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Who tenders the oath?

Tony Momoh
THE Nigeria Bar Association, the Senate of the National Assembly, the Nigerian Press, Civil Society bodies and all others who have a stake in  fighting for and ensuring the supremacy of the constitution must rise as one body and ask for the resignation or, if he fails to quit, then the removal of our minister of justice and attorney-general of the Federation, Michael Aondoakaa for stubbornly seeking legal subterfuges to undermine the clear provisions of the Constitution of the Federal Republic of Nigeria.

The attorney general is the chief law officer of the republic, but he has since turned himself into the chief law interpreter, and everyone knows that the two functions are not the same. The latest circuitous route he had recourse to, to get officers of the republic to perform their duties is the appointment of the chief justice of Nigeria. By the time you read this, we must have set a record of having a chief justice of Nigeria not sworn in by the head of state of our country.

By glibly settling for what we like but shamelessly ignoring the provisos in the sections we cite in support of our claims, we have set this country on fire because we avoid what the Constitution wants done; because we want to perpetuate narrow interests that may lead us into trenches when those who think they are in charge lose control of the situation.

Last week, I wrote on the limitations we are deliberately putting on constitutional provisions on delegation of power. We have provision for acting governor, acting president, acting chief judge, acting speaker, but we subvert these positions by making those who hold them irrelevant.  Since Aondoakaa assumed office, we have had to look at what the laws say on many issues so that we can cloak what we want to achieve in legal garb.

And on many occasions we have exposed our legal icons to opinions that make the unlearned wonder whether the law is really not an ass. The latest faux pas is the attorney-general’s insistence that  Mr. Justice Katsina-Alu be sworn in as chief justice of Nigeria by another that the law seems to have provided for, but who convention has denied that chore.

My claim is that the outgoing chief justice can only swear in an acting chief justice and that only the president or someone who acts in that position can swear in the chief justice of Nigeria. This is my argument. The present Oaths Act came into effect on October 1, 1963 when Nigeria assumed the status of a republic. That act repealed two other acts by consolidating them and updating them.

These were the Oaths and Affirmations Act, and the Official Oaths Act, Caps 142 and 143 respectively of the 1958 Laws of Nigeria. They had been promulgated in 1908 and amended by legal notices, one of which was Legal Notice 61 of 1933 which provided in Part 111 to the Second Schedule to the Oaths Act that the governor-general would administer the oath of office to the chief justice.

The 1963 Oaths Act is Cap 333 of the 1990 Laws of the Federation of Nigeria, and Cap 01 of the 2004 Laws of the Federation of Nigeria. In the repealed Acts of 1908, there is a procedure for appointment to offices and assumption of office.

Section 5 of the Official Oaths Act, repealed by the 1963 Oaths Act, provided that the Oath of Allegiance and the Judicial Oath shall be taken by each of the officers named in the schedule “as soon as may be after his acceptance of office.”

Note that the appointment to the office for which the oath is provided has to be communicated to the person appointed who must himself accept the appointment before arrangement is made to swear him in. Let us apply this scenario to the office of chief justice of the Federation. He is nominated by the president who presents the nomination to the Council of State. The nomination is then sent to the Senate of the National Assembly.

After that nomination is endorsed by the Senate, that endorsement must be communicated to the president who then sends a letter of appointment to the person endorsed. The person endorsed must send to the president a letter of acceptance of the office. It is then that the swearing in is due. There can be no assumption of office until that swearing in takes place.

The question then is who swears in the chief justice? The issue to be settled before that question is answered is whether the Senate of the National Assembly has communicated the clearance of Justice Katsina-Alu to the president and when did that happen?

As at the time of the clearance, the president had left the country. Of course, as we have been told, government works even when the chief executive is not there! So the endorsement of the Senate must have been sent to the Presidency.

Who received it and who wrote or was authorised to write to Justice Katsina-Alu that he had been appointed chief justice of Nigeria? Did he accept the offer? Of course he would not reject it, but did he accept it?  Acceptance of the offer is a necessary step to arranging the swearing in of the person appointed.

Then the swearing in! Is it necessary? Some respected legal minds have said it is not necessary to take a judicial oath once such oath had been taken in the past! They are trying to argue that having taken the judicial oath in the past, the chief justice does not need to take any other oath. And they cite section three of the Oaths Act which discourages unnecessary repetition of oaths!

But they refuse to look at subsection three of the section which clearly states that although someone who has taken the oath of allegiance and the judicial oath shall not be required again to take the judicial oath “on appointment to any other office or on any other occasion,”  those holding specified offices listed in the schedule must take the oath of the office listed. This has been a binding provision since October 1, 1963, by order in a legal notice issued in 1967.

So those who claim that the provision was no longer applicable after we had achieved the status of a republic will have to tell us why the provision is in our 1990 and 2004 laws of the federation. The final point is who administers the oaths to persons listed in the Second Schedule?

We are here concerned with the Oath of Allegiance and the Judicial Oath. The oath to be taken by the chief justice of Nigeria, justices of the Supreme Court, president and justices of the Court of Appeal, chief judge and judges of the Federal High Court and commissioners of inquiry and tribunals is to be tendered by the president or the chief justice of Nigeria.The person to swear in the president is listed to be the chief justice of Nigeria, and that would include someone who acts in that position.

But it is questionable whether the chief justice can swear in a chief justice of Nigeria where it is clear that although the chief justice can swear in other justices in the Supreme Court and the Court of Appeal and the Federal High Court, he cannot swear in himself; nor should he swear in someone to succeed himself when the president or someone who acts in that position should do so.

If we look at the provisions of the laws on oaths since 1908, never have we had a chief justice swearing in a chief justice. In fact, the provision that the president or the chief justice can swear in the chief justice, and other judicial officers of  federal courts appeared for the first time in that Oaths Act of 1963.

But only the president has sworn in a chief justice and the governor a chief judge of the state. But with what happened last week, we now have a situation where ,in the legal history of Nigeria, we have a chief justice who was sworn in by another chief justice because we want to avoid the straight constitutional provision that in the absence of the president whose present incapacity to perform the functions of his office is undeniable, the vice president should be acting president until the president returns.

My humble submission is that the chief justice that left on December 31 would have rightly sworn in an acting chief Justice pending the precedent steps necessary in the appointment of a chief justice of Nigeria.


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