Arising from the controversy sparked by the outburst of a 62-year old lawyer-turned-politician, Donald Duke on the legality of the swearing-in of Justice Kudirat Kekere-Ekun by President Bola Ahmed Tinubu as the new Chief Justice of Nigeria in acting capacity, without the parliamentary imprimatur, Ise-Oluwa Ige, in this report, places side by side the relevant provisions of section 231 (1)&(4) of the 1999 Constitution on the procedure for filling the vacant position of the Chief Justice of Nigeria (CJN) relied upon by Duke with the perspectives of senior practicing lawyers in the country to interrogate the issue.
On August 23, 2024, at about 11:38 am, President Bola Ahmed Tinubu swore-in Justice Kudirat Motonmori Olatokunbo Kekere-Ekun as the Chief Justice of Nigeria in an acting capacity.
That was about 24 hours after the immediate past Chief Justice of Nigeria, Justice Olukayode Ariwoola bowed out of the Supreme Court bench upon attaining the mandatory retirement age of 70 years.
Justice Kekere-Ekun took the oath of office at the Council Chamber of the State House, Abuja pending her confirmation by the Senate.
She is the 23rd Chief Justice of Nigeria and second female CJN in the history of the country.
Before and after she was sworn-in, many Nigerians from all walks of life had not only endorsed her as a round peg in a round hole for the job but had also congratulated the judiciary on having Justice Kekere-Ekun as its helmsman at a time when the public trust in the judiciary had significantly dropped.
In fact, lawyers, academics, politicians, were busy setting agenda for the new CJN especially since after the National Judicial Council (CJN) forwarded her name to President Bola Tinubu as the CJN designate.
However, on August 25, 2024, barely 48 hours after she took her oath of office as Acting CJN, a former Governor of Cross River State, Donald Duke declared Justice Kudirat Kekere-Ekun’s assumption of office as strange, irregular and illegal.
Duke had featured alongside a legal expert and Principal Partner at Distinguished Legal Practitioners (DLP), Uchenna Ogunedo Akingbade, on a 30-minute programme—Breakfast Extra—of the News Central TV tagged Big Story, to discuss various topical issues regarding the judiciary including the recent judgment of the Supreme Court giving financial autonomy to the 774 local government councils in the country and the swearing-in of the Acting Chief Justice of Nigeria, Justice Kudirat Kekere-Ekun.
Duke is a 1982-holder of LLB degree in Law from Ahmadu Bello University. He also obtained his BL degree (Barrister at Law) in 1983 from the Nigerian Law School, Lagos and an LLM in Business and Admiralty Law in 1984 from the University of Pennsylvania. He is also a politician.
Specifically, about 27 minutes into the programme, one of its anchors, Judith Atibi had asked the lawyer-turned politician, Duke to offer his perspective on Tinubu’s swearing-in of the CJN designate as the Acting Chief Justice of Nigeria without parliamentary confirmation given the fact that Justice Kekere-Ekun was purportedly denied US Visa recently.
The ex-governor had, in an outburst, now a subject of public debate, relied on relevant provisions of the 1999 Constitution to posit that Tinubu erred in law to have sworn in Kekere-Ekun in acting capacity, because she would still appear before the Senate for screening and possible confirmation.
BAR & BENCH WATCH reports that Section 231 (1) of the 1999 Constitution provides: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate”
Section 231 (4) of the same constitution however provides that “If the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then, until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.”
The former governor had insisted that Kekere-Ekun shouldn’t have been administered the oath of office since she could not be sworn in, the second time after Senate confirmation.
Specifically, Duke had argued that the provisions of the 1999 Constitution was clear as to when a Chief Justice of Nigeria could take his or her oath of office.
He argued that the Acting Chief Justice of Nigeria can only take the oath of office after the appointment has been ratified by the Senate and that the oath should be taken once.
His exact words: “First of all, once the Chief Justice attains the age of 70, he or she proceeds to retirement immediately. The next most senior Justice takes over in an acting capacity and is sworn in after confirmation.
“Swearing in means you are now formally recognized as the Chief Justice of Nigeria prior to your acting. Now, we have gone around it in an absurd manner and swore her in without confirmation. But, she still wears the title Acting.
“The point is that when she is actually confirmed, you are going to swear her in the second time. That doesn’t make sense,” he had added.
