By Misbau Alamu Lateef
The recent appointment of Hon. Justice Kudirat Kekere-Ekun as the acting Chief Justice of Nigeria (acting CJN) and the associated administration of oaths (both judicial and allegiance) by the President has sparked needless constitutional controversies in some quarters with some persons insisting the inauguration of an acting CJN does not require an administration of oaths or swearing in by the President. They insist that oath-taking or swearing in is reserved only for the substantive position of the CJN after due confirmation by the Senate. I respectfully disagree with them in this brief intervention, and I wish to argue that the oath-taking or swearing in by the President is as much imperative for the judicial office of an acting CJN.
Without a doubt, the appointment of an acting CJN and the associated oath-taking process are matters of significant constitutional importance. A meticulous examination of the relevant provisions of the 1999 Constitution of Nigeria (as amended) reveals that the requirement for an acting CJN to be sworn in by the President before assuming the judicial office is not merely procedural but a constitutional imperative.
A combined reading of sections 231(4) and 290(1)(2) of the 1999 Constitution unequivocally mandates that an acting CJN must be sworn in by the President or any other designated person before performing the duties of that judicial office. To be clear, section 231(4) explicitly uses the words *”the President shall appoint”* when referring to the selection of an acting CJN, being the most senior judge from the pool of justices of the Supreme Court. This means the position of an acting CJN does not materialise automatically as same must be done by a delibrate appointment by the President following the clear provisions of the Constitution. Furthermore, this language of appointment under s.231(4) brings the process squarely within the ambit of section 290(1), which stipulates that *”a person appointed to any judicial office.”* must declare assets and liabilities and *take the prescribed oaths before beginning to perform the functions of that office.* Two important points are apparent from the foregoing. First, the imperative of “appointing” an acting CJN. Second, the office of an acting CJN being a new or separate “judicial office” that requires an inauguration and administration of oaths.
What is more, the phrase *”any judicial office”* in section 290(1) is all-encompassing and leaves no room for exception. The position of acting CJN, being a recognised judicial office under s.231(4) of the Constitution, clearly falls within this broad category. To suggest otherwise would be to introduce an artificial distinction not supported by the clear provisions of the 1999 Constitution.
Also, the argument that an acting CJN need not take the oath because they have previously sworn a judicial oath upon their initial appointment to the bench or that they have not yet been confirmed by the Senate is legally and logically flawed. If this reasoning were to hold, it would lead to the absurd conclusion that even a substantive CJN need not be sworn in, as they too would have taken the judicial oath upon their earlier to the bench. Such an interpretation would render the constitutional provisions on oath-taking for judicial offices nugatory.
Meanwhile, it is a well-settled principle of constitutional interpretation in Nigeria that where the words of the Constitution are clear and unambiguous, they must be given their literal and ordinary meaning. The Supreme Court of Nigeria has consistently held this view in several cases that include Skye Bank v. Iwu (2017) LPELR-42595(SC) and Olafisoye v. Federal Republic of Nigeria (2004) LPELR-2553(SC). In the latter case, the court stated: *”Where the words of the Constitution are clear and unambiguous, effect should be given to them without resorting to external aid.”*
Moreover, it is crucial to note that the provisions of any Act, including the Oath Act of 2003, cannot override the express provisions of the 1999 Constitution. Section 1(3) of the Constitution clearly establishes the supremacy of the Constitution over any other law. Therefore, regardless of what may be stipulated in the Oath Act 2003 as some persons are erroneously circulating up and down, the constitutional requirement for oath-taking by *”a person appointed to a judicial office,”* including an acting CJN, remains supreme.
Finally, the above referenced provisions of the 1999 Constitution, when read together and interpreted literally, leave no doubt that an acting CJN must be sworn in before assuming office. This requirement is not a mere formality but a constitutional safeguard to ensure that all judicial officers appointed into new or separate judicial offices, regardless of the temporary nature of their appointments, are bound by the solemn judicial oath appartening to their new *”judicial office”* as well as the declarations of allegiance, impartiality, and integrity that the various oaths represent. Any practice or procedure to the contrary would not only be unconstitutional but would also undermine the foundational principles of our judicial system.
Lateef, Ph.D., FHEA
