Why suspension of CJN is Illegal and unconstitutional
EMERGENCY DIGEST – On Friday, January 25, 2019, the President of Nigeria , Muhammadu Buhari, suspended the Chief Justice of Nigeria, Justice Walter Nkannu Samuel Onnoghen from office, and immediately administered the judicial oath of office to the most senior Supreme Court Justice , next in rank to him, Justice Ibrahim Tanko Muhammed as the Acting Chief Justice of Nigeria.
Following that act, the president delivered a 25-paragraph address, akin to a coup speech, wherein he gave reasons for his action.
Essentially, the president explained that he was swiftly executing an order ex-parte ( that is, a one sided order procured without notice to, and the knowledge of the “suspended” CJN or his lawyers) of the Code of Conduct Tribunal (CCT), made and dated the 23rd day of January, 2019.
The order mandated him to suspend the CJN from office, pending the final determination of his trial at the CCT, and swear in the Justice of the Supreme Court next to him in rank, as an acting CJN.
The president further explained that sequel to the filing of corruption related charges against the CJN by the Code of Conduct Bureau ( CCB) before the CCT and the commencement of his “trial “ for gross violations of the provisions of the Code of Conduct for public officers, as stipulated in the Constitution of Nigeria, the CJN, instead of resigning his position took steps to frustrate his trial.
The CJN had been accused in the charges of receiving into and retaining in many banks accounts huge sums of money in foreign and local currencies, without disclosing them in his asset declaration forms and documents submitted to the CCB.
Unusual Speed
On January 7, 2019 , the CCB received the petition against the CJN and between that date and 14th January, 2919, treated the petition and filed charges against the CJN, leading to his expected arraignment.
Many were shocked by the speed of that process, making many to wonder whether that speed did not signify that the FGN was coordinating the plot to remove the CJN from office.
The publicised demand of the Federal Executive Branch of Government for the resignation of the CJN from office , and the hollow and flat statement made by Vice President, claiming the President was not aware of the travail of the CJN before he was charged were pointers that the Buhari Administration was the resolute and implacable force behind the effort to remove the CJN from office.
When the CJN was confronted with the particulars of his infractions, upon the receipt of a petition from an NGO that submitted same, calling for his probe and prosecution, he made a ‘confession’.
In a a written statement that he volunteered, he admitted the ownership of the bank accounts and the sums therein contained, but claimed that he forgot to declare the bank accounts.
In the face of these damning confession, the president stated that Nigerians had expected the CJN to resign his office.
But instead of doing that, a team of senior lawyers working with him had obtained a number of orders from the courts to frustrate his trial.
It was in consequence of these orders that the Executive had to act.
It sought an order to suspend the CJN from office and upon the order being granted by the CCT, acted swiftly to suspend the CJN from office.
Divided Public
As it has now become the pattern, public opinion on the action taken against the CJN by the president is sharply divided.
A section of the public is of the view that the president acted illegally and unconstitutionally. They cite the provisions of Section 292 of the Constitution, which guarantees security of tenure for judicial officers, especially the CJN.
By this, he cannot be suspended or removed from office without the recommendation of the NJC and the 2/3 concurring approval of the Senate.
The other section hails the action of the President, contending that it is premised on a valid and subsisting order of the CCT, which has not been set aside, and which is incumbent on the President to enforce.
This section of opinion believes that the action of the President addresses the substance of the allegation of corrupt practices against the CJN, the tackling of which is being frustrated by the resort to technicalities and procedural niceties of law, a slavish adherence to the labyrinth of the due process of law, and treading of the laborious path of the rule of law .
Informed View
Faced with the divided, nay partisan opinion on the matter, patriots, lovers of democracy, believers in the rule of law and abhorrers of corrupt practices in our public life must take an informed and well considered view on the far- reaching and unprecedented step the Executive Branch of Government has taken.
While isolated (and we say not pervasive) cases of corrupt practices in the judiciary must be combated assiduously by our anti-corruption agencies under the Executive Branch of Government, Nigerians must decry the procedure adopted by the Muhammadu Administration.
