Sagay’s interpretation of s.231 of Constitution on CJN
On page 2 of the February 1, 2017 edition of The Nation newspaper, Prof. Itse Sagay (SAN), Chairman, Presidential Advisory Committee Against Corruption, forcefully inveighed against the debate on the appointment of the Hon. Justice Walter Nkanu Onnoghen as acting Chief Justice of Nigeria (ACJN) by the Presidency, a metonym for President Muhammadu Buhari. The debate, according to him, “has generated a lot of heat, acrimony and self-generated anger without generating a single ray of light…” He, therefore, decided “to intervene in the debate as lawyer (sic) and as someone who is an occasional beneficiary of informal sources of information.”
After stating correctly that the appointment of a Chief Justice of Nigeria (CJN) is provided for in section 231 of the Constitution, he went on to aver that “the President is the appointor”, subject to the condition that, prior to such appointment, “he must receive a recommendation from the National Judicial Council (NJC) after which he forwards the name of the appointee to the Senate for confirmation.” All these are statements of fact as they dovetail into the provisions of subsections (1) and (4) of section 231 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) except for the construction he has quite clearly given to the words, “the President is the appointor.” If, by the word “appointor”, the learned Senior Advocate of Nigeria means (as is clearly evident in his later submissions) any person who, as a puissant functionary, appoints, or executes a commanding power of appointment of a CJN, and not as an official who makes an obligatory or automatic appointment of any person recommended to him by the NJC, then we come to a parting of the way.
In disagreeing with his fellow Senior Advocate of Nigeria, Chief Wole Olanipekun, Prof. Sagay said, among other things, that the President is not “a cipher or a robot, who has to pass on a nomination coming from the NJC to the Senate without discretion, input or without the right of rejecting such an appointment and calling on the NJC to send other nominations” (underling mine). “The truth of the matter,” the Prof. further added, “is that the President can turn down the recommendation of the NJC and request that another name be recommended,” the President not being a rubber stamp.
With the profoundest respect, I strongly disagree with the learned Professor in all his arguments. As far as the 1999 Constitution is concerned, the provisions of s. 231 thereof make the President a “robot”, a “cipher” and a “rubber stamp” in the appointment of a CJN. He cannot turn down the nomination decided on by the Federal Judicial Commission (FJC) and sent, after due consideration by the NJC, to the President for action only. If the Prof. insists that this is not so, he should show Nigerians which portion of the 1999 Constitution provides for such executive powers, or show how any of the known canons of statutory interpretation enabled him to construe s.231 as giving the President such powers of rejection of FJC/NJC’s recommendation and request for another one, or a canon of construction which grants the Prof. a poetic licence to smuggle an idea that is foreign to the Constitution into it!
Section 231 (1) of the Constitution 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 confirmation by the Senate” (underscore mine). And where the office of the CJN is vacant, the President MUST, under the provisions of subsection (4) of s. 231 of the Constitution, appoint the most senior Justice of the Supreme Court as acting CJN. He cannot, by reason of that subsection, exercise any discretionary power in favour of any other legal officer in or outside the Supreme Court. When applied to a public functionary, discretion means a power or right conferred upon him/her by law to act officially in certain circumstances, according to the dictates of his/her own judgment and conscience, uncontrolled by the judgment or conscience of others. The 1999 Constitution grants no such discretion to the President. For proof, whereas s.211 (1) of the 1979 Constitution provided that “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President in his discretion subject to confirmation of such appointment by a simple majority of the Senate”, the sagacious draftsmen of the 1999 Constitution rightly expunged the word discretion from subsection (1) of s.231 when they realized that the doctrine of separation of powers is enshrined in sections 4, 5 and 6 of the Constitution, which presumes that the appointment of the CJN should not be the sole prerogative of either the Executive or the Legislature. Or which Constitution are we talking about, 1979 or 1999? As the learned SAN knows very well, the popular Latin maxim, “leges posteriores priores contrarias abrogant” (later laws abrogate prior laws that are contrary to them) continues to be valid!
According to the late learned, piquant-witted Professor of Law, Jadesola Akande, in her seminal book Introduction to the Nigerian Constitution, “there is a provision for the appointment of an acting Chief Justice in the absence of the substantive office holder for any reason. Although it is provided that the President does the appointment, in practice, this is a mere formality because the Supreme Court Justice next in order of seniority acts as Chief Justice.”
Quite clearly, there is no zone of twilight between the President and the NJC in which both the former and the latter have equal rights in the appointment of a CJN. Unlike s.147 of the 1999 Constitution which empowers the President to APPOINT his Ministers according to his own judgment and conscience but subject to confirmation of such Ministers by the Senate, s.231 on the appointment of a CJN (head of the third arm of Government) confers no such powers on the President. The President cannot, for example, appoint any person other than the most senior Justice of the Supreme Court as acting or substantive CJN as was done when His Excellency Judge Taslim Olawale Elias or Sir Darnley Alexander was appointed CJN from outside the Judiciary.
I posit, with respect, that subsections (1) and (4) of section 231 of the 1999 Constitution (as amended), in contradistinction to subsection (1) of section 211 of the 1979 Constitution forcefully prevent the President from exercising any discretionary power over any recommendation of a successor CJN that may be made to him by the NJC. Nobody should goad this President, already characterized by imperious tendencies, into full-blown tyranny or to assume powers that are alien to our written Constitution through the instrumentality of legal misconstructions.
• Akiri is a Lagos-based lawyer.