Between August 25, 2024 when Donald Duke spoke on the matter and now, the legality of the swearing-in of the Acting Chief Justice of Nigeria, Justice Kekere-Ekun by President Tinubu has been subjected to hot debate.
But dousing the tension created by the position of the ex-governor, a former Attorney-General of Abia State, Prof Awa Kalu, SAN and an Imo-based member of the inner bar, Chief Mike Ahamba, SAN said the lawyer-ex-governor appeared confused.
According to Prof Awa Kalu, SAN, Duke should not just have stopped at saying that the oath of office administered on the Acting CJN, Justice Kekere-Ekun was unnecessary until the confirmation of the senate, he should have given President Tinubu an alternative of what to do in the circumstance.
“This your lawyer former governor, what did he suggest as alternative for Tinubu? Ariwoola was going. The senate was on recess and the Supreme Court was without a leader and you must not leave any vacuum. That is the summary of what happened.
“You need to swear in the next most senior justice of the court. Justice Kekere-Ekun who is the next most senior Justice of the Supreme Court after Justice Ariwoola has been recommended by the NJC which makes her appointable at the time. And so, the President does the appointment and he chose to swear her in as an acting CJN. When the senate resumes, it would confirm her.
“This has happened at different times and levels of the judicature. Must we have controversy at all times?
“Nature abhors vacuum. Had the present Chief Justice not been sworn-in, the Supreme Court would have been leaderless. So, in order to avoid a situation where the highest court of the land is without a leader, the president swore in an acting CJN.
“I personally feel that there is nothing wrong in it. You can not act in any office in acting capacity without being sworn in. It is the executive who appointed you that can swear you in. In this case, the Mr President,” he added.
Corroborating what Prof Kalu, SAN had said, Chief Ahamba, SAN said: “Justice Kudirat Kekere-Ekun was sworn in as acting Chief Justice of Nigeria. Before anybody can perform such a judicial function, the person must be sworn in. How do you appoint somebody to perform functions that require oath without swearing in the person?
“I don’t see anything wrong with what has happened. When you swear-in somebody in acting capacity, the person will be there for three months maximum. If the senate confirms the CJN before the three months elapse, she will take a fresh oath of office as substantive CJN.
“There is no way the acting CJN will assume the functions of his or her office without taking the oath of office. The holder of the office will have to take another one when he becomes the substantive CJN.
“As far as I am concerned, he is not taking the oath of office twice as being insinuated by the ex-governor.
“Some of these people who are lawyers but who never practice law should leave legal matters alone,” Chief Ahamba, SAN added.
Similarly, an elder statesman and respected member of the inner bar, Chief Robert Clarke, SAN has also said that President Bola Tinubu’s swearing-in of Justice Kudirat Kekere-Ekun as the acting Chief Justice of Nigeria was and remains constitutional and legal.
According to him, Tinubu was right to swear in Kekere-Ekun as the acting CJN without being screened by the Senate, adding that the action did not infringe the constitution.
Clark further explained that the Constitution did not specify the time for confirmation of the acting Chief Justice, adding that her swearing-in is legal.
“There is no impediment to any constitutional provisions that say a CJ cannot be sworn in by the president.
“After all, the president is the appointing officer. Under the constitution, the president is the appointing officer. The Senate is only to confirm or reject.
“And if they reject, it will still take another term. She will be brought back. So, I don’t see any fundamental infringement of the Constitution.
“So, if the President appoints someone who has the right under the law to do so, the confirmation can come two months or three months later. So, there’s nothing wrong with that. It has nothing to do with the appointment.
“If the Senate is not ready to confirm, then, it will give reasons, and those reasons will be looked into. But its duty is only to confirm. So, that’s why I said it’s semantics. It doesn’t touch any legality or illegality,” he added.
Meanwhile, the senate had also queued behind President Bola Tinubu on the swearing-in of Justice Kekere-Ekun.
The Chairman, Senate Committee on Judiciary, Human Rights and Legal Matters, Senator Adeniyi Adegbonmire, had dismissed the position maintained by Duke on the matter, saying “An acting CJN can only act for three months.
“A substantive CJN occupies the office beyond that period and until he retires or is removed in accordance with the provisions of the constitution
“Please, Donald Duke doesn’t know what he is talking about. People don’t take the time to understand an issue before passing comments,” he said.
Vanguard
