Nigeria: Constitutional confusion in President’s absence

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The Nigerian legal system has moved to replace its Chief Justice sparking debates over the constitutional due process. The move is considered illegal as only the president is allowed to appoint a chief justice. But the president Mr. Umaru Yar’ Adua is currently receiving treatment in Saudi Arabia for a heart condition.

Even though several top politicians have called for Mr. Yar’Adua’s resignation over his ill-health, senior lawyer, Bamidele Aturu has contended that the constitution makes it clear that the chief justice can only be sworn in by the president.

According to Mr. Aturu, “This means the legality of the appointment is in question and people can go to court and challenge it. On the opposing view is outgoing Chief Justice Idris Legbo Kutigi who said a law had long been in existence to allow chief justices to swear in their successors.

Nonetheleass, the Nigerian constitution, Chapter VII, Section 231 – (1) states that: “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.”

According to reporters in Nigeria, there was talk of flying the new chief justice to the president’s hospital room and filming a ceremony. But officials decided that the outgoing chief justice would perform the president’s job, based on the Oaths Act, which says that any lawyer can take an oath from anyone else.

Conversely, many observers are warning that Nigeria’s constitution is being kicked aside. Many have also criticized the president for not appointing his deputy acting president Mr. Goodluck Jonathan, when he left, forgoing another constitutional requirement.

The so called illegal ceremony was presided over by outgoing Chief Justice Idris Legbo Kutigi, who retires on 31 December.

Top opposition politicians began legal proceedings to try to force President Yar’Adua to step down on health grounds. Reports have said the president is suffering from acute pericarditis, an inflammation of the lining of the heart, and a long-standing kidney complaint.

The president has been bedridden in Saudi Arabia for more than a month now and a number of Nigerians say they do not know who is making the executive decisions in the country. Reports have also revealed the concealed panic among officials in Abuja over what to do about the retirement of Nigeria’s most senior judge, Chief Justice Idris Legbo Kutigi.

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