigi, though, had also administered the oath of office on the new CJN, laying to rest the brewing constitutional crisis of vacuum in the judiciary, the action of the out_gone CJN has however not succeeded in dousing tension in the polity.
If at all it had done anything, it had fuelled more constitutional crises in the country.
Already, aggrieved lawyers are putting their houses in order to void the appointment of the new CJN and declare the position vacant.
Foreign media are also presently busy feasting on bizarre happenings in the country.
SANS, LAWYERS REACT
An Abuja_based constitutional lawyer, Mr Kayode Ajulo, has expressed worries at the present situation of things in the country.
He said that the absence of President Yarâ€™Adua in office for almost 40 days now owing to ill_health and the refusal to allow his Vice, Goodluck Jonathan to either act or be sworn in as substantive President as enshrined in sections 144 and 145 of the 1999 constitution is sad.
He said all over the world, the practice is that when the sitting president is not available for any serious reason like the instant one, he hands over to his vice.
â€œBy the way, is the Yarâ€™Adua Presidency not a joint ticket,â€ he queried?
He said that the happenings in the country particularly the desecration of the 1999 constitution in the last 30 or 40 days are nothing to write home about.
â€œTake for instance, the 1999 Constitution of the Federal Republic of Nigeria stipulates that the budget shall be laid by Mr President before the two Chambers of the National Assembly.
â€œFrom time immemorial and even during the dark days of the military, the nationâ€™s budget is read by Mr President or Head of State.
â€œBut what is the situation in Nigeria today under a democracy? The 2010 budget was laid before the National Assembly by President Umaru Musa Yarâ€™Aduaâ€™s aide, contrary to the provisions of the 1999 constitution.
â€œAnd the slogan of this government is due process, rule of law.
â€˜If they are to follow the rule of law, the constitution envisages that Mr President could fall sick or even die in office. That is the essence of sections 144Â and 145 of the 1999 constitution.
â€œThat is: it is for Mr President to write to the National Assembly to inform them of his ill_health so that his vice would be enrobed to continue with the constitutional performance of the presidential functions.
â€œAgain, they said they took the Appropriation Bill to the Saudi Arabia for Mr President to sign. We didnâ€™t see him sign the document, let alone vet it.
â€œThere is a report in the national daily now which also circulates online that President Yar\Adua never signed any such document and that his whereabouts is even unknown.
â€œThe implication is that the executive is in shatters. There is no head of the executive and anything now goes.
â€œAndoakaa, the Attorney_General of the Federation, by his conduct, has suspended the 1999 constitution and we are being ruled today by the rule of Andoakaa, instead of rule of law,â€ he said.
â€œIn my own view, all these instances are recipe for anarchy,â€ he said, adding that ordinarily, the swearing in assignment ought to be constitutionally performed by Goodluck Jonathan as acting president if President Yarâ€™Adua had done what he should have done.
Radical human rights activist, Mr Bamidele Aturu himself had faulted the argument by the out_gone CJN, Kutigi to the effect that section 2 of the Oaths Act, Cap 01, Laws of the Federation of Nigeria 2004 and the Second Schedule to the Act empowered him to administer oath on his successor.
Hear him: â€œMy view is that this is a dangerous and illegal proposal that is fraught with dangers. For a person to occupy the office of the CJN, his term of office must not have expired and if that is the case, then the moment he swears in another before the expiration of his term, there would be in existence at the same time two CJNs! That clearly could not have been the intention of the drafters of the Oaths Act.
The original sin therefore appears to be the non compliance with section 145 of the Constitution. â€œMy simple advice to both Justices Katsina â€“Alu and Kutigi, both of whom I have a lot of respect for, is not to lend their weight or submit themselves to an illegal charade that would start Justice Katsina_Aluâ€™s tenure on a wrong footing and end Justice Kutigiâ€™s on a sad note.
â€œIt is better for this illegal swearing in not to take place now particularly as budgets are being taken to Saudi Arabia. It would be regrettable if JusticeÂ Katsina-Aluâ€™s judicial functions are challenged in court on the basis of the illegal swearing in.
Such a scenario, given the multiple and significant functions of the CJN, is better imagined. The Ibadan-based member of the inner bar, Chief Adeniyi Akintola (SAN) said, â€œit is clear from all indications that we are marching towards anarchy.â€
â€œMy brother, do you know how the foreign media reported the swearing in ceremony of the CJN? They said in their headline: Nigeria â€™s CJN sworn into office, illegally. What an embarrassment? That was early Thursday morning.Justice Kutigi is one jurist I respect so much but I never knew that he could allow politicians to drag him into this kind of thing.
With the goings on, I just pray that the right thing will be done so that we wonâ€™t go back into the dark days again,â€ he added.
Abuja-based member of the inner bar, Chief Adegboyega Awomolo (SAN) said the Federal Government has goofed several times in their decisions since President Yarâ€™Adua was flown out for medical attention.
He said they have been moving from one illegality to the other and that all the government needed to do was to get Vice President Jonathan to act as President if there was no need for the President to resign.
He said that if things continue this way,Â he feared for Nigeria .
Itâ€™s unfortunate illegal, Falana
The president just forwarded the name of his nominee â€” Justice Katsina Alu as the next Chief Justice of Nigeria (CJN) to the Senate for confirmation. After the confirmation was carried out by the Senate, and his lordship was found credible, the Senate has not responded to the President by writing to him. Hence, the President has not appointed the Chief Justice of Nigeria.
Chief Robert Clarke (SAN)
I align myself with the position maintained by Justice Belgore that the swearing-in ceremony was in order. Any legal officer or a notary public in line with the oath law can perform the swearing- in ceremony because there was no law that says that it is the President that must perform the ceremony. It was only the practice during the days of the military where the Head of StateÂ swore the new Chief Justice vis- a- vis the executive president.
I do not expect all this noise about the swearing-in ceremony. I would have said any of the Supreme Court justices instead of the outgoing Chief Justice. Nigeria, Justice Idris Kutigi himself to have sworn-in Kastina Alu. The argument by the NBA is that there was no vacancy by the time Justice Kastina Alu was sworn-in.
From the position of Section 51 of the constitution, by the time the president sends the name of the nominee to the Senate and he was cleared by the lawmakers, he has already assumed to have been confirmed by the President who nominated him or sent his name to the Senate for clearance. So, the argument that the President is yet to confirm the appointment has no basis in law and cannot stand.