By Obi Nwakanma
The drama began two weeks ago, when the honorable Justice Walter Onnoghen, Chief Justice of the Supreme Court of Nigeria was issued summons by an inferior court, the Code of Conduct Tribunal, to appear before it on account of alleged gaps in his declarations of worth under the Code of Conduct requirements. This essay is not a defence of the Chief Justice, but it was presumptuous, and beyond the ken of the Code of Conduct Tribunal to summon the Chief Justice, who is the head of the judicial arm of government.
Constitutionalists asked, under what law can the Code of Conduct Tribunal summon a sitting Chief Justice of Nigeria? Lawyers who went to answer the summons on behalf of the Chief Justice argued before the tribunal president – and he is not a judge – that he has no such powers under the constitution. This tribunal, taking argument from both the Executive arm of government, under whose pressure this litigation was presumably entered by the Attorney General, and from the lawyers acting basically as “amicus curiae,” since the Chief Justice was properly advised not to appear before this inferior court, chose to proceed with the hearings, and issued fresh summons to the Chief Justice to appear before it. This is unheard of. Not because the Chief Justice is above the law, and he is not, but because even to the layman, there were procedural questions that made that order of the tribunal fraught and Illegal.
Now, as a pre-emptive action, lawyers representing both the bench and the bar, desirous of protecting the dignity of the Chief Justice, and authority of the law, sought relief from the Court of Appeal contesting the Tribunal’s orders. The Court properly suspended the summons on the Chief Justice. Matters might have ended there but for both the intent and the action of the chief driver of this case to remove the Chief Justice – the president of Nigeria – Mr. Muhammadu Buhari, using, or rather, misusing the office of the President of the Federation to do a hatchet job of the law. On Friday, 25 January, the president issued orders suspending the Chief Justice of the Federation, Mr. Justice Walter Nkanu Onnoghen, arguing that his action is supported by an order of the Code of Conduct Tribunal. Again, let me clarify this essay: it is not a defence of the moral worth of the Chief Justice of Nigeria, for he may very well be guilty of the infractions of which he has been accused; it is an argument that posits that the constitution has very clearly laid out the means by which a Chief Justice of Nigeria, either in failing health or failing in his conduct as judge, could be removed.
This president has circumvented that proper law, and thus this president’s action in suspending the Chief Justice is not only without grounds in law, and should be regarded as of no effect, but it is also a violation of his oath of office, to defend the constitution of the Federal Republic, and must be seen as act of “gross misconduct”. Mr. Buhari is intent clearly on forcing a constitutional crisis by pushing a bogus claim on power that might threaten the peace and stability of this republic. There is no provision for “executive orders” in the Nigerian constitution. In suspending Onnoghen and swearing in Muhammad Tanko, the president has opened up a vortex that might undermine Nigeria’s very fragile foundations. The president’s action is a brazen disregard of the constitution. It is an impeachable offence, and it is an action that amounts to “next level” stupidity, and here is why: the president knows that he has no such powers and he was properly warned that there is no constitutional basis for the power he appropriates and usurps yet he goes ahead to do it anyway.
The usurpation of power is corrupt use of power under the rule of law. But the rule of law very clearly is of little worth to this president, who still thinks that he is under some coverage of military or canon power. He squirms and suffers under democracy. Due process is too slow for him. He alone is the sole moral authority, and that is by his own estimation. He is the only one who, as he probably imagines it, who stands above the law to dictate its right legal direction. But the pace of law-making that makes Buhari impatient is precisely what Nigerians want, and it is called “Democracy.” It is founded on the “rule of law.” But being dismissive of the value of such a thing called democracy, Mr. Buhari has chosen to subvert the very constitution on which he was elected, and which he swore to protect and live by.
It is now a question of who embodies the law: the president, or the constitution? And there are still many Nigerians, like Dr. Itsay Sagay, who have continued to misguide a few ignorant Nigerians in his claim that the president has the power to suspend the Chief Justice. This level of ignorance or mischief by a learned Attorney of the Law, whom I once deeply admired, opens the question about whether Dr. Sagay is giving the president advise calculated to harm the presidency, or whether he is truly ignorant of the constitution of the Federal Republic. No wonder then, the University of Benin threw him out of the Deanship of Law of the University at yore. Mrs. Alele Williams, Vice-Chancellor then of the University in signing the decree ousting Sagay from the university, probably saw what the rest of us then, who had raised a loud outcry against the treatment meted on Saga, could not see.
Otherwise, how could such a man, who sought relief of the courts and got it, now be the emissary of its miseries on behalf of a president who breaks the law by not obeyiging court orders and judgments? How does Sagay sleep at night? How does he not understand that for a nation to be free of corruption it must be guided, and built on loyalty to the constitution – the rule of law and not to the rule of men? Muhammadu Buhari has, in attacking the sanctity and the dignity of the inner Temple of the Law, made his final stand in his attempt to subdue the last bastion of the democratic authority of the Federal Government of Nigeria. It should be clearly stated, that Muhammadu Buhari is not the Federal Government of Nigeria.
There are three branches of the Federal government: the Executive branch of which he is head, the Legislative branch under a bi-cameral structure, and the Judiciary, which is the Hermetic branch of that triune order. The Judiciary is like Hermes, at once the servant and master of the two branches of state. Each of these branches of the state, constitute the Federal government, and have powers delineated under the law of the federation that separates them equally, and makes the president, as head of the executive branch of state, only “primus inter pares” – first among equals. As coeval branches, nothing in the constitution gives one power over the other. It does seem clear therefore that Mr. Buhari’s purported “suspension” of Mr. Justice Onnoghen is an attempt merely at territorial invasion.
But a thick wall protects the Justice, and it is the wall of procedure. In the last week, many commentators have outlined how these procedures have not been followed. Here is what the president, were he to be acting in good faith could have done. On receiving the report that the Chief Justice failed to declare his assets as properly required by the law, the president should have written to both the National Judicial Commission, and to the National Assembly seeking an investigation of the Chief Justice. On receiving the letter, the Chief Justice would have been obligated to recuse himself, while under investigation by a panel of the NJC, and while the Judiciary Committee of the National Assembly does its own due diligence. On finding the president’s claims of moral turpitude against the Chief Justice true, the NJC would by its own process suspend the Chief Justice, and recommend his impeachment to the National Assembly, which afterwards, will forward a warrant to the president for his removal. That is the only means by which the Chief Justice can be removed because he enjoys inherent immunity by the virtue of his office. That immunity is not absolute and can be lifted only by his peers at the National Judicial Council. But in circumventing the law, and disregarding the rulings of the Court of Appeal, Mr. Buhari himself and his Attorney General have shown themselves to despise the constitution, and the legal process that stabilizes the state. They have acted in utter disdain of the Nigerian people, and must face sanction for attempting a coup aimed at subverting the legal foundation of the republic.
It is now incumbent on the National Assembly to begin an impeachment process against this president who has serially broken the constitution of Nigeria. As for Justice Muhammad, in acceding to be used for this illegality, the NJC must disrobe him, and seek his impeachment from the Supreme Court. The Nigerian Bar Association must commence the process to disbar the Attorney General of the Federation from further practice of the law, and in that move, remove him as the Attorney General of the Federation.
The law must fight back, and it has all the resources to defend itself. To pussy-foot on this, will destroy the Judicial branch permanently, and give grounds for the unctuous use of power. It is enough time handling this president with kid gloves. He must be countered with all capacities for deterrence.
To remove this president, by the righteous, legal, and constitutional means of impeachment, will save Nigeria from a serious crisis his extreme antidemocratic and illegal actions against the constituted authorities of government might result to. Word for the wise.