The suspension of the Chief Justice of Nigeria, Walter Onnoghen, seems to not only to have pitched the three arms of government against one another, but triggered some sort of constitutional crisis in the country and could scuttle the country’s fledgling democracy. PATRICK ANDREW and KEHINDE OSASONA write.
Crux of the matter
The recent verdict precisely three days ago by the chairman of the Code of Conduct Tribunal (CCT), Danladi Umar, halting the trial of the suspended Chief Justice of Nigeria Walter Onnoghen until further pronouncements by the Appeal Court notwithstanding, it appears that contending forces who are either for or against the embattled Nigeria’s 17th CJN have simply refused to sheath their sword, as it were.
Blueprint newspaper recalls that the federal government had in an unprecedented move penultimate week declared war against the nation’s number one law interpreter Justice Onnoghen over what it described as violation of the Code of Conduct Bureau (CCB) Acts, saying Onnoghen had erred in law.
Just before his alleged suspension and replacement by Justice Tanko Mohammed, the federal government had before hand prepared a motion for the tribunal to compel him to vacate his office to enable him concentrate on clearing himself of the criminal allegations against him
Consequently, the government slammed a six-count criminal charge against Justice Onnoghen and arraigned him over his alleged refusal to declare his assets. Aside from the allegation that he failed to disclose his assets as prescribed by law, the federal government, in the charge that was filed by the Code of Conduct Bureau (CCB), equally accused the CJN of operating foreign bank accounts.
The prosecuting agency alleged that contrary to relevant laws regulating the conduct of public office holders, the CJN, maintained a domiciliary foreign currencies account that comprised of dollars account, pound sterling account and Euro account.
What the constitution says
According to section 292 (1), “A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances: (a) In the case of (1) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, President of the National Industrial Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.
It held further: “In any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge to functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct”.
In 2016, the Senate in the course of carrying out an amendment on the Code of Conduct Burea and Tribunal Act (CCB/CCT Act) tinkered with Section 18(1) & (2) of the extant law by transferring the president’s regulatory power over the bureau and tribunal to the National Assembly.
Also, the parliament reintroduced a provision which authorises the CCB to invite anyone found culpable in asset declaration to make necessary correction as against being charged to the tribunal for trial. This provision had earlier been expunged from the extant law.
The bill, entitled: “Code of Conduct Act CAP C15 LFN 2004 (Amendment) Bill, 2016 (SB 248)”, which was sponsored by Senator Peter Nwaboshi (Delta North), according to him, aims at saving Nigerians from desperate and overzealous politicians, describing it as “a patriotic” piece of legislation.
The trial
But sensing possible constitutional crisis, an Abuja Federal High Court judge Justice Maha, adduces that rather than ruling on two ex parte applications on Monday, January 14, 2019, ordered all concerned parties to maintain the status quo till January 17 for substantive hearing of the suits, asserting that his court must first hear the plaintiffs’ motions before the trial can continue at the tribunal.
Justice Maha’s ruling came shortly after the CCT hearing in a case marked CCT/ABJ/01/19, commenced at the tribunal in absence of Onnoghen. Nevertheless, the arraignment commenced as the Aliyu Umar-led prosecution team assured the CCT that the defendant had been served with the charges and summons.
One of the suits, marked FHC/ABJ/CS/27/2019, listed the Attorney-General of the Federation and Minister of Justice, Abubakar Malami; CCT Chairman, Danladi Umar; the National Judicial Council (NJC), the Inspector-General of Police, Ibrahim Idris, and the Senate President, Bukola Saraki, as defendants. It was filed by incorporated trustees of the Centre for Justice and Peace Initiative.
The other suit, marked FHC/ABJ/CS/28/2019, also listed Malami, Umar, Idris, the CCT, and the Code of Conduct Bureau (CCB) as defendants, and was filed by the incorporated trustees of the International Association of Students Economists and Management.
The defence team led by Chief Olanipekun, a former President of the Nigerian Bar Association (NBA), was battle ready to challenge the tribunal’s jurisdiction to even entertain the case in the first place. “You have to first determine whether you have the jurisdiction to try this matter,” he said to the three-member panel.
Arguing further, he said allegations of a crime against a serving judge should have first been entertained by the NJC before other federal agencies can hope to prosecute for such allegations, saying the CJN had not been given enough time to properly prepare a defence before he was asked to appear before the tribunal.
In a related development, the National Industrial Court also issued a restraining order against the CCT stopping it from proceeding with the trial of Onnoghen, just as the National Industrial Court allowed another motion, ex-parte, seeking to suspend further action by parties to the matter, pending the determination of an application challenging the CCT trial.
The Industrial Court ruling it would be recalled restrained the CCT chairman, Danladi Umar, the Inspector General of Police, Ibrahim Idris, and Justice Minister Abubakar Malami, from proceeding with the hearing, pending the determination of the substantive application before the court which was to be heard on January 21.
In the court papers, the application indicates seven defendants, namely: Messrs, Malami, Umar, Idris, Senate President, Bukola Saraki, CCT, CCB and National Judicial Council.
