230. (1) There shall be a Supreme Court of Nigeria.
(2) The Supreme Court of Nigeria shall consist of -

(a) the Chief Justice of Nigeria; and

(b) such number of Justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly.

231. (1) 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.

(2) The appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the National Judicial Council subject to confirmation of such appointment by the senate.

(3) A person shall not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years.

(4) 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 has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.


The above is the consitution in relation to the appointment of the CJN - Only the president can swear in CJN

@mikelagos

Most African constitutions are crap. Some of these clauses overlooked or missed all sorts of scenarios. They are just vague so even if you take the President to court you might not have a strong argument.

ml,

I have never read the Nigerian Constitution in its entirety not to speak of the constitution of other African countries. Therefore, I can't say that they are all crap. The problem with what Nigeria calls a constitution is that it is not a set of guiding principles. Rather, Nigeria’s constitution is a collage of statutory impositions.

No constitution in this world can ever anticipate every possible scenario. I think you may be confusing a constitution, which is a set of guiding principles with statutory laws, which are resulting from legislation. Many parts of the US constitution are vague. That's why American lawyers constantly argue over the "intent of the Founders of America." To keep up with contemporary times, the US legislature frequently update current laws or make new ones, and a scholarly US judiciary frequently adjudicate on the constitutionality of these laws.

It is the duty of the law makers in Nigeria to fill in gaps in the constitution.

The problem with Nigerian lawmakers is that they are lazy and unprincipled, and quite a few of them are functional illiterates. My understanding is that no new legislation had been passed into law this year in the national assembly. Is that correct, anyone?

**********************
**********************

Idris Kutigi, the retiring CJ says it is quite legal for the sitting CJ to swear-in his replacement. That's fine with me. But for a man of his legal stature not to cite a specific section of the constitution or a statue that validated his actions was contemptuous of the law of the land. Furthermore, the new CJ himself should have pointed to specific sections of the law that would make his swearing-in legal. And if there were none, he should have, in principle, declined to be sworn in by the outgoing CJ. That would have earned him instant legal gravitas and stamped him with a reputation as a principled jurist.

If a lower court should rule the swearing-in illegal until further judicial review, it would deal a blow to the credibility of the new CJ within the legal community. A principled jurist would see through this and decline to be drawn into the politics. I f he goes on to sit as the new CJ, there will always be an asterisk after his name.


Modification:

After reading the sections of the constitution that relate to this matter. I am inclined to say that the constitution does not specifically say that only the president can swear-in the CJ. The constitution only says who appoints the CJ and who confirms that appointment. So there is some ambiguity here for the legislature to clear by statue.

blacksta:

230. (1) There shall be a Supreme Court of Nigeria.
,

The above is the consitution in relation to the appointment of the CJN  - Only the president can swear in CJN

But appointment and swearing-in are not the same.

It seems that just as a good lawyer will exploit a hole in a law to his client's favor, the retiring CJ is exploiting the absence of a specific designee to swear-in the new CJ.

All the ruckus following this event may very well end up for naught.

Pifa:


But appointment and swearing-in are not the same.

I agree that swearing and appointment may mean two different things but i cannot find anywhere in the 99 constitution that caters for the swearing of CJN except judicial oath / but does not address whether the president has to be present or not


Judicial Oath

I, , do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as Chief Justice of Nigeria/Justice of the Supreme Court/President/Justice of the Court of Appeal/Chief Judge/Judge of the Federal High Corut/Chief Judge/Judge of the High Court of the Federal Capital Territory, Abuja/Chief Judge of , State/Judge of the High Court of , State/Grand Kadi/Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja/ Grand Kadi/Kadi of the Sharia Court of Appeal of , State/President/Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja/President/Judge of the Customary Court of Appeal of , State. I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law, that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official conduct or my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria

So help me God

blacksta:

I agree that swearing and appointment may mean two different things but i cannot find anywhere in the 99 constitution that caters for the swearing of CJN except judicial oath / but does not address whether the president has to be present or not

What might happen, I think, is that the court adjudicating the law suit brought by Falana (is that his name?) will say that since the constitution does not provide for judicial swearing-in ceremonies, the precedence of tradition will be supreme. And traditionally, the President had always sworn-in a new CJ. But in the absence of the president, the next office in line to the presidency will fulfill that CEREMONIAL duty. That means the VP, of course.

