One CJN, Two Oaths?

INTRODUCTION

In a historic moment that has echoed through the corridors of Nigeria’s judicial history, President Bola Tinubu, on Friday the 23rd of August 2024, administered the oath of office to Justice Kudirat Kekere-Ekun as the Acting Chief Justice of Nigeria (CJN). This significant ceremony, held at the Council Chamber of the State House in Abuja, not only marks the ascension of the 23rd Chief Justice of Nigeria, but also highlights a momentous achievement for gender representation in the nation’s judiciary. Justice Kekere-Ekun, now the second woman ever to hold the highest judicial office in the country, the first was Justice Aloma Mariam Mukhtar (2012-2014), steps into a role that carries the weight of precedents and the promise of progress. However, her appointment and subsequent swearing-in has ignited heated debate and generated a national ruckus on the legality and necessity of administering an oath of office to an Acting CJN.

The discussion revolves around the interpretation of the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended), particularly Sections 231(1), 231(4), 231(5), 290 (1) and 318; the Oaths Act, the Interpretation Act, and the implications of these laws on the process of appointing an Acting CJN.

ABSTRACT

This analysis seeks to interrogate and explore the legal provisions governing the appointment of the CJN, the distinction between a substantive and acting CJN, and whether the Constitution and other relevant laws mandate the swearing-in of an Acting CJN, rather than a substantive CJN.

ANALYSIS OF CONSTITUTIONAL PROVISIONS

The Appointment Process under Section 231(1) of the Constitution

Section 231(1) of the 1999 Constitution provides a detailed procedure for appointing the substantive Chief Justice of Nigeria. By this section, the President of Nigeria is vested with powers to appoint a person to the office of the CJN on the recommendation of the National Judicial Council (NJC). However, this appointment is subject to confirmation by the Senate. This tripartite process involving the NJC, the President, and the Senate, ensures a system of checks and balances that guards against executive overreach, legislative tyranny, thus preserving the independence of the Judiciary.

The mandatory nature of Senate confirmation under Section 231(1) is crucial to the legitimacy of the appointment process. It ensures that the most senior and competent judicial officer is appointed to lead the judiciary at such moments, reflecting the collaborative effort of the executive and legislative arms of government. This process emphasises the indispensability of Senate’s involvement in the appointment of the CJN, thereby reinforcing the constitutional principle of separation of powers; a doctrine popularised in 1748 by the great French philosopher, Baron de Montesquieu.

Provisions relating to an Acting CJN under Section 231(4) of the Constitution

In contrast to the appointment of a substantive CJN under Section 231(1), Section 231(4), addresses the procedure for appointing an Acting CJN. This section empowers the President to appoint the most senior Justice of the Supreme Court to perform the functions of the CJN if the office becomes vacant, or if the holder of the office for any reason is unable to perform the functions of the office. Unlike Section 231(1), Section 231(4) does not explicitly require Senate confirmation for the appointment of an Acting CJN.

The purpose of Section 231(4) therefore is to ensure that there is no vacuum in the leadership of the judiciary, as nature abhors vacuum. This provision addresses the exigency of peculiar circumstances where the office of the CJN becomes vacant, or where the CJN is unable to perform his duties. By allowing the President to appoint the most senior Justice as Acting CJN without requiring Senate confirmation, the Constitution no doubt aims to provide a swift and efficient mechanism devoid of officialdom or bureaucratic red-tapism so as to maintain the continuity of judicial functions.

Limitation on the Tenure of an Acting CJN under Section 231(5) of the Constitution

Section 231(5) of the Constitution however introduces a limitation on the tenure of an Acting CJN, stipulating that the appointment shall only be made once and shall not exceed three months. This provision serves as a safeguard against abuse of the President’s power to appoint an Acting CJN who will act forever. It ensures that the appointment in acting capacity being only stop-gap, interim and temporary, necessitates the timely appointment of a substantive CJN through the due and proper constitutional process.

The limitation on the tenure of an Acting CJN also emphasises the temporary nature of the appointment. It prevents the prolonged occupancy of the office by an Acting CJN, which could undermine the stability and independence of the judiciary; and raise curious glances amongst the citizens. The requirement for a mandatory substantive appointment after only three months reflects the Constitution’s intent to have a permanent and duly confirmed head of the judiciary.

The Mandatory Oath-Taking Requirement under Section 290 (1) of the Constitution

Section 290 (1) of the 1999 Constitution provides that any person appointed to a judicial office shall not begin to perform the functions of that office until he has taken and subscribed to the oath of allegiance and the judicial oath prescribed in the Seventh Schedule of the Constitution. This provision highlights the mandatory constitutional requirement that the assumption of judicial duties is contingent upon the formal swearing of these two oaths. It is compulsory.

