NJC must first investigate—Afe Babalola
By Innocent Anaba
The National Judicial Council, NJC, meeting scheduled for tomorrow may be overshadowed by the case of the Chief Justice of Nigeria, CJN, Justice Walter Onnoghen, who is expected to appear before the Code of Conduct Tribunal, CCT, today, over allegation of false declara-tion of assets, Vanguard learned last night.
Justice OnnoghenA member of the council confirmed to Vanguard, last night, which the meeting will hold tomorrow.
This is even as reactions have continued to pour in against move by the Federal Government to charge the CJN before the CCT.
Onnoghen is the second Supreme Court Justice to be charged to CCT. The first was Justice Sylvester Ngwuta, who was, however, cleared of the charges of false declaration of assets.
Meanwhile, the constitution has an express provision on how the CJN and other heads of courts in the country can be removed.
Section 292 of the 1999 Constitution, as amended, on the removal of the CJN provides states that a judicial officer shall not be removed from his office or appointment before his age of retirement, except in the following circumstances:
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.
It was not clear at press time if a letter had been sent to the Senate by the Federal Government, demanding the removal of the CJN over the pending charge against him.
The functions of the NJC as provided in Paragraph 21 of Part One of the Third Schedule to the 1999 Constitution, states that the NJC shall have the power to:
Recommend to the President from among the list of persons submitted to it by the Federal Judicial Service Commission, persons for appointment to the Offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and the Judicial Service Committee of the Federal Capital Territory, Abuja; persons for appointment to the Offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, and the President and judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;
Recommend to the President the removal from office of judicial officers specified in sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers.
My security intact—Onnoghen
Meanwhile, Walter Onnoghen has refuted media reports that security officers attached to him were withdrawn ahead of his proposed trial.
Onnoghen’s Special Assistant on Media, Awassam Bassey, dismissed the reports in a telephone interview with Premium Times last night.
Bassey, who said he was with the CJN till late afternoon yesterday, said Onnoghen attended a public function yesterday, “in company of his usual security aides.”
“I was with him through this (yesterday) afternoon. We had attended the special Sunday service for the Armed Forces Remembrance Day. His security officers were there. None of them has been changed or taken away,” Mr. Bassey said.
He said the social media had been awash with various information regarding his boss, adding that most were fake news.
Lawyers, who reacted to the development, cited the recent decision of the Court of Appeal in the case of Justice Nganjiwa v Federal Republic of Nigeria, noting that no criminal charge can be laid against a judicial officer, including the CJN, in any court of law without first filing such complaint before the NJC.
Afe Babalola reacts
Afe Babalola(SAN), said: “I have just received news of the proposed arraignment of the Justice Walter Onnogen, Chief Justice of Nigeria before the Code of Conduct Tribunal on allegations of failure to fully declare his assets.
“Without mincing words, I am as taken aback at this development in the same way as I was when not too long ago, DSS invaded the homes of some judicial officers, including Justices of the Supreme Court in the middle of the night on allegations of corruption.
“However, despite the similarity between the two events, two things place this latest development above the previous one in terms of ignominy namely; the status of the Chief Justice of Nigeria as the head of the judicial arm of government and the fact that since the invasion and the rash of prosecutions that were instituted against some judges, the Court, via the judgment of the Court of Appeal in Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391(CA)has since stated firmly the procedure permitted by law when allegations of misconduct are made against judicial officers.
Disregard for constitutional provisions
“In my reaction to the previous invasion of the homes of judges, I referred to an article entitled Guarding the Guardians: Judicial Council and Judicial Independence, published by the Law School of the University of Chicago, which reads as follows: judicial councils are bodies that are designed to insulate the functions of appointment, promotion, and discipline of judges from the partisan political process while ensuring some level of accountability.
“Judicial councils lie somewhere in between the polar extremes of letting judges manage their own affairs and the alternative of complete political control of appointments, promotion, and discipline…The motivating concern for adoption of councils…was ensuring independence of the judiciary after periods of undemocratic rule. To entrench judicial independence, most…countries enshrined the judicial council in their constitution.
“I also stated that: It is for this reason that the 1999 Constitution in section 153 provides for the establishment of the National Judicial Council and in paragraphs 21(b) & (d) of the Third Schedule grants to the Council the power to exercise disciplinary control over judicial officers. As the allegations made against the judges are said to arise from or pertain to their office as Judges, I am of the view that the Constitution requires that any infraction by the said Judges be firstly investigated and resolved by the National Judicial Council, NJC, to the exclusion of any other body or authority.
“Happily, the views expressed by me were eventually upheld by the Court of Appeal in Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391(CA). That decision still subsists and has not been set aside.
“I, therefore, see no justification for the decision to arraign the CJN before the Code of Conduct Tribunal. Again the point must be made clear that the Constitution clearly provides for the procedure with which the Chief Justice of Nigeria can be removed from office. Section 292(1)(a)(i) and 292(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) provide as follows: 292. (1) 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 (i) 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.
“(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.
“Thus the point can even be made, that unlike other judicial officers who can be removed by the President acting upon the recommendation of the National Judicial Council, the Chief Justice of Nigeria can only be removed by the President upon receipt of an address supported by two-thirds majority of the Senate.
“Given that the above provisions are clear, it becomes more worrying to learn that aside from laying the proposed charges, the prosecution has also filed an application seeing an order directing the CJN to recuse himself from office pending the conclusion of the trial.
