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Politics of succession at the Supreme Court

As it is in all countries all over the world, except, perhaps, in a few totalitarian states (if there still exists any), the Nigerian Supreme Court, the highest in the land, is the final forum for appeal in the nation’s adjudicatory system. The Apex Court, as it is often called, has interpreted the Constitution and has decided the country’s pre-eminent legal disputes since it was established. In fact, virtually every issue of significance or dispute of immense value in the Nigerian society eventually arrives at the Supreme Court. Its decisions ultimately affect the rights and freedoms of every citizen–rich, poor, Nigerians or foreigners living in the country, pregnant women, those accused of committing crime, those on death row, publishers, journalists, lawyers, bankers, accountants, environmentalists, business men and women, armed robbers, drug peddlers, prostitutes, and a host of others. The period from its inception till date, has not only witnessed the departure of several members of the Court, including one of its most influential figures in recent times, Justice Chukwudifu Oputa(though not Chief Justice), but the arrival of the first female Chief Justice of the Federation, Justice Mariam Aloma Mukhtar.

This period constitutes years, moreover, that were characterised by the continuing recognition of the verities of the Court’s role as a policymaker, of its tripartite role as a legal, a governmental, and, yes, an organic political institution. The Supreme Court has limited but exclusive original jurisdiction in any dispute between the Federation and a state or between states if and in so far as that dispute involves any question (whether of law or fact) on which the existence of a legal right depends. Indeed, the Supreme Court has continued to manifest its embrace of an activist role, of judicial legislating, of lawmaking, of judicial activism, even if some of its nuances may well be distinguished from its predecessor tribunals. Above all, the Court, since the amalgamation of the Northern and Southern Protectorates of Nigeria in 1914 when the pioneer Chief Justice was Sir Edwin Speed, maintained its revered and enviable tradition of succession based on seniority. Of course, to establish criteria for standards of merit as a basis for selection of individuals qualified to serve on our courts is difficult and definitionally controversial, still establishment of criteria for qualification and selection and for bases for evaluative judgements of performance cannot be ruled out. Yet, unfortunately, the media are, of recent inundated with feelers of plots by the powers-that-be to politicise the succession process of the Apex Court which is much against the cherished tradition of the Court.

With the reigning Chief Justice of Nigeria, Hon. Justice Mahmud Mohammed due for retirement on November 10, 2016 when he would have attained his mandatory retirement age of 70, an alleged plot by the powers-that-be to truncate the age-long seniority rule in the judiciary is said to be in the pipeline. Reports have it that there are very powerful forces plotting to alter the seniority rule that would probably see the second-in-command, Hon. Justice Walter Nkanu Onnoghen take over the affairs of the Apex Court after Mohammed retires from the Bench come November 10. These sinister forces have reportedly argued that anybody appointed to be CJN must not necessarily be the most senior justice of the Supreme Court. But their lame argument holds no water as more progressive lawyers and concerned Nigerians have condemned the move. Not even military rulers, including General Muhammadu Buhari himself, with the enormous powers they wielded, attempted to emasculate the highest court in the land. Even throughout his eight two-terms tenure as civilian president, Chief Olusegun Obasanjo did not change the rule governing succession at the Supreme Court. If we must consolidate this democratic dispensation, then we must not be seen to be dragging it to the mud. In the face of obvious agitations for secession and militancy in the South East and South-South amidst cries of marginalisation, we must be careful not to aggravate the situation due to the ambition and maladroit hues of a few people in power who want to see Nigeria as their private estate.

Indeed, there are palpable fears that if President Buhari succumbs to mounting pressures from some Northern elite and their All Progressives Congress, APC, collaborators not to send Justice Onnoghen’s name to the Senate for confirmation as CJN, the South will miss the golden opportunity to clinch the exalted office. It would be recalled that Justice Ayo Irikefe who was CJN between 1985 and 1987 was the last Southerner to occupy the office, about 30 years ago. Unarguably, the CJN sits as “Primus inter pares” (first among equals) in the intricate power calculus in the nation’s judiciary and one of the first five most important personalities in government. He is the Chairman of the Federal Judicial Service Commission, FJSC, as well as Chairman of the National Judicial Council, NJC. Both commissions are very important as they are involved in the process of promoting anybody to any position in the federal judiciary. Against the backdrop of the perceived attempt by the powers-that-be to northernise and Islamise all existing institutions of government in Nigeria in an orchestrated and vengeful political gerrymandering, any attempt to undermine the judiciary would spell doom for the country.