The primary purpose of Section 290(1) is to ensure that every judicial officer formally commits to upholding the Constitution and administering justice with integrity and impartiality, and without fear or Favour before undertaking the huge responsibilities associated with that office. The two oaths thus serve as a binding commitment to the ethical and legal standards required for the fair and effective administration of justice.

In the context of the appointment of an Acting CJN Section 290 (1) clearly establishes that the appointed individual must take the oaths of office before he can lawfully perform any duties associated with the role. This requirement applies irrespective of whether the appointment is permanent or temporary, thus emphasising the constitutional necessity of oath-taking as a precondition or condition precedent for exercising judicial authority.

The provision thus ensures that the Acting CJN, like any other judicial officer, is constitutionally bound to perform his duties within the framework of the law and with a solemn commitment to do justice. The oath-taking is not mere formalities or ceremonial ritual, but a constitutional imperative that legitimises such role and authority to act in the capacity of the Chief Justice of Nigeria.

Interpretation of Section 318 and the Application of the Interpretation Act

Section 318 of the Constitution, particularly subsections (3) and (4), provides definitions and interpretative guidance for the provisions of the Constitution. According to Section 318 (3), any reference to the holder of an office shall be construed to include a reference to a person acting in that office. This interpretative provision thus extends the meaning of “CJN” to include an “Acting CJN”.

THE INTERPRETATION ACT

Section 11(1) of the Interpretation Act of 2004, made applicable by Section 318 (4) of the Constitution, further supports this interpretation. It provides that where a law requires or permits the holder of an office to do any act or thing, it shall be construed to include a reference to the person for the time being acting in that office. Consequently, the legal framework recognises the Acting CJN as holding the same office as the substantive CJN for the duration of the acting appointment.

An Acting CJN May Take The Oaths

The clear implication of this interpretation is that an Acting CJN, by virtue of holding the office temporarily, and performing its duties, can be sworn in and administered the oath of office in the same manner as a substantive CJN. This interpretation aligns with the constitutional aim of ensuring the continuous and effective functioning of the judiciary, even during periods of transition when there is no substantive CJN.

The Argument Against Swearing-in an Acting CJN: The Oaths Act

Opponents of swearing-in an Acting CJN argue that it is unnecessary and potentially problematic, particularly given the temporary nature of such appointment. They contend that the administration of the oath of office should only be reserved for the substantive CJN whose appointment has been confirmed by the Senate. In their view, swearing-in an Acting CJN may create the perception that the acting appointment is equivalent to a substantive appointment which could undermine the importance of Senate confirmation. They find solace in the provisions of Section 3 (2) of the Oaths Act, 2004, which provides that a person appointed to act in any office or capacity in the place of another officer or person, shall not be required to take an oath on the occasion of such an appointment unless the required oath is different from, or in addition to any oath already taken by that person in respect of any other appointment, whether permanent or temporary.

In relation to the swearing-in of an Acting Chief Justice of Nigeria (CJN), this provision is particularly relevant. The essence of Section 3 (2) of the Oaths Act suggests that if the Acting CJN had previously taken an oath for another judicial role, (Justice of the Supreme Court) and if the nature of that oath is sufficient to cover the responsibilities of the Acting CJN position, there may be no legal necessity for a new oath to be administered. This perspective aligns with the argument that swearing-in an Acting CJN might be seen as otiose, superfluous, and redundant, especially considering the temporary nature of the role and the absence of a specific constitutional mandate requiring such an oath.

Furthermore, such critics argue that merely issuing an appointment letter to the Acting CJN without swearing him in would suffice to enable the Acting CJN perform the functions of the office. They argue that the formal swearing-in ceremony should be deferred till after the Senate confirms the appointment at which point the CJN can be properly and permanently sworn in.

This perspective is rooted in the belief that the Constitution’s silence on the requirement of an oath for an Acting CJN implies that such a ceremony is not necessary: “Exprssio unius est exclusio alterius- The expression of one thing is the exclusion of the other”. The temporary nature of the acting appointment, coupled with the constitutional limitation on the tenure of an Acting CJN, therefore suggests that the acting role should be viewed as a provisional measure distinct from the permanent appointment of a substantive CJN, they posit.

THE ARGUMENT IN FAVOUR OF SWEARING-IN AN ACTING CJN

Proponents of swearing-in an Acting CJN (and I belong to this school) argue that the administration of the oath of office is necessary to legitimise the appointment and empower the Acting CJN to perform the functions of the office. They contend that since the Constitution recognises the Acting CJN as holding the office of the CJN (as interpreted by Section 318 of the 1999 Constitution, and the Interpretation Act of 2004), it is both legal and appropriate for the Acting CJN to take the oath of office.