Most courts with a full load of serious cases will view that law suit by Falana as a nuisance. The court might dismiss the case and ask the VP to administer the oath again.

I, ,  do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; ,  that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria

So help me God

That oath is so f--king long, it is emblematic of the way things are done in Nigeria. Senselessly long!

Pifa:

It seems that just as a good lawyer will exploit a hole in a law to his client's favor, the retiring CJ is exploiting the absence of a specific designee to swear-in the new CJ.

All the ruckus following this event may very well end up for naught.

The whole World is reporting the appointment as 'illegal'. There's got to be a lot wrong with it considering the stance of senior legal experts; I posted this earlier

. . .
Not all Nigerian lawyers agree, saying only the president has such authority. The head of the Nigerian Bar Association and other high-ranking lawyers did not attend the ceremony.

"It is not legal," said Femi Falana, a leading human rights lawyer who has launched legal action to try to force Yar'Adua to hand executive powers to Jonathan while he is away.

Falana said Yar'Adua had sent the name of the new chief justice to the Senate for confirmation before leaving for Saudi Arabia but that he should then have written a formal letter of appointment once that confirmation was given.
. . .

http://uk.reuters.com/article/idUKLDE5BT0M420091230?sp=true

There will be trouble ahead.

What of if Mr Yaradua has delegate the swearing ceremony to Justice Kut~

TrueSeeker:

What of if Mr Yaradua has delegate the swearing ceremony to Justice Kut~

Yar Adua?! Is that a joke?

In any event, Femi Falana says Yar Adua did not even write a formal letter of appointment. . . _{There is something about our "president" and letters}
From Femi Falana's position, the selection has been okayed, but the new guy has not been appointed. So based on what was he sworn in?

Beaf:

The whole World is reporting the appointment as 'illegal'. . .

Beaf I don't disagree with your assessment. But the “whole world” sometimes report sensationalism. Maybe it’s because I’ve been out of Nigeria for so long that's clouding the seriousness with which I look at this issue.

What I know, so far, is that the constitution does not provide for swearing-in of this judicial appointee. In any civilized society, this will be much ado about nothing. But in Nigeria, everything is politicized. I am no fan of the Nigerian government. You probably saw what I wrote about the legislature earlier. But how hard is it to pass the swearing-in duty to the VP? After all, he is next in line to the presidency.

Swearing-in the CJ is not mandated by the constitution; taking the oath is. For all I care, any officer of justice can administer the oath. The important thing is for the appointee taking the oath to agree to be legally bound by it. I am willing to bet you that even after all the pomp and circumstance surrounding the oath, it was still not be legally binding until the CJ signed on the dotted line.

If you watched Obama’s inauguration last January, you would notice that even after the perfunctory “Congratulations Mr. President” and the playing of the “Hail to the Chief” by the US Marine band, Obama was ushered into a room in the US Capitol where he signed a few documents that made his presidency legally binding.

Beaf:


In any event, Femi Falana says Yar Adua did not even write a formal letter of appointment. . .

From Femi Falana's position, the selection has been okayed, but the new guy has not been appointed. So based on what was he sworn in?

Now, that is SERIOUS, as opposed to the swearing-in issue.

Guys, why are we looking for a crisis where there is none.
Yar'adua "appointed" the CJN, on the recommendation of the Judicial Council. He sent his name to the Senate. The Senate confirmed the "appointment." And the new CJN has sworn to an oath of allegiance. The constitution DOES not stipulate who should administer it. It seems that it is not important who does the administration. Rather it is the wording of the oath that matters. Please note that there is no where in the oath that the CJN will be loyal to the President; rather to the Federal Republic of Nigeria. It seems to me that, indeed, the CJN could take the oath before a priest or even the registrar of the Supreme Court of Nigeria.
What else do you think the Western media would promote, other than chaos in the country?
Hey, the President of the United States DOES not swear in the Chief Justice of that country. We should face other more pressing matters, please. Let CJN Aloysious face adminstering justice.

another name for nigeria is illegality.
from the president to the last citizen is illegal.
if we accept an illegal president, what more an illegal chief justice?