Considerably, the Court of Appeal, Abuja Division, has stopped the Code of Conduct Tribunal from proceeding with hearing in the charges of false assets declaration filed against the CJN Onnoghen. The three-man panel granted the interim order pending ruling on the Onnoghen’s application for stay of proceedings fixed for January 30.
Delivering the ruling presiding Justice Abdul Aboki ordered that, “This ruling is adjourned till Wednesday, January 30. The tribunal is ordered to stay all proceedings pending the ruling on this application.”
While moving the application for a stay of proceedings, Onnoghen through his counsel, Chief Wole Olanipekun (SAN), had prayed the court to grant the stay of proceedings at the CCT pending hearing and determination of the appeal against the order of the tribunal made on January 14.
Olanipekun submitted that the issue involved was jurisdictional, constitutional, and judicial, adding that there was an urgent need to preserve the res (the subject matter) of the case. “The subject is strong, unique and needs to be preserved,” he said.
Olanipekun reported that the tribunal went ahead to hear the matter on Tuesday despite being made a party in four judgements obtained at the Federal High Court, FCT High Court and the National Industrial Court of Nigeria.
Besides, he said the tribunal ought to have stayed proceedings in the matter having been informed of the pendency of the appeal at the Court of Appeal. He, therefore, urged the court to order a stay of proceedings on the matter at the CCT in the interest of the subject matter, constitution and the judiciary.
Connecting Onnoghen removal to 2019 elections
However, it is not readily clear if FG’s move against the CJN is part of intrigues precipitating the 2019 general elections, but, Justice Onnoghen had before his removal reportedly declared the readiness of the judiciary under his leadership, to dispassionately resolve disputes that will arise from the impending elections.
A political analyst, Muyiwa Osunde, observes that the coming elections in Nigeria have further exposed sinister motives of political players in the country and government in power.
In a telephone interview with Blueprint, Osunde said: “This coming election is very crucial and looking at the antagonistic nature of political parties’ campaigns including APC and PDP which mostly focuses personality and vendetta rather than issues at stake, the Nigerian masses would definitely be at the receiving ends when chips are down,” he said.
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….the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge to functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.
SERAP, PDP kick
Meanwhile, a civil society group, Socio-Economic Rights and Accountability Project, (SERAP) had in a petition dated 26 January 2019 and signed by its Senior Legal Adviser Bamisope Adeyanju, the organisation said in an open petition to the chairman of the National Judicial Council (NJC) that it should immediately take over from the Code of Conduct Tribunal the case of CJN Onnoghen with a view to setting up a committee to investigate the allegations of breach of constitutional asset declaration requirements against him.
The organization also urged the NJC to: “Ask Justice Onnoghen to step aside from his role as Chief Justice pending the outcome of your investigation into the allegations against him, threatening that SERAP will take appropriate legal action to compel the NJC to take action on the case if no action is taken.”
“Also, if following your investigation, the allegations against Justice Onnoghen is established, the NJC should refer the case to appropriate anti-corruption bodies for prosecution. Similarly, Justice Ibrahim Tanko Muhammed should rescue himself from the process, as the Acting Chief Justice of Nigeria.” The organization asked the NJC to: “consider the issue of appointment of Justice Muhammed with a view to ensuring strict compliance with constitutional provisions.
SERAP was quoted to have said: “The urgent intervention by the NJC would remove the allegations against Justice Onnoghen from the vicissitudes of political controversy, and a clear and present danger to the independence and authority of the judiciary.
“It would also help to reverse the country’s increasing movement toward anarchy or despotism.” According to the organization, “It is in time like this that the NJC must be most vigilant and alive to its constitutional duties, if it is not to permit a diminution of our treasured constitutional rights.”
“SERAP is concerned that the politicization of our judiciary poses the greatest threat to the independence of the judiciary, to Nigeria’s fledgling democracy and would if not urgently addressed lead to denial of access to justice to the most marginalized and vulnerable section of the population.”
“The politicisation of the judiciary by politicians would endanger Nigerians’ fundamental human rights and the country’s international human rights obligations, and consequently, the fundamental principles of our constitutional democracy.”
Also, the the Peoples Democratic Party (PDP) last week reacted to the suspension of the Chief Justice of Nigeria, CJN, Walter Onnoghen by President Muhammadu Buhari via a statement by its spokesperson, Kola Ologbondiyan, saying that such impunity cannot stand, as Nigeria is a
nation governed by law and not by the whims and caprices of a dictatorial leader.”
The main opposition party claimed that “President Buhari wants to ruin our country, saying that it will never allow him.
The statement partly reads: “PDP rejected “in its entirety, the attempts” by President Buhari to allegedly “foist an illegal Chief Justice on the nation while the substantive Chief Justice of Nigeria, Justice Walter Onnoghen is still in office.”
The former ruling party said, “Nigerians must reject the incendiary move by President Buhari to forcefully suspend our constitution, annex the judicial arm of government and open the nation up for full-blown totalitarianism to achieve his self-succession bid, having realized that he cannot win in the 2019 general election.