The oath of office serves as a formal affirmation of the Acting CJN’s commitment to uphold the Constitution, administer justice without fear or Favour, and perform the duties of the office with integrity and impartiality. Administering the oath to an Acting CJN ensures continuity in the administration of justice and affirms the Acting CJN’s authority to carry out the functions of that office during the interim period.

Furthermore, swearing-in an Acting CJN provides clarity and certainty regarding the leadership of the judiciary. It signals to members of the apex court itself, the public, the legal community and other branches of government, that the judiciary is under the competent leadership of a duly appointed judicial officer, albeit in an acting capacity. This oils the wheels of stability and continuity of the judicial system, particularly during periods of transition.

Not to administer such an oath on an Acting CJN (who constitutionally performs all functions of the substantive CJN) is to allow an unsworn occupant to carry on such solemn functions. This certainty undermines the status of the office, casts doubt in the minds of members of the public as to the status, expected impartiality and solemnity of the Acting CJN.

Consequently, I humbly submit that the oath administered to Justice Kekere-Ekun as Acting CJN is proper, legal and legitimate, even if it is otiose.

LEGAL PRECEDENTS AND COMPARATIVE ANALYSIS

Legal precedents and practices affirming my contention that swearing-in an Acting CJN is appropriate and proper can be extrapolated jurisdictions which provide us with insight into the necessity of swearing-in an Acting CJN. In several common law jurisdictions, the swearing-in of acting judicial officers, including acting Chief Justices, is a recognised convention and practice. The purpose of such a ceremony is to formalise the temporary appointment and affirm the acting officer’s authority to perform the duties of the office.

In Nigeria, past instances of appointing Acting CJNs have varied in practice. Some Acting CJNs have been sworn-in, while others have assumed office without a formal swearing-in ceremony. This inconsistency reflects the lack of a clear constitutional mandate on the issue, leaving room for differing interpretations and practices.

Comparatively, in countries such as the United States of America, the Chief Justice of the Supreme Court is not typically sworn-in for an acting appointment. Instead, the most senior Associate Justice performs the duties of the Chief Justice during periods of transition, without the need for a formal swearing-in. This approach emphasises the temporary and provisional nature of the acting role, distinguishing it from the permanent appointment of the Chief Justice.

THE VEXED QUESTION ON THE NECESSITY AND LEGALITY OF SWEARING-IN AN ACTING CJN

The principle of strict adherence to statutory procedures is a well-established doctrine in legal interpretation and judicial precedent in Nigeria. It states that when a statute prescribes a particular method for accomplishing a task, that method alone must be followed, and any deviation renders the action a nullity. This principle, succinctly articulated in Cross River University of Technology v. Obeten (2011) LPELR-4007-CA, is especially significant in the context of public office, including the Chief Justice of Nigeria (CJN). Whether the CJN is in a substantive or acting capacity, this principle demands compliance with all procedural requirements, including the administration of the oath of office. The necessity for the CJN, even in an acting capacity, to take an oath of office is an extension of this legal doctrine, reflecting the broader framework of constitutional law that governs the assumption of public office in Nigeria.

At the heart of this discussion lies the question: must an acting CJN take an oath of office before assuming the responsibilities and functions of that position? The Constitution of Nigeria explicitly requires substantive officeholders, such as the CJN, to take an oath of office. However, the Constitution is not as clear when it comes to the requirements for an acting CJN. This has led to some ambiguity regarding whether the oath-taking process is necessary for an acting CJN, or whether it applies only to substantive officeholders. This issue is critical because the office of the CJN is pivotal to the administration of justice and the functioning of Nigeria’s judiciary. Without a clear legal foundation, the legitimacy of the officeholder and the decisions made during their tenure could be called into question.

The Constitution of Nigeria, like many constitutions worldwide, provides a detailed framework for the swearing-in of public officials. The purpose of the oath of office is to ensure that the individual appointed to the office publicly affirms his/her commitment to uphold the Constitution and to discharge his/her duties faithfully. This constitutional safeguard is not merely ceremonial but serves as a critical step in validating the officeholder’s authority. The officeholder must subscribe to the oath of office before assuming the legal and administrative powers associated with the role.

Section 254 (1) of the 1979 Constitution, as referenced in the case of PDP & Anor v. INEC & Ors (1999) LPELR-24856(SC), establishes that public officers, including justices of the Supreme Court, must subscribe to the oath of office before they can lawfully execute the functions of their office. This provision has been interpreted to mean that without the proper administration of the oath, the officeholder is effectively ineligible to perform his/her duties, even if duly appointed or elected.

