In a recent interview with News Central Saturday, Donald Duke, a lawyer and former Governor of Cross River State, raised questions about the propriety of swearing in Justice Kudirat Kekere-Ekun as the Acting Chief Justice of Nigeria (CJN).
His comments have ignited a debate among legal professionals about the legal requirements and implications of swearing in an acting CJN.
Duke argued that an acting CJN should not be sworn in until their appointment is made substantive. “You don’t swear in someone who is acting,” he stated. “It’s when it becomes substantial that you swear her in. Now, after she’s been confirmed, is she going to be sworn again?”
The former governor also highlighted the potential consequences if the Senate finds an acting CJN unfit for the role. “If for any reason she goes to the Senate, finds her not fit and proper to be chief justice of the Federation, even on account of her not being able to obtain a visa into the United States or whatever decides. Then she seizes, and from there onwards she proceeds into retirement,” Duke explained.
In response to Donald Duke’s comments, Joseph Bodurin Daudu, SAN, Bencher, and former President of the Nigerian Bar Association, offered a contrasting perspective. Daudu emphasized the legal requirement for taking oaths before discharging or exercising the duties of an office, regardless of whether the appointment is acting or substantive.
“Whether Acting or Substantive, the person being sworn in occupies an office and will perform functions specifically associated with the said office,” Daudu stated. “The law requires that oaths are taken before discharging or exercising the duties of the office.”
Daudu further clarified that an acting CJN’s tenure is time-bound, lasting for three months, with the possibility of a single three-month extension. He argued that the oath taken for an acting capacity cannot be transferred to a substantive role, as the latter requires a separate and distinct appointment with the approval of the Senate.
“The previous oath taken for the acting capacity is time bound, inchoate and therefore not transferable,” Daudu explained. “When confirmed Kekere-Ekun Ag CJN must be sworn in again so as to perform in a substantive manner the duties or functions of the exalted office of the Chief Justice of Nigeria.”