“On the whole, the entire episode is one that unfairly denigrates not only the Judiciary, but also the Constitution of the land. By proceeding as proposed, the government is unwittingly or perhaps deliberately a wrong impression in the minds of millions of Nigerians that the Judiciary is a criminal organisation. For the sake of our democracy this is a misconception that must not be allowed to fester.
“No country, no matter how well intentioned its political leaders are, can aspire to greatness if its judicial arm is denigrated and held in contempt. While the Judiciary itself must be awake to its huge responsibilities, its efforts in this regard will surely not be helped by the erosion of its independence.”
Another SAN, Mr. Abiodun Owonikoko, 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 government, eventual trial, which implicates 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.”
Rights activist and lawyer, Mr. Ebun-Olu Adegboruwa, on his part, said: “On January 13, the nation was informed of a pending six-count charge against Justice Onnoghen, before the Code of Conduct Tribunal. It is expected that the CJN will be arraigned on Monday, January 14. The basis of the charge is alleged failure by the CJN to declare his assets.
“By section 36 (4) of the 1999 Constitution, a citizen who is charged with a criminal offence must be taken to the appropriate forum with the requisite jurisdiction to try the offence, be it a court of law, a tribunal or such other quasi-judicial organ.
“By section 153 (1) (i) & (2) of the 1999 Constitution, the National Judicial Council, NJC, was established for the Federation of Nigeria. By Paragraph 20 (b) of Part 1 of the Third Schedule to the 1999 Constitution, the NJC shall ‘exercise disciplinary control over’ all judicial officers, including the CJN.
“The NJC is the appropriate forum to first raise any matter against any judicial officer, including the CJN. Thus, the NJC has exclusive jurisdiction over all judicial officers, including the CJN.
“By the decision of the Court of Appeal in Ngan-jiwa v Federal Republic of Nigeria, no criminal charge can be laid against a judicial officer, including the CJN, in any court of law, without first filing such complaint before the NJC.
“The Code of Conduct Bureau, CCB, and the Code of Conduct Tribunal, CCT, are both part and parcel of the Federal Republic of Nigeria and are bound by the decision of the Court of Appeal in Nganjiwa v FRN.”
Also, Convener, Access to Justice, Mr. Joseph Otteh and lawyer, said: “This prosecution, for the records, is unprecedented. No Chief Justice of Nigeria, before now has been charged in a court of law for any offences. Chief Onnoghen is head of the Nigerian judiciary, and whenever a government moves against the head of a judiciary, if the lessons of history teach us something, it is often a red flag.
“Without going into the merits of the alleged charges against the Chief Justice, Access to Justice is very concerned about the unnerving circumstances surrounding how the case was stringed together by the accusers and the motives of the government seen through its response to the complaints.”
There is extraordinary evidence of back-stage collusion between government and the protagonists of the complaints (evidenced, for example, by the unprecedented haste with which the Code of Conduct Bureau has acted on the petitions), and well-founded fears that the prosecution is politically- motivated and is targeting strategic influence over how an incumbent Chief Justice exercises the roles of that office in the up-coming elections.
“Everything about how this case was orchestrated and put forward smells foul – the alleged links between the petitioners and the President, the amount of personal information of the Chief Justice made available to the petitioners, the implacable haste with which the Code of Conduct Bureau acted on the petitions, giving no reasonable time to conduct credible forensic investigations into them – all point to one conclusion- the pursuit of an agenda to remove Chief Onnoghen from office, whether temporary or permanently in preparation for whatever may be the fall-outs from the 2019 elections, than to redress whatever infractions the Chief Justice may have allegedly committed. Apparently, that agenda has the backing of the echelons of power. The motive is corrupt from the word go and will pitch many of those who want to see a more transparent judiciary against the move. Overall, this prosecution will be cast as an invidious effort to undermine judicial independence and interfere with the adjudication of election cases, which, really, is what it appears to be more than anything else.”
Another lawyer, Mr. Israel Mbaebie, said “Constitutionally, any judicial officer accused of any criminal offence or gross misconduct may only be prosecuted after the said judicial officer had first been referred to the NJC which may (if an act of gross misconduct is established against such officer) then in turn recommend the arraignment of such erring officer.
“It is therefore, a cocktail of the most bizarre and absurd to observe the present purported arraignment of the Chief Justice of Nigeria without first referring his case to the National Judicial Council, NJC. This is indeed another fascist move by the Buhari led administration to ridicule the judiciary which he had demonstrated in more ways than one prior to this time.
“Nigerians have not forgotten in a hurry how a few years ago, Buhari had invaded the homes of our serving justices of our superior courts in gestapo like manner in the middle of the night and bundled His Lordships as common criminals. Buhari is at it again.
“Note that this is coming on the heels of the Presidential elections. The CJN is the only judicial officer constitutionally saddled with the powers to constitute Panel of Supreme Court justices to preside over a possible Presidential Election Panel to hear any possible election petition on the election results.
“The present move is aimed at weakening the judiciary; remove the substantive CJN; appoint Buhari’s puppet as CJN who would in turn appoint other Buhari puppets to preside over the Presidential Election Petition Panel. Remember, Mr. President never supported/liked the emergence of the present CJN as he is not part of his cabal since he came from the South-South.
“I foresee an implosion of the system should Mr. President rig the coming election and proceeds to manipulate the judicial process. If there’s any time that Nigerians and the international community need to speak out and speak up, that time is now.
‘’Silence may not be golden any more. Buhari has tried this manipulation and weakening of the judiciary before and failed. He will still surely fail this time around.”