Nigeria's new chief justice of the Supreme Court, Aloysius Katsina-Alu has been sworn in today by out-going Justice Idris Legbo Kutiji in the absence of President Umaru Yar'Adua, who is in hospital in Saudi Arabia with a heart condition.  While this could be legal under the Oaths Act, the political implication is that Yar'adua is now unable or incapacitated to perform his function and therefore should step aside.

The provision of Section 231(1) of our Constitution makes it mandatory for the President to appoint the Chief Justice of Nigeria subject to confirmation of the Senate.

Pursuant to the above provision the new Chief Justice of Nigeria has been duly appointed and recently confirmed and waiting for taking the oath of office upon the retirement of the present Chief Justice of Nigeria who is due to retire very soon.

This Oath of office provided in the 7th Schedule of the Constitution is an oath or affirmation of the new Chief Justice of Nigeria which he must take before undertaking or assuming the duties of the office this oath of office is different from the one stipulated in the Oath Act of the Laws of the Laws of the Federal Republic of Nigeria.

Although unlike where the Constitution stipulates that the Chief Justice of Nigeria shall administer such oaths on the President during the President’s inauguration, our Constitution did not make such provision for the President or any other person to administer oath on the new Chief Justice, however, the President by age long practice, conventions and protocol vis-à-vis administer such oath on the new Chief Justice during a public ceremony.

However, upon consideration of recent developments bothering on the state of health of President Yar’Adua who for the past 24 day is perpetually staying in an unknown hibernaculum there has been apprehension of the occurrence of constitutional crisis during the inauguration of the new Chief Justice as the President who by convention is to administer the oath is indisposed and very glaring is the fact that the confirmation of the President appointment of the new Chief Justice has not been received by the President who is presently indisposed.

Being indisposed the consequent constitution provision of Section 145 is yet to be activated, the provision of Section 145 of the Constitution which states:

“Whenever the President transmits to the President of the Senate and the Speaker of the House of Representative a written declaration the he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice-President as Acting President.”

According to Kayode Ajulo, a prominent lawyer in Nigeria, the jurisprudence of construction of constitution forbids interpretation from a narrow perspective but advance understanding of constitution from the entire intent of the maker.

“The makers of our constitution cannot mean that we should have president in Diaspora who should be ruling from abroad and should be abdicating his constitutional and expected duties and functions, particularly an all important appointment and inauguration of the Chief Justice of Nigeria”.

So, is the outgoing Chief Justice of the Federation, Justice Idris Kutigi, right swearing in his designated successor, Justice Aloysius Katsina-Alu?

The point must be made that the failure of Yar’Adua to write to the National Assembly has created a lot of legal hurdles for key decisions, including assent to the 2009 Supplementary Budget and the swearing-in of the new CJN

Although the Constitution is silent on whether it is mandatory for the President to administer oath of office on the new Chief Justice, by practice, precedents and conventions which form part of our law, the swearing in of the new Chief Justice by the President is obligatory and sacrosanct.

It is therefore expected that to avoid any probable predicament the President if he found himself indisposed should activate the provision of Section 145 to pave way for the emergence of duly appointed Acting-President or the Federal Executive Council to activate Section 144 of the Constitution to pave way for the new President that will steer the ship of the Nation in accordance with the Constitution of Federal Republic of Nigeria.

However, The Oath's Act of 1990 provides in the second schedule the range of public officers that are required to take oath, nature of oaths and the corresponding public officials to administer the oaths. For instance, the Chief Justice of the Federation is required by that law to take oath of allegiance, to be administered by either the President of Nigeria OR the Chief Justice of Nigeria.

The Attorney-General of the Federation and Minister of Justice, Michael Aondoakaa thus said the outgoing Chief Justice of Nigeria (CJN), Justice Idris Kutigi, is right to swear  in his successor, Justice Aloysius Iyorgyer Katsina-Alu today. Kutigi is due for retirement on December 31.

