Justice Walter Onnoghen
By Muhammed Adamu
THEY say that geo-politics and ethno-religious considerations, not the fight against corruption, are at the root of the attempt to remove the Chief Justice of Nigeria CJN, Justice Onnoghen, -by bringing him to trial over allegation of false declaration of assets.
They insist that the trial is merely a smokescreen for an ill-motivated plan to execute an executive coup de tat against the judicial arm of government.
That the aim is to remove a South-Southern Chief Justice whose tenure has not expired, and to replace him with a core Northerner, Justice Mohammed Tanko.
And the theory, according to the opposition PDP, is that since the APC –by all indications, they say- will be incapable of freely and fairly winning the forthcoming general elections, the only possible way it can secure a second term therefore, is if it rigs the elections. Plus, they say that all the indications are there that the APC does plan to rig, especially the Presidential election.
What with the President refusing to sign a new electoral law legitimising the use of Card Reader and introducing the transmission of results electronically -rather than manually?
What with the fact that he was also not initially disposed to removing a ‘partial’ Inspector General of Police, Idris because the President was planning to use him for partisan interest? And what with the President now suppressing dissent, including clamping down on press freedom?
And they said that if the president must rig, he would then require to prepare the necessary condition for a regime-friendly Judiciary that would validate his victory, but that Onnoghen, as Chief Justice who would constitute the election petition tribunals, is the most unlikely, given especially his geo-ethnic background, to be disposed to playing the judicial cat’s paw ready to pull APC’s electoral chestnuts out of the political fireplace of petitions that are sure to dog the heels of the 2019 elections.
The assumption here is that: either Buhari’s APC is truly unsure of victory at the election and will require to act to preempt a favourable role of the Judiciary in legitimising its rigged victories or that even if it is sure of victory in a ‘free and fair’ election which it promises to allow, the APC may still require the superintendence of an upright, unbiased Chief Justice to constitute impartial tribunals to uphold its hard-earned victories.
They say that the APC neither believes that Onnoghen is upright enough to do that; nor, with a money-bag Atiku in the fray, does it believe that he has not already sold to the opposition PDP. Or was Ononghen not the head of the Judicial Panel that helped to free the Senate President, Saraki from the clutches of the same Code of Conduct Tribunal on similar charges of false declaration of assets?
Or was he not part of the Supreme Court panel that overruled the Administration of Criminal Justice Act, ACJA, on interlocutories/stay of proceedings in favour of Saraki? And now with such exposed ‘dollarised’ accounts inconsistent with the earning capacity of the new Chief Justice, there definitely must be something rotten in the State of Denmark.
And maybe all these assumptions and presumptions are true. Or maybe they are not. Maybe there is an executive ‘motive’ behind the arraignment of the Chief Justice.
Maybe there is not. But why must we dissipate partisan and sectional energies in search of ‘motive’ to explain away a legal wrong, when we should simply submit to the due judicial process in search of ‘law’ and ‘fact’ so as to arrive at justice? The search for ‘motive’ cannot supplant the inquisitorial due process for the determination of guilt or the finding of innocence.
Notwithstanding the presumed motive or ill-intention of the Executive arm, there is a case before the courts! And as far as judges and lawyers should be concerned the question is: ‘has the Chief Justice breached the law?’ A single lawyer will be more justified to answer this in court than a thousand SANS morally will be, who cartel to put a clog in the wheel of justice.
The court will not ask whether the Executive has a ‘motive’ in bringing the matter; because courts are presided over by judges of ‘law and fact’, not of ‘motive’ and ‘motivation’. And maybe it is the reason that even the law of evidence does not reckon with ‘motive’ as proof of guilt or of innocence.
Nor will the absence of ‘motive’ to cheat during asset declaration be proof that Justice Ononghen has not breached the law –if the facts show that he has. The liability here is as strict as when a road user commits a traffic offence.
You do not search for a ‘guilty mind’ (mens rea) when a driver beats the traffic light, because it is sufficient by law that he beat the traffic light. Not having intended to do it is immaterial to the fact that he did it. Nor should the police be inquisitioned on the ‘motive’ for apprehending him other than the obvious intention, as officers of the law, to fulfill the end of the administration of justice.
And so to say that the National Judicial Council, NJC has disciplinary jurisdiction over judicial officers who commit crimes or that it decides whether or not a judicial officer who commits a criminal offence should be arraigned before a court is to arrogate to the NJC the powers and status of a court which it has not. The NJC has jurisdiction only over judicial officers who commit judicial misconduct in the course of their judicial duties. The commission of a crime, which any false declaration of asset is, cannot be said to be part of that judicial duty.
Besides, the requirement for declaration of asset as provided for by the 5th Schedule of the Constitution has not made the obligation to do so incumbent only on ‘Judicial officers’ but all ‘public officers’ failing which the Constitution has empowered the Code of Conduct Bureau to prosecute.
And so concerning a breach of the asset declaration code, offenders are treated not in their capacity as ‘judicial officers’ misconducting in the course of their judicial duties, but in their capacity generally as ‘public offers’ breaching the Constitution. Sections 12 and 18 of the Schedule are clear on that.
The inability of the National Judicial Council to discipline judicial officers who commit criminal offences or to decide whether or not to send them to court, is no less poignant now in the case of an offending Justice Ononghen than it was a few years back in the case of Justice Ayo Salami that the NJC was bent on criminalising.
Salami was first accused of perjury (lying under oath against the then CJN, Katsina-Alu, who the Council was determined to exonerate from the allegation of judicial interference with intention to pervert justice).
When it became obvious that ‘perjury’ was a criminal offence and that only the court -and not the NJC- had jurisdiction to entertain, the Council reverted to an indictment consistent with its disciplinary powers and accused Salami of violating the Code of Conduct for Judicial Officers by granting a press interview without authorisation.
Now even in doing this, the NJC had disregarded the fact that none of the panels that it had set up to probe Salami had interrogated him on that allegation.
Yet, it was on the basis of this trifling offence –and thus without the fundamental benefit of ‘fair hearing’- that the NJC had proceeded to recommend Salami’s suspension to President Jonathan who, without a moment’s hesitation, was only too happy to approve, because he believed this was the Salami, as Head of the Court of Appeal, that was responsible for the judicial loss of PDP’s Edo and Osun states to Tinubu’s AD.
And it is interesting to note that self-righteous lawyers like Agbakogba and others were in fact members of the NJC when this travesty of justice was committed against Salami.
By the way, as the discretion to arraign Salami on the offence of perjury would’ve been that of the A.G. to exercise, the same today, concerning Onnoghen, is that of a prosecutorially-empowered Code of Conduct Bureau to exercise -without recourse to the NJC.