Part of our problem is that we allow ourselves to be guided largely by those who don't know more than us. I sat down before a former founder of one of Nigeria's better banks the other day. And, I went away with a lasting impression. He said he always goes back to the basics for everything. He always starts with 101 of everything. It was after he read the Electoral Laws that he found out that you don't have to know who the chairman of INEC or that the INEC chairman does not even have to like your face before you get a party registered. It is there in the electoral laws. He has registered a party, and he has been doing everything thereafter based on INFORMED DECISIONS. A lot of people have reacted to the Justice Minister pronouncments on the Federal Executive Council being the only party that can decide on the fate of the president. And, there have been "mixed reactions" as the newspapers say. But, whether we like it or not, the Minister is bloody right. Section 144 (1) is so clear on it:
It stipulates that:
The President or Vice-President shall cease to hold office, if -

(a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of his office;
We just allow ourselves to be wound by all sorts of people who would be so happy to feast on our ignorance.
Same thing with our religion. We depend solely on what our so-called religious leaders say without referring to the holy books. Pastor said this, Imam said that. What do the books say.

We behave quite stupidly most of the time.
That is why those politicians ride roughshod over us.
They know we would not take time to READ.

^
You're talking like a politician.
I just don't want to engage in roundabout arguments (a bit too busy right now).

TEE ZERO:

Part of our problem is that we allow ourselves to be guided largely by those who don't know more than us. I sat down before a former founder of one of Nigeria's better banks the other day. And, I went away with a lasting impression. He said he always goes back to the basics for everything. He always starts with 101 of everything. It was after he read the Electoral Laws that he found out that you don't have to know who the chairman of INEC or that the INEC chairman does not even have to like your face before you get a party registered. It is there in the electoral laws. He has registered a party, and he has been doing everything thereafter based on INFORMED DECISIONS. A lot of people have reacted to the Justice Minister pronouncments on the Federal Executive Council being the only party that can decide on the fate of the president. And, there have been "mixed reactions" as the newspapers say. But, whether we like it or not, the Minister is bloody right. Section 144 (1) is so clear on it:
It stipulates that:
The President or Vice-President shall cease to hold office, if -

(a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of his office;
We just allow ourselves to be wound by all sorts of people who would be so happy to feast on our ignorance.
Same thing with our religion. We depend solely on what our so-called religious leaders say without referring to the holy books. Pastor said this, Imam said that. What do the books say.

I get you - Nobody is playing ignorance - the point is because of personal greed the fec have refused to do the right thing
i

It would seem that the blame should go to the framers of the constitution.
How, on earth, do they expect them to vote against the person who appointed them to their positions? They would rather wait until the man goes into coma or dies. I think.

Which thus leads to many ambiguities in 99 constitution . It is deeply flawed

Oh well.
There are also processes in amending the constitution.
9. (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.

(2) An Act of the National Assembly for the altertion of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

(3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States.

(4) For the purposes of section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution
Unfortunately, the framers did not stipulate any provision on how the Citizen can participate, because, as it were, the members of the National Assemby are deeme to be representatives of the people. Just that in thi ase,we have unrepresenting legislators
That is why, I personally advocate for a strong, vibrant press, which Constitutionally has the power to monitor governance on behalf of the people. Sadly, the press in Nigeria, despite the freedoms they had won for Nigeria, from independence to return to civil rule, had been unable to play that role as it should be. You know why? Most of the papers today are owned by serving and retired governors. But, we can't relent. We have to INFORM ourselves, and live less ignorantly. Once those politicians know that we cannot be taken for a ride, they will behave rightly

The good thing about that constitution is that Section 39 grants every Nigerian citizen " freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference."

There is nothing more powerful than that.
The Section preceding it grants us "freedom of thought, "

Hmmm dere is nothing i will not hear in nigeria b4 the end of dis year 'illegal chief justice' kwa

TEE ZERO:

The good thing about that constitution is that Section 39 grants every Nigerian citizen " freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference."

There is nothing more powerful than that.
The Section preceding it grants us "freedom of thought, "

@TEE ZERO
I appreciate the spirit of your post, but your choice of words makes your position wrong. The Constitution does not and cannot grant you any of the freedoms you have mentioned. It merely acknowledges and affirms that as a member of the human race you were born with these rights, and charges every tier of government in Nigeria with the sacred duty of making sure that nothing and nobody acts in such a way as take these freedoms from you.

