Following the swearing-in ceremony of Justice Kudirat Kekere-Ekun as acting Chief Justice of Nigeria (CJN), there have been queries about a possible constitutional breach.

Babajide Sanwo-Olu, the Lagos State governor, posted about Kekere-Ekun’s appointment on X on Friday. More questions about the procedure followed the governor’s post too.

I attended the swearing-in ceremony of Justice Kudirat Kekere-Ekun, who was appointed by His Excellency President Bola Tinubu as the 23rd Acting Chief Justice of Nigeria, pending her confirmation by the Senate. pic.twitter.com/IYUI2iKmyo— Babajide Sanwo-Olu (@jidesanwoolu) August 23, 2024

“I attended the swearing-in ceremony of Justice Kudirat Kekere-Ekun, who was appointed by His Excellency President Bola Tinubu as the 23rd Acting Chief Justice of Nigeria, pending her confirmation by the Senate,” Sanwo-Olu’s post reads.

The governor’s remark would, however, attract a response from an X user with the handle @anonymousmood, who posted:

“Read your statement again. “Pending her confirmation” but she was sworn in. Welcome to Nigeria.”

Read your statement again.. “Pending her confirmation” but she was sworn in.Welcome to Nigeria — MOOD OBIDIENT (@anonymousmoood) August 23, 2024

From the governor’s and X user’s posts, two phrases stood out: “swearing-in ceremony” and “pending confirmation from the senate”.

Isolating the two phrases also then led to the following questions:

Was President Tinubu’s decision to appoint Kekere-Ekun as acting CJN when she had not been screened and confirmed by the Senate a constitutional breach?

READ ALSO: JUST IN: Tinubu Swears In Kudirat Kekere-Ekun as 23rd CJN

Is Kekere-Ekun’s appointment also a sign that Nigeria only has a rubber-stamp Senate in place?

To appropriately answer these questions, EQ decided to seek two lawyers’ opinions on the matter.

ABIMBOLA OJENIKE’S OPINION

EQ consulted Abimbola Ojenike, its legal counsel and Managing Partner of Slingstone LP, on the legality of the move made by the president to appoint Kekere-Ekun as acting CJN, pending her confirmation by the Senate.

“In determining the constitutional validity of the procedure adopted in the appointment of the Acting CJN, it’s important to consider Sections 231(1, 4 and 5) and 318 (3 & 4) of the 1999 Constitution (as amended),” Ojenike said in an interview with EQ on Saturday.

“Section 231(1) provides that the appointment of a person to the office of the Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to the confirmation of the Senate.

“However, Section 231(4) specifically empowers the President to appoint the most senior Justice of the Supreme Court to perform the functions of the Chief Justice of Nigeria if the office becomes vacant or the holder of the office is unable to perform the functions of the office.

“For this reason, the procedure for appointment in acting capacity under Section 231(4) must be distinguished from the constitutional requirements for appointing a substantive CJN under Section 231(1), which requires Senate confirmation.

“Presenting an acting CJN for senate approval is only a desirable surplusage where it is practically possible to do so without a vacuum in the office. However, no specific constitutional provision requires a senate confirmation for an appointment in acting capacity.”

Ojenike further told EQ that the tenure of an acting CJN is constitutionally limited to just three months.

“The constitutional intendment of section 231(4) is to address the exigency of ensuring there is no vacuum in the office, especially one that might be occasioned if NJC recommendation and Senate confirmation were required to appoint an acting CJN,” said Ojenike.

“To prevent the abuse of the power of the President to appoint an acting CJN, section 231(5) of the Constitution provides that the appointment is made only once and the tenure of the acting CJN is constitutionally limited to 3 months except on the recommendation of the NJC.”

When he was asked if holding a swearing-in ceremony for the acting CJN had not constituted any breach, Ojenike responded, saying:

“Section 318(3) of the Constitution and Section 11 (1) of the Interpretation Act, equally made applicable under Section 318(4) of the Constitution, provide that a reference to the holder of an office shall be construed to include the reference to a person for the time being acting in the office.

“Consequently, it is not a constitutional breach to swear in the acting CJN in the same manner as the CJN because reference to the CJN includes reference to the acting CJN.

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“Those who challenge the constitutional validity of the acting CJN’s appointment may then, however, argue that since reference to the CJN includes reference to the acting CJN by virtue of Section 318(3) of the Constitution, the requirement for NJC recommendation and senate confirmation which is applicable to the appointment of a substantive CJN under Section 231(1) of the Constitution must also be applicable to the appointment of the acting CJN.

“Such interpretation would then defeat the intention of the “drafters” of the Constitution to prevent a vacuum in the office of the CJN.

