EXPLAINER: Did President Tinubu avert a constitutional crisis by returning from France to preside over the swearing-in of the new CJN?

By Kunle Sanni in Abuja

The office of the Chief Justice of Nigeria (CJN) is an important one. Apart from being the head of the judiciary in the country and Chairman of the National Judicial Council, the CJN is the fifth citizen in Nigeria. In the absence of the President, Vice President, Senate President, and the Speaker of the House of Representatives, the CJN, as the next most senior citizen, would automatically assume the mantle of leadership of the country. The swearing-in of a CJN is traditionally presided over by the President. But did President Bola Tinubu, who traveled to France on Monday, August 19, 2024, and cut his trip short two days later to return to the country to preside over the swearing-in of the new CJN, Justice Kudirat Kekere-Ekun, avert any constitutional crisis that may have been created had he not returned? The tenure of former CJN Justice Olukayode Ariwoola formally expired on Thursday, August 22, and a new acting CJN had to be in place by the next day.

The answer is an emphatic no! This is because, in the absence of President Tinubu, Vice President Kashim Shettima could perform the responsibility. However, by his action, President Tinubu has demonstrated utmost respect for the constitution and for the judiciary as an important arm of government. He has also shown his commitment to the country and to democratic good governance. For him, the swearing-in of a new CJN is not just a constitutional duty, but also a historic responsibility. Justice Kekere-Ekun is the 23rd CJN and the second woman in the country to occupy that exalted position after Justice Maryam Aloma Mukhtar, who was inaugurated by former President Goodluck Ebele Jonathan on July 16, 2012.

Before the important ceremony of the swearing-in of Justice Kekere-Ekun on Friday, August 23, 2024, at the Council Chambers of the Presidential Villa, Abuja, the country had experienced several near constitutional crises over the appointment of a new CJN, which were fortunately averted.

Below is a list of these distressing incidents that almost drove the country to a constitutional crisis:

In late December 2009, President Umaru Musa Yar’Adua was seriously ill and out of the country for treatment, but he had left without transferring power to his then-deputy, Goodluck Jonathan. Meanwhile, the tenure of the then-CJN was about to expire. The nation was on tenterhooks over the matter, and a constitutional crisis was looming. There were divergent views on what would happen at the expiration of then-CJN Justice Idris Kutigi’s tenure. There were fears that Nigeria would be without a CJN. However, Justice Kutigi rose to the occasion and took the bold decision to swear in his own successor, the late Justice Aloysius Katsina-Alu, as CJN on December 30, 2009. By so doing, he became the first and only CJN to swear in his successor in Nigeria’s history.

Importantly, there is also the case of then-Acting President Professor Yemi Osinbajo, who presided over the swearing-in of Justice Walter Onnoghen as the 17th CJN on March 7, 2017, in the absence of then-President Muhammadu Buhari, who was away on medical grounds.

Perhaps the most controversial action, which many feared could have led to a major crisis, was the suspension of the same CJN, Walter Onnoghen, from office by then-President Buhari. President Buhari suspended Justice Onnoghen and swore in Justice Tanko Muhammad as the acting CJN on January 25, 2019. The then-president claimed he acted on an order from the Code of Conduct Tribunal (CCT). The CJN was brought before the CCT for not disclosing his assets, and Onnoghen later admitted this non-disclosure. However, President Buhari did not follow the constitutional provisions for the removal of the CJN. To many legal minds, the move cast doubts about the government’s commitment to the rule of law and raised concerns about the integrity of the then-upcoming elections on February 16, 2019. The Supreme Court, under the CJN, has original jurisdiction and the final say in matters relating to election petitions in a presidential election.

Indeed, there are two ways the CJN can be removed from office under the constitution. First, the president can remove the CJN after a request to that effect is made to the Senate and is supported by a two-thirds majority of the Senators. Second, the NJC can recommend to the president the removal of the CJN, after which the president can act on the request and remove him. President Buhari neither addressed the Senate nor received a two-thirds majority in favor of the CJN’s removal, nor did he receive a recommendation from the NJC that the CJN be removed. Meanwhile, the former CJN Onnoghen is still battling today to extricate himself from allegations of corruption and of breaching the provisions of the Code of Conduct Bureau.