By Innocent Anaba and Henry Ojelu
With the controversy trailing the suspension of the Chief Justice of Nigeria, CJN, Justice Walter Onnoghen by President Muhammadu Buhari on the strength of a Code of Conduct Tribunal, CCT, ex-parte order and the swearing in of Justice Tanko Muhammad, as the acting CJN, yet to die down, many issues have continued to play out.
Mr Tayo Oyetibo, SAN, in his advice to the National Judicial Council, NJC, before its meeting of January 29, posed several questions which he believes holds the answer to the constitutional issue facing the country.
“In the face of the serious allegations of infraction of the Code of Conduct for Public Officers, should Onnoghen still continue to sit over cases that come to the Supreme Court which might include cases involving violation of the Code of Conduct?
*Was the conduct of the Chairman of the CCT in purporting to issue on January 23, 2019, an ex-parte order for the suspension of the CJN, after having adjourned the proceedings on January 22, 2019 to January 28, 2019 in accord with the provisions of Rule 212) already set out above and Rule 2 (5)(i) of the Code of Conduct for Judicial Officers which requires the judge to hear the other side before making such an order.
*Was it right for Justice Muhammad to have presented himself to the President to be sworn in as acting CJN to supplant the incumbent CJN, when it was clear from the provisions of section 292(1) and paragraph 21(b) of the Third Schedule to the 1999 Constitution and decided cases that only the NJC has constitutional power to exercise disciplinary control over the CJN?
He noted that in dealing with this particular issue, the NJC should bear in mind the precedents of the 2006 Ekiti State Judiciary episode and the recent Abia State Judiciary incident.
Interestingly, the NJC in a statement after its January 29 meeting disappointed many Nigerians, who had expected perhaps a punchy response to the breach of Section 292 of the Nigerian Constitution by the president, which expressly provides that “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 –”Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High 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.”
The NJC after its January 29 emergency meeting, meanwhile, gave Justice Onnoghen and Justice Muhammad, seven working days to respond to petitions filed against them, while it referred the petition against CCT Chairman, Danladi Umar to the Federal Judicial Service Commission, FJSC and fixed February 11, 2019 to reconvene.
Interestingly, no position was taken on President Buhari, who it was that caused the major breach, with the way and haste the executive pursued Onnoghen’s case and in turn, failed to follow due process.
The posers raised by Oyetibo, SAN, were parhaps conveniently skipped by the NJC, as the major issues agitating members of the legal community and ordinary Nigerians were not touched.
Though it may be argued that the matter is in court, as the Senate had gone to court, it’s however, clear from the position of the constitution that the only body vested with the power to call the president to order is the NJC, which ought to have put its foot down and rightly direct a return to status quo until matters are resolved.
According to the NJC, the petition against Justice Onnoghen was by Zikhrillahi Ibrahim of Resource Centre for Human Rights & Civil Education; Petition against Justice Ibrahim Muhammad, by Centre for Justice and Peace Initiative; Petition against Justice Muhammad, by Olisa Agbakoba, SAN, and petition against Mr Danladi Umar, Chairman, Code of Conduct Tribunal by Centre for Justice and Peace Initiative.]
This is coming as former President of the Nigerian Bar Association, NBA, Dr Olisa Agbakoba, SAN, has petitioned the Chairman of CCT, Mr. Umar to the NBA’s Legal Practitioners Disciplinary Committee, urging that his (Umar) name be struck out of the Roll of Legal Practitioners in Nigeria for violations of the Rules of Professional Conduct.
Agbakoba in the petition against Umar said: “On January 14, 2019, the CCT of which Mr. Danladi Umar is Chairman assumed jurisdiction in a matter against the Chief Justice of Nigeria, CJN, Justice Walter Onnoghen knowing the CCT had no jurisdiction in view of CCT’s own decision in the case of Justice Sylvester Ngwuta which also involved Asset Declaration.
“The Court of Appeal in Nganjiwa v. FRN (2017) LPELR-43391 (CA) held that allegations of misconduct against a serving judicial officer must first be referred to and handled by the National Judicial Council, NJC. It is only after the NJC had entertained and made a finding or pronouncement on the allegation against a judicial officer and recommended to the President or Governor as the case may be, the removal of such judicial officer, and the recommendation is accepted and acted upon by the appropriate authority, that the prosecuting agencies of the Federal Government can proceed against such judicial officer to make him face the full wrath of the law.
“Mr. Danladi Umar knew the state of the law yet acted otherwise. Mr Umar’s misconduct has created a constitutional crisis and brought great embarrassment to the legal profession.
“On January 23, 2019, the CCT of which Mr. Danladi Umar is Chairman issued an ex-parte order which on its face is clearly defective having not set out on record the counsel that made the application. This gives the impression the CCT may have drawn up the application on itself. This led the President of Nigeria to purportedly suspend the CJN, Justice Onnoghen and purportedly appoint an acting Chief Justice of Nigeria, Justice Tanko Muhammad, as the acting CJN.
“Mr Umar’s misconduct has created a constitutional crisis and brought great embarrassment to the Legal profession.
“The Chairman of the CCT, Mr. Umar is on trial before the Federal High Court of the Federal Capital Territory, Abuja for allegedly demanding a bribe of N10 million from one Mr. Rasheed Taiwo in 2012. The alleged demand was made in relation to a case (CCT/ABJ/03/12) involving Mr. Taiwo, an offence contrary to Section 12(1) (a) and (b) of the Corrupt Practices and Other Related Offences Act, 2003.
