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Swearing in the Chief Justice of Nigeria debate

By Emmanuel Majebi

On December 30,  2009 the retired Chief Justice of Nigeria, Justice Idris Legbo Kutigi swore in his  successor, Justice Alloysius Katsina Alu. Prior to this swearing in , the convention for over 50 years of Nigeria’s existence was for the CJN to be sworn in by the President or Head of State or any one acting on his/her behalf.

There was really no express provision of the Constitution or any Law which demanded that an incoming CJN be sworn in by only the President or Head of State but I guess it was convention which gained currency and became concretized under the military. The military regimes were a command type of government in which the Head of State MUST necessarily be seen to be IN CHARGE.

Thus for anyone to begin to function in any important position it was necessary for such office holder to be seen to have been “authorized” by the Head of State.

There has been a lot of hue and cry by various lawyers and so called Human Rights Activists who seem to claim that it is an illegality to have a sit in CJN to swear in the incoming CJN. In my opinion the only solid arguement they have put forward is that which says that it is not proper to have 2 CJN’s in office at a time. But did we really have 2 CJNs in office at the same time? I believe not.

The Constitution allows an acting CJN to be appointed upon the retirement of an incumbent CJN, but there is nothing that says that you must wait for the CJN to resign then appoint an acting CJN pending the appointment and confirmation of a new CJN. If a President doesn’t want a vacuum at all,  the process for the appointment of a new CJN can be concluded well before the retirement of the incumbent and the President can actually swear in the new CJN pending the time the incumbent’s tenure would expire.

I submit that where there is an incumbent in office who has a fixed tenure, the fact that his successor is sworn in does not terminate the tenure of the incumbent before the fixed term nor does it create a parallel authority on the same office.

If for example President Yaradua was not sick and he decided to swear in Justice Katsin-Alu as soon as the Senate confirmed his appointment a few weeks ago in order to allow him take over from Kutigi as soon as his tenure ends on 31st December 2009, would we have had 2 CJN’s at the same time?  I just don’t know how a person who is sworn in to an office can purport to “be in office” until the expiry of the tenure of the incumbent?

Let us now look at what the law says on this matter. Is there anything in any law that says that an incoming CJN must be sworn in by the President? In the case of the President of Nigeria section 140(1) says he must swear to an oath of office before he takes office and subsection(2) of that section states specifically that : “The Oaths aforesaid shall be administered by the Chief Justice of Nigeria or the person for the time being appointed to exercise the functions of that office.’

There is no corresponding provision to section 140(2)  in the 1999 Constitution specifically providing that the CJN should swear before the President of Nigeria or indeed anyone else before taking office. I submit that if the drafters of the constitution intended that the CJN MUST swear his oath of office  before the President they would EXPESSLY have provided for a section akin to section 140 (2) with respect to the President’s swearing in.

Section 290. of the 1999 Constitution states thus, (1) A person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this Constitution and has subsequently taken and subscribed the Oath of Allegiance and the Judicial Oath prescribed in the seventh Schedule to this Constitution. (2) The oaths aforesaid shall be administered by the person for the time being authorized by law to administer such oaths.

This is the section which provides for taking of oath by Judicial officers; of which the CJN is one; and it does not state that the CJN should take his oath of office before the President of Nigeria. The convention of
swearing in the CJN before the President was not possible in the case of Justice Katsina Alu as the President was unavoidably absent. Sub section 2 of section 290 says the oath should be administered “…person for the time being authorized by law to administer such oaths…”

In the absence of the President who had always done the job, it was necessary to fall back to  the “Law” which authorizes   a “person” to swear in judicial officers and in this case that was the Oaths Act. Section 2 and the second schedule of the Oaths Act says that either the President or the Chief Justice shall administer the oath of office on the Judicial officers one of which the CJN is one. In America from where we adopted our 1999 Constitution a new Chief Justice is sworn in by the out going Chief Justice.

Chief Justice Warren Burger (rtd) former U.S Chief Justice it was who  administered the oath of office on his successor Justice William Rehnquist in 1986. Rehnquist in turn; when he retired in the year 2005; administered the oath of office on the incumbent American Chief Justice John Roberts. ln the case of the swearing in of Chief Justice Rehnquist in 1986 he even took his   oath as Chief Justice from retiring Chief Justice Warren Burger, with President  Ronald Reagan  looking on as a mere spectator!

I would have thought that lawyers would see the swearing in of the incoming CJN by the out going one as a major step towards the removal of the judicial arm of government from subservience to the Executive ; a trend which became a norm under the military. The fact that the Executive arm of Government cannot get it’s act together should not be allowed to affect the proper functioning of the Judicial arm.

This is more so as the Constitution does not provide expressly that the CJN SHALL take his oath of office before the Head of the Executive arm of Government ( viz The President) .

In my opinion this whole hullabaloo over the swearing in of the new CJN by the former CJN was an unnecessary storm in the teapot! To my mind the law on the matter is very clear and straight forward. I honestly do believe that this arguments arose as an extension of the argument of some person who felt the President ought to have handed over to the Vice President before proceeding on his medical treatment in Saudi Arabia.

In an attempt to prove that the president’s absence has affected certain things they have sought to make a mountain out of the swearing in of the new CJN by the former one. But the President had done everything that is made mandatory of by the Constitution in the appointment of a new CJN viz nomination of the new CJN in conjunction with the National Judicial Council (NJC) and forwarding of same to the Senate for their confirmation.

The issue of swearing in by the President is not mandatory under our constitution and we should nt make heavy weather out of it.

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