Is he correct?

As noted, The Oath's Act of 1990 provides in the second schedule that the oath of office could be administered by either the President of Nigeria or the Chief Justice of Nigeria. So is Aondoakaa correct?

According to Chijioke Udeogu, a Nigerian Lawyer, The AG Michael Aondoakaa is merely applying a literal interpretation of the Oath's Act but He is wrong if we interpret OR as meaning ‘in the absence of the President’.

We could validly argue that the constitution does not explicitly say the president alone should swear in the CJ nor does it say who should do the swearing in? That lacuna is filled by the Oaths Act, 2004

The Oath's Act is supposed to be a secondment to the constitutional role. Thus the law (a combined reading of the Constitution and Oath's Act) presupposes that in the appointment and swearing of a new CJN, the president that appoints the CJN finishes up what he has started.

We could then also validly assert that The Oaths’ Act vests the swearing duty in this instance on the president by tradition. But in his absence, a current CJN could swear in an incoming one. The CJN option is thus a distant possibility.

Look at this scenario: Assuming the CJN is dead and a new CJN is to be sworn in, who does that? The president

If a CJN is dead, obviously acting CJN is appointed. Then, in the event that a substantive CJN is to be sworn, is it the acting CJN that should swear him in? Not necessarily

So what we are angry at is this: Does it mean that Yar'adua is now incapacitated not to perform his function again? If yes, let him notify the National assembly so that the VP could assume those functions. It is barbaric though legal that we have VP who should be discharging the functions of the President and yet the CJN is performing a function that he should be doing.

It is a grotesque distortion of the law. They are looking at ways to prevent Jonathan Goodluck from assuming the reigns of governance. Yes, the Oath's Act permits the CJN to swear in another CJN but in the absence of the president. Is the president absent? Is the VP no more part of the president?

In the words of the NBA President, Mr. Rotimi Akeredolu (SAN); “In any case, three processes are involved in this matter. The CJN-designate must first of all be appointed by the President, who will thereafter send his name to the Senate for confirmation. After the necessary confirmation, the President will now issue a letter of appointment preceding the inauguration. It is after these processes that the CJN- designate will now be inaugurated by the President.

“Does the President issue the letter from Saudi Arabia? It is only the President that can inaugurate the CJN.”

In an editorial, THE NATION says: From the look of things, and we pray it does not come to that, it seems the judiciary is the first casualty of the contrived gridlock and immobility spurned by President Yar’adua’s prolonged absence. This is more regrettable because the leadership of the judiciary willingly dragged the institution into an avoidable crisis.

But the issue, strictly speaking, is not about swearing-in of a CJN, but ostrich playing by a power cabal that has decided to hold the nation by the jugular. It is the deliberate foisting of a lie on a nation in the vain hope that assiduous building on a foundation of lie would produce a house of truth. There was no handing over to a successor, even in acting capacity.

The constitution has designated the Vice President the president in waiting, yet he cannot assume this power without a legal instrument empowering him to do so. Deliberate withholding this power from him amounts to dangerously taking the nation to the brink. This is not fair to Jonathan.

This is not fair to Nigeria or the spirit of the constitution. It is power flexing, barbaric style. But the doomsday can still be averted if power is properly transmitted to him. Until this is done, all the institutions of state, one after the other, are going to be on the firing line and nobody can predict what will stand or what will endure.

The capitulation of the judiciary is definitely a bad omen.

Conclusion

We should look at the consequences of Yar'adua's absence and failure to perform his presidential functions; the political consequences of the CJN swearing a new CJN while the president is still alive and where a VP has been acting in his stead, albeit without following the constitutional procedure.

Unknown to Aondoakaa, the implication of his position is that President Yar’adua is either absent (thus necessitating the invocation of Section 145) or incapacitated (necessitating the invocation of Section144)!

What Aondoakaa is in effect telling us is that Yar'adua is now unable or incapacitated to perform his function and therefore should step aside!