Onnoghen and the unfolding controversies

Politics has remained a major problem hampering the dispensation of justice in Nigeria. Sentiments on the bases of tribe, religion, and partisan politics have bedevilled the Nigerian justice system over the years. The recent trial of the Chief Justice of Nigeria, Hon. Justice Walter Onnoghen, has generated a series of controversies and reactions both home and abroad over the constitutionality of the trial. The background to this trial is the recent allegation  levelled against the Chief Justice for false asset declaration and failure to declare monies in his foreign account amounting to some $5m. The two major issues of law have been the one relating to whether or not the Presidency had complied with the conditions precedent before the suspension of the CJN and the jurisdiction of the Code of Conduct Tribunal to entertain such a matter. What marvels me the most as regards the remarks of many Nigerians have been the comments of sentiment and bias on the attempt on the part of the Presidency to sabotage the South-South geopolitical zone following the allegations of marginalisation rather than the issues of law.

The allegations that the rule of law has been unrepentantly trampled upon under this administration must come with the fact that any misconduct emanating from the judicial arm of government must not be waved with the left palm downward and this is because justice is the only thing we live for in our daily relations with people and the fact that the court is the last hope of the common man. Section 1 of the 1999 Constitution of the Federal Republic of Nigeria makes provisions for the supremacy of the constitution implying that the business of governance must be done in accordance with the dictates of the constitution. Nigerians must get the point that Justice Onnoghen is still presumed innocent until he has been found guilty in line with Section 36(5) of the constitution. While Section 292, which has remained the mantra amidst these controversies states that the only circumstance in which the a judicial officer can be removed from office before retirement is through the President acting on an address supported by two-thirds majority of the Senate praying that he be so removed on the basis of misconduct in this circumstance. The rationale behind this provision is to guarantee an independent and impartial judiciary from the abuse of power by one organ of government in line with the doctrine of separation of power.

It is conspicuous that the Legislature and Executive in Nigeria have not been operating in the best harmony needed for good governance arising from personal grouse capped with feather of the 2019 elections. In my view, the 8th National Assembly with all sense of candour has not lived up to the sincerity expected from it in truly representing the interests of the people. This condition precedent of a two-third majority was not secured by the Presidency.

One germane issue Nigerians must note is that the Chief Justice of Nigeria does not enjoy immunity under Section 308 of the constitution and so to paint a picture that he is untouchable is to slap the face of justice which he stands to defend in his office as the ambassador of justice in the Nigerian judiciary. However, one argument that may serve as a lacuna in the constitution in my opinion is Section 292 seeking the removal of any judicial officer on the address of the President supported by a two-third majority may be abused and used as a tool for conspiracy. However, since the positivist school of jurisprudence on its analysis of law suggests that the law remains law until amended or repealed, Section 292 still holds sway which the President did not comply with when he suspended the Chief Justice and appointed Justice Tanko Mohammad as the acting Chief Justice of Nigeria during the pendency of the case in the Code of Conduct Tribunal.

On the status and jurisdiction of the CCT, it is imperative to note that the tribunal is a creation of the constitution and is not unknown to law. Part I of the Fifth Schedule of the constitution  particularly Section 11 of the Schedule states that a public officer shall declare his assets within three months after the coming into force of this code or immediately after taking office and thereafter at the end of every four years or at the end of his term of office submit to the CCB a written declaration of all his property, assets, and liabilities and those of his unmarried children under the age of 18 years  and any statement in such declaration that is found to be false by any authority or person authorised in that behalf to verify it shall be deemed to be a breach of this code. Since Section 19 of the same Schedule interprets public officers to include the CJN and the nature of allegations borders on false declaration, then it is not out of context for Onnoghen to be tried in the Tribunal after all he doesn’t enjoy immunity.

The point that the Chief Justice of Nigeria is being tried is in tandem with one of the tripod constituents of the rule of law as put forward by A. V. Dicey which is equality before the law in the absence of immunity. The fact that Lady Justice is blindfolded to an extent reveals that the law is no respecter of person and so, let unhealthy tribal sentiments be put aside. One major thing that baffles me is this and that is the legality of the order of the Tribunal and speedy executive swearing of the most senior justice of the Supreme Court in line with Section 231(4) of the constitution. Judicial pronouncements in Garba v University of Maiduguri (1986) 1 NWLR Pt. 18, p. 550 and Denlonye v Medical and Dental Practitioners Disciplinary Tribunal (1968) All NLR 298,Legal Practitioners Disciplinary C v Fawehinmi (1985) 2 NWLR pt. 7.p. 300 SC an interpretation of Section 36 of the 1999 Constitution is to the effect that in the determination of the civil rights or obligation including any question by any court of law or tribunal, a person shall be guaranteed the right to fair hearing, and such tribunal or court must be constituted in such a manner as to ensure the dispensation of justice. To act on an ex parte order that the Chief Justice of Nigeria vacate his office and swear another without observing the principle of fair hearing which Justice Kayode Eso in his Obiter in Adigun v Attorney-General Oyo State (1987) 1 NWLR pt. 679 SC held that God observed the two pillars of fair hearing expressed in the Latin maxim, audialterampartemnemojudex in causasua, (meaning, hear both sides and no one can be a judge in his own case) before chasing Adam and Eve out of the garden of Eden, will constitute disregard for the rule of law which in the words of Aristotle is better than the rule of man.

President Buhari in his fight against corruption must ensure that due process of law is complied with. The President seems to always play into the hands of the opposition with the actions he takes. The swearing-in of another northerner simply validates the presumption held by many that Buhari is a tribalist.

Mr President has refused to note that Section 14(3) of the Constitution providing for federal character though non-justiciable is the only provision Nigerians hold in high esteem and the political game of Nigeria has yet to ripen into the point that tribe doesn’t matter but rather what matters is competency. My question still remains, was the President not properly advised before taking such an action considering the army of lawyers he is surrounded with particularly the Attorney-General of the Federation, Abubakar Malami? Whatever the intention of the President was in taking such a decision, the point remains crystal clear that he acted ultra vires and going by Lord Denning’s  much quoted obiter dictum in Benjamin MacFoy v United African Company Ltd(1962) AC 152 one cannot put something on nothing and expect the same to stand because it will surely collapse.

Integrity, accountability, and transparency must be restored in all arms of government especially the judicial arm but the rule of law must be complied with. Mr. President should kindly note that Nigerians are also asking questions concerning Babachir Lawal, his former Secretary to the Government of the Federation.