27 Feb 2008 |
|
Why Yar'Adua can't win THE Constitution of the Federal Republic requires the president of Nigeria upon the recommendation of the National Judicial Commission to forward the names of Supreme Court nominees to the Senate for confirmation. As it turns out, Justice Ogebe who happens to be presiding judge on the presidential elections tribunal was nominated by the NJC in 2007 for appointment to the Supreme Court. However, when his name was formally forwarded by the executive to the Senate for confirmation, conspiracy theorists went agog, as is often the case in Nigeria, with all sorts of puerile and preposterous innuendo. Even one or two lawyers who should know better, in an effort to play to the gallery of their political clientele have made remarks totally unsubstantiated by the law or the facts. The truth is that the two judges, Ogebe JCA and Coomasie JCA were nominated not by Umaru Yar'Adua but by a group of judges of the Supreme Court and esteemed members of the Nigerian Bar Association. However, by reason of a redundant provision in the constitution, the NJC has to send the nominees to the Chief Justice of Nigeria, who then sends the names to the president who in turn sends the names to the president of the Senate for confirmation. Thus the function of the president in the whole process is no more than an executive courier - a postman. All he is required to do is collect the letter from the CJN and forward it to the president of the Senate. The real duty of assent lies with the Senate not with the executive. The beauty of the Nigerian system over the U.S. with respect to judicial nominations is that it is purely apolitical process. While the U.S. president can pick whomever he wants, as George Bush did when he forwarded his personal lawyer for confirmation, in Nigeria it is actually members of the legal profession and fellow jurists that make the selection thus maintaining professionalism, decorum and merit in the process. Conversely, in America judicial confirmations are tawdry, rancorous and downright unseemly. The problem with the Nigerian appointment process though is that for some reason, although the president has no role in the selection, he is required to send it forward to the Senate. This situation calls for constitutional amendment because it adds an unnecessary layer of bureaucracy and avoidable politicisation to the process in a clime prone to such. Indeed it is a stark abuse of the concept of separation of powers because the judiciary is being subjected to dual exposure by both of the other arms of government who are both political whereas it is apolitical. The democratic dispensation is very different from the military one where the Armed Forces Ruling Council as the executive arm, in the absence of a legislature, simply appointed justices upon reviewing the recommendations of the NJC. In the past, a meddlesome democratic executive has been known to refuse to forward the names from CJN to Senate President and actually returned to sender repeatedly until the NJC amended the list of nominees. This is clearly an abuse of office as nowhere is the president given powers under our laws to place a demand on the NJC in appointing judges. At worst, a president withholding the names of nominees from confirmation consideration is tantamount to the withholding of Lagos local government funds after a Supreme Court pronouncement. It is disrespect for due process. The most, a president can do, it is respectfully submitted, is to like any ordinary person raise whatever security report objection they have at the Senate hearing. This is where checks and balances come into play. Thus the judge nominee will have a fair hearing which he himself as a dispenser of same is entitled to. Therefore Yar'Adua was entitled to, indeed, duty-bound to follow due process and forward the names on. If anything, he can be blamed for not acting expeditiously in sending the name forward when the justices were nominated in October last year. Once again his go-slowship has constituted itself into a noisome nuisance. But the fact of the matter is, whether he had forwarded the names before or after the judgment, our conspiracy-theory-loving compatriots would, if it turned out his way, say it was a reward or even on the other hand that they were trying to get rid of the judge because he was going to rule against them. It is one of those moments of which it can truly be said that you are damned if you do, damned if you don't! This is why Yar'Adua cannot win on the issue of this nomination. Whether he forwarded the names before or after, someone would complain. It is a no win situation until our citizens are better enlightened or the constitution is amended. Recently, Yar'Adua conferred on the Chief Justice of Nigeria, Justice Kutigi, upon the recommendation of the National Council of State, a National Honours Award. This is at a time the Supreme Court itself has reserved judgment on one of the election petitions filed against President Yar'Adua. Is there any right-thinking person who for a moment would allege that the presidential award is a means of inducing the Supreme Court over the very same presidential election petition now on appeal before them? Incidentally, the Supreme has six cases challenging Yar'Adua's election before it while the Court of Appeal has just two!
|
# 
Your Comments
Please make The Square an enjoyable experience for everyone by refraining from gratuitous ad-hominem contributions, defamatory comments and off-topic posting. Such posts will be removed.