Since 1914 when this vast geographical abstraction became one Nigeria, and since 1960 when the country gained flag independence on a platter of gold from its colonial masters, the headship of all courts, including the Supreme Court is usually based on seniority. In fact, from the High Court to the Supreme Court, the tradition has not changed. It is therefore not now that a Southerner will qualify to occupy the seat that the tradition would change abruptly. Yet, it is not about Onnoghen as a person. It is about equity and justice which the Supreme Court indubitably symbolises. But if Onnoghen is denied this opportunity, chances of having another Southerner to occupy the position could be very remote in a country we all lay claim to as ours, as it would be 15 to 20 years from now since most of the justices in the Apex Court would remain on the queue till they retire at 70. The Supreme Court of Nigeria consists of the CJN and such number of justices of the Supreme Court, not exceeding 21, as may be prescribed by an Act of the National Assembly. Presently, the Court is made up of the CJN and 14 other Justices.

If, as investigation revealed, the plot to stop Onnoghen started gathering momentum when the APC expressed anger with the Apex Court’s favourable verdict for the opposition Peoples Democratic Party, PDP, in some South-South states, why use Onnoghen as scape goat? Do leaders of the ruling party expect the Court to dance to their tune at the expense of justice? Why have they forgotten so soon that Onnoghen was among the three justices of the Supreme Court who took a minority position and insisted that the massively flawed 2007 presidential election which enthroned the late President Umaru Musa Yar’Adua be cancelled in favour of Mr. Muhammadu Buhari of the All Nigeria People’s Party (ANPP)?

Born on December 22, 1950, in Cross River State of Nigeria, Justice Walter Samuel Nkanu Onnoghen who graduated in Second Class Upper Division from the prestigious University of Legon, Ghana, became a justice of the Supreme Court in 2005. If nominated and confirmed by the Senate, he would retire from the Bench in 2020 when he would have clocked 70. The incumbent CJN, Justice Mohammed is from Taraba State while the next after Onnoghen, Justice Tanko Mohammed hails from Bauchi State. Since after Justice Irikefe in 1985, the North has produced virtually all the CJNs till date:

In the United States of America, the Supreme Court is made up of the Chief Justice of the United States of America and eight other Associate Justices. Even in that country from where we borrowed our Executive Presidential System of government, the implications of power and influence in the Supreme Court, beginning with the dramatic shift that occurred as leadership passed from the inimitable Earl Warren to Warren Burger were legendary. The years from the late ’60s the ’70s were years of great dramatic tension. With the forced resignation of Abe Fortas, the passing of both the highly esteemed John Harlan and the great jurist Hugo Black, and finally, the illness and resignation of the Court’s great libertarian, William O. Douglas, a realignment took place. With President Nixon’s appointments- Burger himself, Harry Blackmun, William Rehnquist, Lewis Powell- and the appointment of John Paul Stevens by President Gerald Ford, only William Brennan and Thurgood Marshall remained of the old liberal majority. So, there is the place of ideological balance in the Supreme Court. Currently, in the Nigerian Supreme Court, with the exit of brilliant minds such as Justice Pat Asholonu, and Justice Oputa, Onnoghen happens to be the Court’s intellectual power house.

If, as investigation revealed, the plot to stop Onnoghen started gathering momentum when the APC expressed anger with the Apex Court’s favourable verdict for the opposition Peoples Democratic Party (PDP) in some South South States, why use Onnoghen as scape goat? Do leaders of the ruling party expect the Court to dance to their tune at the expense of justice? Why have they forgotten so soon that Onnoghen was among the three justices of the Supreme Court who took a minority position and insisted that the massively flawed 2007 presidential election which enthroned the late President Umaru Musa Yar’Adua be cancelled in favour of Mr. Muhammadu Buhari of the All Nigeria People’s Party (ANPP)? Born on December 22, 1950, in Cross River State of Nigeria, Justice Walter Samuel Nkanu Onnoghen who graduated in Second Class Upper Division from the prestigious University of Legon, Ghana, became a justice of the Supreme Court in 2005. If nominated and confirmed by the Senate, he would retire from the Bench in 2020 when he would have clocked 70. The incumbent CJN, Justice Mohammed is from Taraba State while the next after Onnoghen, Justice Tanko Mohammed hails from Bauchi State. Since after Justice Irikefe in 1985, the North has produced virtually all the CJNs till date: Justice Mohammed Bello (1987-1995), Justice Muhammadu Lawal Uwais (1995-2006), Justice Salisu Modibo Alfa Belgore (2006-2007), Justice Idris Legbo Kutigi (2007-2009), Justice Aloysius Iyorgyer Katsina-Alu (2009-2011), Justice Aloma Mariam Mukhtar (2012-2014) and the presiding deity, Justice Mahmud Mohammed (2014 till date).

Dan Amor, a journalist and public policy analyst, wrote from Abuja

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