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The persecution of Justice and the end of democracy

By Obadiah Mailafia

THE news came as a shock to some of us that  the Chief Justice of Nigeria, CJN, His Lordship Justice Walter Onnoghen, is to appear in a court on charges of non-declaration of assets. He is also accused of allegedly operating some dozen bank accounts containing varying amounts of local and international currencies. He is expected to hand over the reins of office to the second most senior colleague as he goes on trial. There has been no precedent for a serving justice being compelled to appear in a lower court to answer charges for a misdemeanour, real or imagined.

When Chief Justice Mahmud Mohammed was retiring in November 2016, his successor was supposed to have been announced immediately. This was never done. There were rumours that the government was not comfortable with his presumed successor according to our de facto “seniority rule” for succession in the Supreme Court.  There had been a whispering campaign that he was “corrupt” and unfit for the exalted office of CJN. Walter Onnoghen, the presumed successor, took over in acting capacity so as to avoid a vacuum. He continued acting until March 6, 2017, when he was confirmed as substantive Chief Justice by Acting President Professor Yemi Osinbajo. President Buhari had been away on sick leave. And given that the rules forbade him from acting beyond a certain time limit, Osinbajo chose to confirm him. Apparently, the decision did not go down well with certain powers.

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Section 21(3) of the Third Schedule of the 1999 Constitution confers on the National Judicial Council, NJC, the powers to recommend to the executive the appointment, discipline and removal of judges. A 2009 landmark judgment by a Federal High Court in Ilorin reversed the sack of the Chief Judge of Kwara State, Justice Raliat Elelu-Habeeb who had been relieved of her post by the State Government. The judgement by Justice Bilikusu Bello determined that the NJC should have been brought into the matter and declared the actions of the State Government to be a nullity. The dismissed judge had to be reinstated.

We are perplexed as to why the Code of Conduct Bureau did not bring these charges earlier on, until now. The timing is patently rather suspect. We are in an electoral-political cycle in which the stakes are high. We are under the impression that the government in power is desperate to reposition key personnel in such a manner as  would help them rig the elections. Hence the appointment of Amina Zakari as INEC chief collating officer. Even if she was not related to the president, the fact that she comes from his geopolitical zone lives a rather bitter taste. The prosecution of a serving Chief Justice at this time could similarly be interpreted as a way of hounding him out and repositioning the high judicature to ensure that they have a Chief Justice who can give a favourable judgement should matters end up in court. Onnoghen’s presumed successor is an expert in Sharia law who comes from the President’s “catchment area”.

Walter Samuel Nkanu Onnoghen CJ may or may not be guilty of the offences he is being charged with. The issue is whether such a public display is the best way to resolve a delicate matter with respect to a serving Chief Justice. The timing and the approach smack of judicial persecution. Of course, nobody is above the law. There are times when judging the judges is an imperative necessity for the upholding of the rule of law. But we must do it with equity and justice, not in the manner of barbarian hordes.  Removing a Chief Justice is not a small matter. It is a decision that one approaches with fear and trembling.

In our own case, there has been only one episode when a serving Chief Justice was summarily relieved of his post. I am referring to the case of Justice Taslim Olawale Elias who was removed by the Murtala/Obasanjo military dictatorship in 1975. Of course, a military regime can sack any public officer who has the misfortune to incur their wrath. But it would be a moral and political catastrophe; for a democratic government, it is worse. Taslim Olawale Elias was the greatest jurist this country has ever produced. The humiliation he received in the hands of the military did not keep him down. He went on to be a judge of the International Court of Justice at The Hague, and eventually, its President. An oracle of great learning and erudition; he was an ornament of the legal world.

Other jurisdictions where higher judicial officers have been hounded and persecuted include Nkrumah’s Ghana and Idi Amin’s Uganda. When President Kwame Nkrumah took the decision to summarily dismiss the Chief Justice of Ghana, Sir Kobina Arku Korsah in 1963, his closest and most trusted advisers warned him that it was a calamitous decision. He would not listen. The removal of Justice Arku Korsah marked the end of the rule of law and democracy in Ghana. It diminished the legitimacy of the government and weakened the moral authority of the regime until it was brought down with ignominy.

A more sordid example is the case of the removal and execution of Chief Justice Benedicto Kiwanuka by the murderous Idi Amin regime in Uganda. Appointed head of the apex court in June 1971, he soon came into headlong confrontation with the brutal regime. In early 1972, he was arrested at the premises of the Supreme Court in Kampala and despatched to the notorious Makindye Military Prison. According to eye witnesses, on 22 September 1972 Benedicto Kagimu Mugumba Kiwanuka was assassinated, in a prolonged execution which involved “ears, nose, lips, and arms being severed, a disembowelling, and castration before he was finally immolated”.

Anyone who loves our country and wishes our democracy to survive must urge the government to exercise the highest restraint on this matter of Onnoghen CJ v Code of Conduct Bureau.

Having said this, let me make it clear that I am not in favour of the “the seniority rule” under which Onnoghen became CJN. It is a patently bad policy that ensures the reign of mediocrity in the highest judicial office in our land. In the past it was not like that. The T. O. Elias that I referred to earlier was brought in from the University of Lagos where he was pioneer Dean. He had served as Attorney General before being appointed Chief Justice. Like medicine  and other professions, there should be no real distinction between academic and practical law. The so-called seniority convention that we have at present is a recent invention which does not serve the public interest. The high judicature is not a civil service where “seniority” matters more than competence. In many Commonwealth jurisdictions, the doors are always thrown open to get the best judicial brains to serve as judges.

There is also the financial cost of such a rapid turn-over of judges. The last eight Chief Justices have been: Mohammed Lawal Uwais, 1995-2006; Salihu Modibbo Alfa Belgore, 2006-2007; Idris Legbo Kutigi, 2007-2009; Aloysius Iyorger Katsina-Alu, 2009-2011; Dahiru Musdapher, 2011-2012; Aloma Mariam Mukhtar 2012-2014; Mahmud Mohammed, 2014-2016; and Walter Onnoghen, 2017 to the present. One served for less than a year. Another has served for barely a year. The average has  been two years. As an economist, I would look askance at the financial costs of such a rapid turn-over which is not favourable to the national treasury or the taxpayer.

 


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