Beaf, TEE ZERO, blacksta, Pifa et al.

The issue is a bit clearer to me after doing more research. The problem, it seems, is the timing of the swearing-in ceremony (and to a lesser extent, who was designated by the constitution to administer the oath of office to the new CJ). The retiring CJ officially leaves office at midnight on Dec 31, 2009. By swearing-in the incoming CJ today (or was it yesterday in another time zone) the retiring CJ effectively created a short but troubling transition during which the country would have two sitting CJs. That would be unconstitutional.

Where the retiring CJ erred in my layman's view was not making his retirement effective at the time the new CJ was sworn in. Or he could have administered the oath at midnight on Dec 31. What was his hurry? Was he afraid that forces beyond his control would prevent a midnight ceremony? If he couldn't administer the oath of office before he went into retirement, and since the constitution didn’t designate any government official to administer the oath to the incoming CJ, the country would be without a top jurist until the legislature got its act together to correct the situation. Well, we all know how levelheadedly and expeditiously elected officials do their jobs in Nigeria (pun intended).

But all I've written so far still stand: this is much ado about nothing. In any organization, there is always a hierarchy. If the Nigerian Supreme Court was without a new CJ for a few 48 hrs., the senior ranking member of the court’s hierarchy could act in the interim as the CJ. The heavens would not collapse on justice in Nigeria during that transition.

This ruckus shows some growing pains. But it also exposes how immature the legislature and the judiciary are in Nigeria. Why couldn't the VP administer the oath? If the VP was not available, why couldn't the Speaker of the House, who is next in succession, administer the oath? How could a purportedly exalted legal mind like the retiring CJ not see this crisis before he decided to usurp the VP’s prerogative by administering the oath himself? Why didn't the new CJ refuse to take the oath on the principled ground that it would create two CJs even if for only a 48-hr period? Do I give these people too much credit for rational thought?

Well, well, I think you all should look at this. It is the second schedule of the oaths act.

[url]http://www.nigeria-law.org/Oaths%20Act%201990.htm[/url]
scroll down to Second Schedule



It seems the Oaths Act of 1990 (updated in 2004) caused this problem. It specifically states that either the president or the CJ shall administer the oath to the CJ (presumably the new CJ).

So, technically, the retiring CJ was right in his action.


Damn! I've spent so much time on this issue. But it was worth it. I learned quite a few things about Nigeria.

@ Pifa: I don't know how you feel, after doing this and getting to the bottom of the controversy. If I were you, I would pop champagne
There is indeed no technicality about this.
The outgoing CJ was right. It is there in the Second Schedule - the Presiddent or the CJ. It is there. In black and white.
But our distinguished attorneys decided to not return to the101 of things, and set the nation on a collision course.
We have to always return to 101.
Pifa - may you always find what you seek.
Thank you for taking us out of ignorance. Thank you, indeed.
In fact, I think that CJ Kutigi must have been having a laugh on those people when he didn't disclose the supporting law for his action.

New [b]Thief [/b]Justice of Nigeria Ignatius Iyorger Katsina-Alu (alu in Anambra is abomination). Clearly, this is abomination.
We don't have a sitting President, rather a hospitalized one that has lost his voice.
A confused senate or should i say National Assembly who cannot impeach Yaradua for being incapacitated.
Anyway, the drama continues and i know, we shall survive somehow.

If the constitution of the federal Republic of Naija say so, then why not.

na wahooooooooooooooooooooooooooooo.land of illegalities,l,and of any how

If the outgoing CJ is empowered by law to administer the oath on the incoming CJ, why make useless noise? we are a land of ignorant people who like making mountains out of molehills when our real challenges are ignored.

Nezan:

If the outgoing CJ is empowered by law to administer the oath on the incoming CJ, why make useless noise? we are a land of ignorant people who like making mountains out of molehills when our real challenges are ignored.

I seriously wonder. . .
It has been screamed all over that the whole move is valid and the law is there, what more do Nigerians moaning and groaning want

Everything concerning this country is lllegal, even the country himself is illegal.