“There is no clear expression in the constitution that makes Senate confirmation mandatory for an appointment in acting capacity pursuant to Section 231(4) of the Constitution.”

Asked if he felt Nigeria had a rubber stamp Senate, Ojenike aptly said:

“Yes, it does.”

When EQ further asked the lawyer whether the 1999 constitution should be further revised such that there would be clarity on procedures to be taken in appointing a CJN or an acting CJN, the lawyer pointed out that there were more important fundamental issues that needed attention than the appointment of a CJN.

“There are more fundamental issues that need addressing in a constitutional reform. I don’t think the provisions on the appointment of the CJN are part of those.” Ojenike said.

“If you give Section 231(1-5) a meaning that accords with the necessity of preventing a vacuum in the office of the CJN, there should be no controversy.

“There are also safeguards against arbitrary exercise of the President’s power of appointment under Section 231(4 and 5). These include the clarity on who can be appointed (most senior Justice of the Supreme Court) and that provision is considerably self-executing.

“The tenure of the acting CJN is also short, and it’s a one-off appointment. There is no controversy here that warrants an urgent constitutional amendment.

“The contention that the Senate has been sidestepped doesn’t go far because there is no express constitutional prescription for that under the specific provision governing appointment of an acting CJN.”

RIDWAN OKE’S POSITION

Ridwan Oke, a Lagos-based lawyer, told EQ in an interview that the President could appoint an acting CJN without the approval of the Senate.

“The President can actually swear in an acting CJN without the approval of the Senate, constitutionally,” said Oke.

“If the position of the CJN is vacant, the highest ranking justice of the Supreme Court will have to fill the vacuum. The president doesn’t need the approval of the Senate to appoint an acting CJN.

“The justice can only stay in acting capacity for three months. It’s only when it’s time for the acting CJN to be confirmed that his or her name would be forwarded to the Senate for approval. The President doesn’t need the approval of the Senate to appoint an acting CJN.”

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When Oke was asked whether the 1999 constitution should be revised such that there would be clarity on procedures to be taken in appointing a CJN or an acting CJN, he said a revision was needed.

“I think there should be a revision for clarity instead of having something discretionary,” Oke said.

“It’s better that way because Nigerian leaders have been known to abuse matters of discretion. So, I think there should be clarity.

“But as a matter of practice and how CJNs are being presently appointed in an acting capacity, the law isn’t expressively against the president’s appointment.

“What they do most times is to appoint the new CJN in acting capacity and send their names to the Senate for confirmation before the three months elapse. Pending the time of approval for the senate, they are sworn in an acting capacity.”

FESTUS OGUN’S CONTRIBUTION

Festus Ogun, another Lagos-based human rights lawyer, told EQ that President Tinubu could have just offered Kekere-Ekun an appointment letter to assume office as acting CJN.

“When there is a vacancy in the office of the CJN, the President has the power to appoint someone to fill that position in acting capacity,” said Ogun.

“I am, however, not aware of any provision in the constitution that states that the President can ceremoniously swear in an acting CJN. What the law says is that the president should appoint.

“I do not believe that the whole swearing in ceremony was needed. I do not also think it is provided for by law.

“Swearing in an acting CJN is like placing the cat before the horse. I feel issuing an appointment letter to the acting CJN to assume office would have been better. When she eventually gets confirmed by the Senate, she can then be properly sworn in. That’s the way I think it should be done.”

Ogun also told EQ that the government should also start prioritising the immediate appointment of replacements before serving CJNs leave office.

“We have to also start prioritising the appointment of successors before serving CJNs leave office,” he said.

“The President ought to have forwarded the name of Ariwoola’s successor to the Senate for vetting and confirmation even before the immediate past CJN left office. The Senate would have then done their bit and Kekere could have been sworn-in as the new CJN on Friday, instead of assuming office as an acting CJN.”

PRECEDENCE

On June 27, 2022, Muhammadu Buhari, then president of Nigeria, appointed Oluwakayode Ariwoola, Kekere-Ekun’s predecessor as acting CJN. Ariwoola’s appointment came after Muhammed Tanko, who was CJN at the time, voluntarily resigned from the role.

Ariwoola’s position as CJN was subsequently confirmed by the Senate on September 21, 2022, three months after he was initially appointed as acting CJN.

Tanko, Ariwoola’s predecessor, was also first appointed as Nigeria’s acting CJN by the same Buhari on January 25, 2019. After serving in an acting capacity for six months, he was sworn in as the country’s CJN on July 17, 2019. This was after his position was confirmed by the Senate.
The post ANALYSIS: Is Kekere-Ekun’s Appointment as Acting CJN a Constitutional Breach? appeared first on Foundation For Investigative Journalism.