Because of wrong procedure, the suspension is patently illegal and unconstitutional. It is disingenuous for anyone to argue to the contrary.
The suspension, which the Administration argues emanates from an order of the CCT is no more than a premeditated executive act dressed up in a quasi judicial cloak to give it legitimacy.
It was akin to what the military regime of General Bademasi Babangida did while fishing for judicial pretexts to stop the holding of the June 12 1993 Presidential Election, and annul it altogether.
It used its proxies to procure orders of injunctions from Hon Justice Bassey Ikpeme and Hon. Justice Dahiru Saleh of the Abuja High Court to stop the holding of the election and when the election was held, to stop the counting and release of the results.
This was in spite of the fact that the decree guiding the transition to civil rule programme had prohibited the granting of such orders, which could truncate the conduct of the election!
And it is puerile to argue that the mode of suspending or removing the CJN from office, as clearly defined by the Constitution can be circumvented by reliance on the provisions of Section 11 of the Interpretation Act, Cap 123, Vol. 8, LFN, 2004, an inferior statute, compared to the Constitution, the Supreme Law of the land.
The act of the Buhari Executive cannot be justified by invoking the provision of the Interpretation Act.
The precedent of the unconstitutional and wicked ill treatment meted to Justice Isa Ayo Salami, erstwhile President of the Court of Appeal by the Goodluck Jonathan Presidency, cannot be used as justification.
Incidentally, the senior lawyers that colluded with the Goodluck Jonathan Administration then to traduce and harangue Hon. Justice Isa Ayo Salami, CFR, and cruelly and crudely abort his presidency of the Court of Appeal are now the in the CJN Onnoghen’s corner, mouthing “the rule of law“ , “due process of law” , “judicial independence“, and decrying an alleged descent into fascism.
Political Game Play
Apparently, the executive branch of the government desired the ouster of the CJN from office.
To actualise the objective, it worked closely with a shadowy NGO to dredge up CJN Onnoghen’s infractions of provisions of the Code of Conduct for Public Officers. Many of these infractions predated the appointment of Justice Onnoghen as the CJN in 2017.
But there was no political exigency then for the use of the discovered and known transgressions of the CJN. The motive for using the allegations now is the feared harm the judiciary that is presided over by the CJN could do to the political interests of the ruling party, especially regarding pre-election cases and election petitions.
The CJN is facing an indefensible and shameful allegation of corruption against him , an allegation which warrants that he resigns from office, without waiting for his suspension from office by the Executive Branch of Government. But if the truth must be told, the reasons for the action of the Executive are beyond the fight against corrupt practices in the Judiciary.
The constitutional path to be charted to legally suspend or remove a CJN from office is luminously delineated by the Constitution.
What The Law Says
By virtue of Section 292(1)(a)(i) of the Constitution, the CJN cannot be removed from his office or appointment before his retirement age ( or suspended from office while the real intention is to secure his removal ) except by the President, acting on an address supported by two thirds majority of the Senate.
The NJC, by virtue of paragraph 21(b) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 ( as amended ) recommends to the President the removal from office of certain category of judicial officers including the CJN , and exercises disciplinary control over them. Problematic? Of course, yes.
This is because regulators are being impracticably saddled with the power to regulate themselves. But that is the path for the removal or suspension of the CJN from office as provided by the Constitution!
Section 18, Part 1 of the Fifth Schedule to the Constitution defines the power of the CCT. In particular, Section 18 ( 2) stipulates the punishments which the CCT may impose upon conclusion of trial. They are : (a) vacation of office or seat in any legislative house as the case may be; (b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; and (c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office .
Instructively, the CCT is not vested with any power under the Constitution or the Code of Conduct Tribunal Act to order the Executive Branch of Government to suspend a public officer who is undergoing trial before it, from office , pending the conclusion of trial, as the CCT has purportedly done.
Also instructive is the fact that being a quasi criminal tribunal, the rules of procedure of the CCT is the Administration of Criminal Justice Act, a criminal procedure act, under which an ex parte or interlocutory order, analogous to an order of injunction obtainable in civil proceedings ( under the civil procedure rules of our courts ) may not be validly sought or granted.
