Mr. Abiodun Owonikoko, SAN has said that the trial of the Chief Justice of Nigeria CJN, Justice Walter Onnoghen is an egregious rape on separation of powers as entrenched in constitutional framework of Nigeria.
Reacting to a six-count criminal charge against the Chief Justice of Nigeria, over his alleged refusal to declare his assets Owonikok said: ‘Where did the disingenuous idea come from? Given the state of the law today , the charges are premature and misdirected . Nganjiwa v FRN is the last word on the due process to follow in properly seeking sanction against a serving judicial officer who is amenable to the disciplinary and supervisory powers of the national judicial council .
‘Allegations of judicial misconduct must be initiated by recourse to NJC in the first instance . But in the case of Heads of each of the three arms of GOVT – eventual trial which implicate their removal from office is by a purely political decision of the senate .
‘The rationale for reserving powers of removal of heads of each branch of government for a cause ( that is by reason of misconduct in the discharge of their offices ) is to ensure that such a weighty decision which carries serious nationwide consequences (both predictable and the unintended) is carefully reflected upon by those elected representatives . They are unique in our polity because they serve as barometer and sounding board of the public opinion in their various constituencies across the country and they aggregate the political tendencies that shape the polity . In every likelihood they are expected to consult widely in their eventual decision by 2/3 of theirs absolute number .
‘Hence the President of Nigeria or his vice ,(being heads of the executive arm ) ; the senate president or his deputy and the speaker of the National Assembly or his deputy ( being heads of the legislative arm) and instructively, the Chief Justice of Nigeria as well as President of the Court of Appeal ( being heads of the judicial arm of government ) can only be removed by a super majority (2/3) of the senate or house of reps . Not by court ; certainly not by Code of conduct tribunal.
‘People may be too quick to forget history , but I will have us recall that this constitutional insulation of the identified . heads of judicial branch was the bulwark against unceremonious dismissal of Hon Justice Isa Ayo Salami , Erswhile President of Court of Appeal (PCA). Jonathan administration despite its desperation to be rid of that jurist ( and in its famed cluelessness ) still had the good sense to realize that without 2/3 of of the senate the coup was bound to stalemate . So all it did was to act on decision of NJC ( controversial thought) which suspended the PCA pending when the Senate would conclude the process and thus appoint Adamu JCA (now late ) as the most senior serving Justice of Court of Apoeal to serve as acting PCA for renewable three months tenure .
‘Eventually , the coup was caught in the transition that led to emergence of this present Buhari-led APC government , by which time Salami PCA reached constitutional retirement age and was accorded a glorious exit and honorable discharge from office as PCA .
‘The scenario about to be re-enacted with the gambit of charging the incumbent CJN to court for alleged false assets declaration does not appear to have learnt any lesson from the doomed precedent recounted above .
‘To arraign the sitting CJN my lord , the Hon Justice Walter Onnoghen for offenses that impugn his suitability to continue to occupy his office with a view to his removal is , I dare say and with no regrets whatsoever , an egregious rape on separation of powers entrenched in our constitutional framework as nation . It traduces the hallowed independence of the Judiciary. It is a tendentious usurpation of the powers exclusively vested in the senate by our constitution from which all legitimate exercise of governmental powers derives validity and justification – a coup against the constitution bordering on “judicial treason” by which I mean a design to overawe the judicial arm of government.
But behind arcane refuge under constitutionalism. ; it does not bode well for political exigencies and public trust in the capacity of incumbent regime at the Centre . A properly functioning federal executive authority ought to be comfortable in the habit of refraining itself from eroding public confidence in its ability to accept the healthy uncertainties which a free and fair and exciting general election should portend for all sides including adjudication of disputes that naturally arise from it .
‘I hope the executive arm of government soonest retraces its step in this matter in the overall best interest , orderly existence and peace of the country . One must fear for the prospects of a hung judiciary where members at the highest level are polarized in pledging allegiance to the leadership arising from the threatened arraignment of a sitting Chief Justuce for crimes in a court of sub-subordinate jurisdiction whose eventual decision may not be conclusive until tested on appeal at the same Supreme Court . Executive Caution and restraint is the phrase we cannot too sufficiently plead in the circumstances.’