“President Buhari’s action in attempting to unilaterally appoint a Chief Justice and foist him on our country is a direct invitation to anarchy, national confusion and a monumental crisis capable of derailing our democracy and destroying our corporate existence as a nation.
“It is now clear to the world that President Buhari, in his selfish self-succession bid, is out to cause mayhem in our nation and truncate the smooth conduct of the 2019 election, not minding the consequential human and material losses.
“There can be no two Chief Justices of Nigeria. Our constitution is clear on how a Chief Justice is appointed and removed as such does not lie on the prerogative of the President. As such, we urge all Nigerians and the
international community to recognize only Justice Walter Onnoghen as the Chief Justice of Nigeria.”
Consequently, the party urges the “international community and particularly the United States and the United Kingdom to note that this assault on the judiciary is geared towards subverting the 2019 general elections and as such immediately list President Buhari and APC leaders for proposed sanctions on election riggers and perpetrators of violence in the general election.
The former ruling party therefore called on the National Assembly to reconvene and proceed with legislative action against the President.
“President Buhari tried to forcefully remove the leadership of the National Assembly and failed. His attempt to annex the judiciary and impose a Chief Justice that will surrender the judiciary to him is also already dead on arrival.
“We call on the National Assembly to immediately reconvene and proceed with legislative actions against President Buhari for this gross misconduct,” the statement further stated.
Suspension subversion of democracy- Atiku
The PDP presidential candidate, Atiku Abubakar, joined the fray by stating that the latest action of the president was against the law.
According to Atiku, the president said that the suspension was as a result of the ongoing trial of Onnoghen by the CCT and subsequent order of the tribunal directing him to suspend the CJN pending the completion of his trial.
However, he dismissed the argument stating that no mission or goal no matter how noble or well-intended, should be used as a pretext for the subversion of democracy and democratic institutions.
“Without doubt, the fight against corruption is crucial to good governance and the progress of our country. In this context, the issue of corruption as it relates to the institution of the judiciary is even more crucial.
“As the last refuge of the common man, our judiciary must not only be above suspicion but must also be seen to be manifestly above board.
“The issue at stake is not whether the Chief Justice is guilty or not, but whether his removal from office has been done in accordance with the process specified in our constitution.
“As a democrat, I must say, without equivocation that no mission or goal, no matter how noble or well-intended, should be used as a pretext for the subversion of our democracy and our democratic institutions.
“To create a condition that allows the constitution and the rule of law to become secondary to any other agenda is to pave the way for tyranny.”
Forum of presidential candidates
But the Forum of Presidential Candidates and Political Parties for Good Governance has applauded the suspension, saying that what President Muhammadu Buhari did was proper and timely.
The chairman of the Forum and presidential candidate of the Advanced Peoples Democratic Alliance (APDA), Alhaji Mohammed Shittu, said the suspension pending the completion of Onnoghen’s trial at the CCT and the swearing in of n Justice Ibrahim Tanko Muhammad, the most senior Supreme Court Justice, as the acting CJN, were within the ambit of the law.
The president said that the suspension was as a result of the ongoing trial of Onnoghen by the CCT and subsequent order of the tribunal directing him to suspend the CJN pending the completion of his trial.
The Forum expressed shock at the reactions to the alleged offence committed by Onnoghen, which were coming mainly from senior legal practitioners, and which were not based on the law, but premised on emotions, sentiments and political affiliations.
“Those who oppose the step being taken by the Federal Government have advanced basically three arguments. First, they claim that the independence of the judiciary is paramount.
“They have, however, forgotten to differentiate between the person of Justice Onnoghen as a Nigerian who is not above the law and who could commit offence,’’ the Forum said and also dismissed the argument that the timing of the arraignment was suspect.
“According to them, the proposed charge is akin to an attempt by the ruling political party to compromise Election Petitions. This argument is untenable.
“An offence can only be reported and tried whenever discovered. The suspended CJN must be prepared to face and stand trial,’’ adding that the burden was on Onnoghen to prove his innocence.
“The Forum of Presidential Candidates and Political Parties for Good Governance believes strongly that Buhari’s suspension of Justice Onnoghen as CJN is proper and timely.”
Dangerous Precedent
Many have argued that the suspension of the CJN should not be cynically and mischievously tied to the quest to preserve the rule of law, as the Executive has done. What the Executive has done is an inconsiderate abuse of power.
According to Jiti Ogunye a legal practitioner, “It erodes the independence of the judiciary. It creates a scary precedent allowing the Executive Branch of Government, acting by itself or through selected surrogates or proxies, to file a petition before the CCB and casually and interminably saunter into the CCT to obtain an ex parte order against a judge, suspending him from office, pending the determination of the charge that is filed against him or her by the CCB or the conclusion of his trial by the CCT.
“If this precedent were to become a permanent rule of law, the security of tenure that is granted to judicial officers under the Constitution will become “a tenure of insecurity” for judicial officers.”