“The Chairman of the CCT, Mr. Umar not being a judicial Officer is subject to the Legal Practitioners Disciplinary Committee. In the light of these violations of the Rules of Professional Conduct, we pray the Legal Practitioners Disciplinary Committee direct that the name of Mr. Umar be struck out of the Roll of Legal Practitioners in Nigeria.”
On the January 23, 2019, ex-parte order, granted by Umar, another lawyer, Abiodun Owonikoko, SAN, had narrated the same thing, that the CCT had a day earlier, January 22, adjourned to January 28 to rule on arguments on a similar application, and said he was at a loss, how Umar a day after granted the same application ex-parte.
The propriety or otherwise of Buhari’s action has continued to elicit reaction, with some prominent lawyers, arguing for and against. Two prominent lawyers, Prof. Itse Sagay, SAN and Chief Robert Clarke, SAN, support wholeheartedly the action of the President.
Stating his support for Buhari, Chief Clarke had said: “There there are two sides to the saga that is playing out, the legal and the political side. The legal side to CJN’s case is that due process was not followed before taking him to the Code of Conduct Bureau, CCB. One will not think that the Federal Government or the Attorney- General is naive to know the position of the law as of today, before arraigning Onnoghen before the CC Tribunal. I took the matter to the Lagos High Court but it was rejected. I then took it to the Court of Appeal, where a ‘profound’ finding as to the due process to be taken when you want to arraign a sitting Judge, should be.
“On political side of the case, there is no way the Federal Government can make you and I know that a judge has so many accounts, has so much money in those accounts and has been operating those accounts. So, the only way they can bring this out to us is to follow this route that they have followed. While this is not the right route, there is a method in going through this path. They know they are not going to get success but they still want to inform you and I and the public that this is the rot in the Supreme Court; you and I must know.”
Prof. Sagay, also in support had said: “It is constitutional. If you look at Section 292 of the constitution, paragraph 1 clearly makes provision for that where the Chief Justice is guilty of a code of conduct.
“The provision is very clear. It states that where the Chief Justice is guilty of a breach of the code of conduct, he can be removed by an address of two-thirds majority of the Senate. It is quite clear that the Senate itself cannot initiate that address; there is only one person who can do that and that is the President.”
Disagreeing, Agbakoba, SAN, said: “This is the worst possible violation of Nigeria’s Constitution ever and a perversion of justice and the rule of law for the president acting in pursuance of orders from an inferior tribunal, namely the CCT, to suspend the CJN.
“This has raised major constitutional crisis and the Bar will hopefully resist this brazen assault to our Constitution. All Nigerians should feel assaulted by President Buhari’s illegal action and I urge that we take the strongest possible action to prevent Nigeria’s rapid descent to Constitutional impunity. Judges and lawyers must withdraw services until this is resolved.”
Also expressing his disagreement with the president’s action, Mike Ozekhome, SAN, said: “There is no known basis, legal, constitutional or moral, to hurriedly bypass courts of law, the judicial process and court orders, to illegally remove the CJN and swear in an Acting CJN.
The provisions of section 292(2) of the 1999 Constitution are quite clear on how the CJN can be removed from office. Aside sections 153,158 and parts 1 and 2 of the 3rd schedule to the Constitution which provide that a judicial officer cannot be removed from office until he has first been tried and dealt with by the NJC, section 292(2) makes it clear that the president can only remove the CJN from office before the age of his retirement,”acting on an address supported by two-thirds majority of the Senate.”
When did the Senate meet to donate this power to the president? Never! The president has illegally and unconstituonally stripped both the judiciary and the Legislature bare of their constitutional functions,usurped their powers and enthroned maximum dictatorship over the affairs of Nigeria,like Louis X14 once did when he stood in front of parliament, beat his chest imperiously and declared:”l’est tat c’est moi”(I am the state).
The Nigerian Bar Association, NBA described the development as a step towards anarchy and demanded its immediate retraction. The body said: “It is unfortunate that the Executive Branch of Government purports to suspend the CJN on the basis of an alleged ex-parte order of the Code of Conduct Tribunal – the same Tribunal that, to the knowledge of the Executive, had, only the first previous day, January 22, 2019 adjourned its proceedings to January 28, 2019 and has before it a Motion on Notice that is yet to be argued, seeking the same reliefs as were contained in the purported ex-parte application, to wit, the state capital suspension of the CJN, amongst others.
“We call on the Federal Government to avert the looming constitutional crisis precipitated by its ill-advised action. In particular, the Nigerian Bar Association demands the reversal of the purported suspension of Justice Onnoghen, We also call on the National Assembly to assert its constitutional authority and powers and prevent this slide into chaos and erosion of the rule of law.
It is also important to note that the former President of the Court of Appeal’s matter, Justice Ayo Salami is different from Onnoghen, as he refused his elevation to the bench of the Supreme Court. His matter was rightly handled by the NJC. It was the NJC that sanctioned the actions taken against him eventually by the government in power then.
Despite the contrasting opinions, section 292 of the Constitution which deals with the removal of the CJN, does not distinguish temporary removal (suspension) from a permanent removal (sack). Below is the law as reproduced verbatim from the Constitution:
“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 – “Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High 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.”
That is the law today.