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Proposed arraignment of Justice Onnoghen: Again I say two wrongs do not make a right – Afe Babalola

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By Afe Babalola, SAN
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, the D.S.S invaded the homes of some Judicial officers, including Justices of the Supreme Court in the middle of the night on allegations of corruption.

Chief Justice of Nigeria (CJN) Justice Walter Samuel Nkanu Onnoghen

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 Judgement 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


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:

  1. (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.


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