Read Also:
What the Executive Branch of Government has done in the circumstances, therefore, was to force the matter of the desired removal of the CJN from office.
The Federal Government knew there were constitutional blockades against its desired removal of the CJN from office.
It recognized that FRN V NGANJIWA, 2018, 4 NWLR ( Pt. 1609) , 301 at 341 and 349, is a caselaw obstacle. But it was determined not to be restrained or frustrated by the rule of law.
Dangerous Precedent
The suspension of the CJN should, therefore, 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.
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.
The legal profession in Nigeria, Bar and Bench must, however, accept that in many ways, some of its members, including senior lawyers, have contributed immensely to the burgeoning of corrupt practices in the legal profession, and to the counterfeiting of the rule of law.
While many were complaining about the haste with which the Onnoghen ouster project was being prosecuted by the Executive Branch of Government, a desperate Chief Justice Onnoghen, with the assistance of an equality desperate team of lawyers stormed two courts ( Federal High Court and the National Industrial Court ) on Monday the 14th of January , 2019 to procure orders restraining the CCT from proceeding with the arraignment or trial of the CJN.
The cases were filed on that day, processed, assigned and heard. The case before the National Industrial Court was filed by an NGO, and not the CJN , who, in law, is the only one who has the locus standi to institute an action relating to his appointment, employment as a judicial officer or office in an industrial court.
Being an industrial court, the primary litigants in that court are employees, employers, trade or labour unions, and employers associations. Not any busy body.
And yet both the Bar and Bench continue to admonish against abuse of processes of our courts .
As if that anormaly was not bad enough, following the commencement of proceedings before the CCT and arguments on the issue of service, appearance of the CJN and challenge to the jurisdiction of the Court, the CJN immediately approached the Court of Appeal seeking an order to stay the proceedings of his dawning arraignment and trial before the CCT, without waiting for the resumption of proceedings before the CCT on Monday 28th January, 2019.
The CCT had adjourned the continuation of hearing of the matter from the 22nd January to the 28th of January, 2019.
Unfortunately, contrary to the decision of the Supreme Court, on the 24th of January, 2019, the Court of Appeal granted an order in favour of the CJN staying the proceedings of the CCT, until 30th of January, 2019, thereby, in a way, provoking the Executive to intervene by effecting the order of the CCT directing it to suspend the CJN.
In Saraki v FRN 2016, 3 NWLR, Pt 1500,531 at pp 579 ; paras E-H; 581 paras F-G; and pp 583 -584, paras H-A , the Supreme Court held that the nature of the jurisdiction of the CCT is a quasi criminal jurisdiction, and that the rule of procedure applicable in the proceedings conducted before the CCT is the Administration of Criminal Justice Act. In Metuh v FRN, 2017, 11 NWLR , Pt. 1575, 157, at pp. 176-177, paras G-B; 179, paras A-C, E-F, ; 180, paras C-E ; 181-182, paras G-C ; and 183 , paras C-E, the Supreme Court held that under Section 306 of the Administration of Criminal Justice Act , 2015 , a trial court ( and afortiori an appellate court ) lacks the power to stay proceedings of criminal trial ( and a trial before a court of quasi criminal jurisdiction, if we need to add).
Looking Inward
In the handling of anti corruption cases and political cases ( suits emanating from conduct of primaries of parties and election petitions) , members of the legal profession continue to face justifiable blames and accusations.
The recent proclivity of our courts to grant orders and deliver judgments preventing a political party from holding its primaries and nullifying entire primaries conducted in states , thus preventing the party from fielding candidates in the upcoming general elections, has only added to the perception that the Judiciary is toeing a path of war against that political party and its interests.
We had not expected that while exercising its judicial power in respect of testy and difficult intra-party congresses and primaries for selection of candidates, the Judiciary will place a blanket ban on a political party not to field candidates in an election, thereby giving a technical victory to other political parties ahead of the election.
Such decisions do not only affect the party at the receiving end of such an order, but also implicate the constitutional right of voters to elect candidates of their choice, since their preferred candidates and party may be those barred from participating in the election.