Furthermore, the court ruled in this matter that elected officials, such as Governors and Deputy Governors, are not considered to have assumed office until they have complied with the constitutionally mandated oath-taking ceremony. This decision set an important precedent, making it clear that the assumption of office, in legal terms, is contingent on the fulfilment of all statutory requirements, including the administration of the oath.

In the context of the CJN, this principle assumes even greater importance. The CJN is not only the head of the judiciary, but also holds a position of immense legal and symbolic significance within the Nigerian constitutional framework. The CJN presides over the Supreme Court and is responsible for the overall administration of justice in the country. Given the critical nature of this role, any ambiguity regarding the legal status of the CJN, whether substantive or acting, could have far-reaching consequences for the judiciary and the rule of law in Nigeria.

The office of the CJN is constitutionally protected, and the process of appointing and swearing-in the CJN is detailed in the Constitution. A substantive CJN is required to take an oath of office before assuming the position, as prescribed in the Constitution. The oath serves as a public declaration of the CJN’s commitment to uphold the Constitution and the laws of the country, as well as to discharge the duties of the office with integrity and impartiality. The Constitution’s focus on the oath of office underscores the importance of this procedural requirement in validating the authority of the CJN.

However, the situation becomes less clear when it comes to the appointment of an acting CJN. The Constitution does not specifically mandate that an acting CJN must take an oath of office, which has led to some debate about whether the oath-taking requirement applies in such cases. Despite this ambiguity, legal precedent and the principles of statutory interpretation suggest that the oath of office should apply to an acting CJN as well. This argument is grounded in the principle that any deviation from the prescribed legal procedures is a nullity, as established in Cross River University of Technology v. Obeten (Supra).

CONCLUSION

In Our Line Ltd v. SCC (Nig) Ltd & Ors (2009) LPELR-2833(SC), the Supreme Court reiterated that a person appointed to any judicial office cannot perform the functions of that office until they have taken and subscribed to the required oaths of allegiance and office. The court’s decision in this case emphasises the importance of the oath-taking process in conferring the legal authority necessary to execute the duties of a judicial office. This principle applies not only to justices of the Supreme Court but also to the CJN, whether in a substantive or acting capacity. Without the administration of the oath, the individual appointed to the office remains incapable of exercising the powers and responsibilities associated with the position.

The need for an acting CJN to take an oath of office can be further understood in light of the broader constitutional principles governing public office in Nigeria. The Constitution’s primary concern is to prevent a vacuum in key public offices, including the judiciary. The position of the CJN is of such critical importance that any ambiguity or uncertainty regarding the legitimacy of the officeholder could undermine the authority of the judiciary and the rule of law. By requiring the acting CJN to take an oath of office, the appointing authority ensures that the acting CJN has the legal and moral authority to perform their duties and make decisions that carry the full weight of the law.

While it is true that the Constitution does not explicitly require an acting CJN to take an oath of office, the absence of such a requirement does not mean that the oath-taking process is unnecessary. In fact, the administration of the oath provides clarity, authority, and legitimacy to the acting CJN’s role. It ensures continuity in the leadership of the judiciary and reinforces the acting CJN’s commitment to upholding the Constitution and the laws of the land. In this sense, the oath of office serves as a safeguard against any potential challenges to the acting CJN’s legitimacy or authority.

Furthermore, the requirement for an acting CJN to take an oath of office aligns with the principles of good governance and the rule of law. The oath of office is a public affirmation of the officeholder’s commitment to the Constitution, and it serves as a reminder of the responsibilities and ethical standards associated with the position. By taking the oath, the acting CJN acknowledges their duty to administer justice impartially and without favor, and to uphold the rule of law in the exercise of their judicial functions.

Ultimately, the necessity for the CJN, even in an acting capacity, to take an oath of office is rooted in the broader constitutional and legal framework that governs the assumption of public office in Nigeria. While the Constitution may not explicitly mandate the oath-taking process for an acting CJN, legal precedent, statutory interpretation, and the principles of good governance all support the requirement for the oath. The administration of the oath ensures the legitimacy and authority of the acting CJN, reinforces the rule of law, and provides continuity in the leadership of the judiciary. As such, the acting CJN must subscribe to the oath of office to lawfully and effectively perform the duties of the office. Any deviation from this procedural requirement would render the actions of the acting CJN a nullity, in accordance with the legal doctrine established in Cross River University of Technology v. Obeten (Supra). Thus, the requirement for an acting CJN to take an oath of office is not merely a formality, but a legal necessity that upholds the integrity of the judicial system and ensures the proper functioning of the judiciary in Nigeria.

Mike Ozekhome, senior advocate of Nigeria (SAN) is a Professor of Constitutional Law