Decisions barring parties from fielding their candidates, which are hailed by some as the triumph of the rule of law is, therefore, an invitation to judicial instability, as political power wielders will escalate their use of the Judiciary as a field to wage their power struggle and supremacy battles.
In the face of assault, contempt and provocation, the Judiciary is not expected always to resort to retribution and vengeance. It can truly do justice according to law, while extricating itself from a path that may lead to its being carelessy, recklessly and unfairly branded as a politically partisan umpire.
Nigerians can then imagine that the Muhammadu Buhari Administration that once had described the Judiciary as “it’s headache” could quickly in the prevailing circumstances have developed a persecution complex, fearing that it may suffer irreparable judicial decimation in the elections petitions that may arise from the forthcoming elections, if there was no ‘intervention’ in the Judiciary, and CJN Onnoghen was left in the saddle.
The fact that beneficiaries of certain political and anti corruption cases that were decided by the Judiciary, and their very familiar lawyers are now the vociferous defenders of the Judiciary against a “rampaging and dictatorial“ Executive Branch of Government is a further “proof” which the Onnoghen ouster conspiracy will celebrate as the evidence of judicial partiality and lack of independence under Chief Judgeship of Hon. Justice Onnoghen.
Looking Ahead
In order to save the Judiciary from further assault and embarrassment, and Nigeria from further international humiliation, a number of urgent steps must be taken by the Judiciary, the Executive Branch of Government and the legal profession.
The President must withdraw his purported execution of the order of the CCT suspending CJN Onnoghen from office, and swearing in Hon. Justice Ibrahim Tanko Muhammed as the Acting CJN of Nigeria.
This must be done immediately to stabilise the failing health of the Supreme Court that must have been occasioned by the act of the President.
Hon. Justice Walter Samuel Onnoghen must immediately resign from the office of the Chief Justice of Nigeria.
His reputation as a judge and as the head of the Nigerian Judiciary has been irreparably damaged, and his clinging to judicial office will not serve any useful purpose at this time.
His attempt to shield himself in office as exemplified by the inexplicable panicky indefinite postponement of the meeting of the NJC on 15th January , 2019, thereby robbing the NJC of its earliest opportunity to discuss the issue of his charge before the CCT is not helping him.
If anything , it portrays him, very unfortunately, as a person who is determined to cling to judicial office while the Judiciary is engulfed in crisis, flowing from issues relating to his alleged ethical infirmities.
The President of the Nigerian Bar Association, who is also facing a criminal prosecution by the Federal Republic of Nigeria ( EFCC) should either step down from the presidency of the NBA or recuse himself from the membership of the NJC, pending the conclusion of the criminal charge against him.
Even when his presumption of innocence is conceded, this is the only way to guarantee that his representation of the NBA in the NJC is not used and surbodinated in the prevailing circumstances to the pursuit of his self interest to have himself discharged and acquitted.
The NJC must meet immediately to accept the resignation of Honorable Justice Onnoghen, and forward same to the President; and recommend a new Chief Justice of Nigeria to the President for a due appointment, with the approval and confirmation of the Senate.
In the meantime, the President will now be in a position to properly exercise his powers under Section 231(4) of the Constitution to appoint an Acting CJN in the person of Hon. Justice Ibrahim Tanko Muhammed.
The NBA and members of the legal profession must be mobilised not only to condemn the Executive for its acts of interference in the Judiciary, but also to compel Hon. Justice Onnoghen to resign as the CJN with immediate effect.
The unwitting impression the legal profession creates when it condemns the Executive without demanding for the resignation of the CJN is that it is protecting the CJN and shielding him from facing the consequences of alleged involvement in corrupt practices .
In addressing the issues that the actions of the Executive have raised, state actors and stakeholders in the Judiciary and outside it must ensure that the Judiciary is not further politicised or divided along ethnic or religious lines.
Finally, the current debacle rocking the Judiciary must be resolved to preserve and grow Nigerian constitutional democracy and rule of law and intensify the fight again corruption in Nigeria’s public life.
Jiti Ogunye, a public interest attorney, commentator, and author, is the legal adviser to Premium Times.
