Editorial: Buhari’s Unacceptable Assault on the Judiciary

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If nothing else, the planned arraignment of Justice Walter Onnoghen, Chief Justice of Nigeria, (CJN) at the Code of Conduct Tribunal (CCT) over charges bordering on alleged failure to declare his assets and operating domiciliary accounts, speaks directly to the fouled political atmosphere in the country, tainted by intrigues in the countdown to the 2019 elections. It is another embarrassing verdict on Nigeria’s poor democratic credentials and a huge disservice to the nation. This unmistakable act of judicial imbecility is a national embarrassment that stands the rule of law on its head and must be stopped immediately. It is disgraceful and totally unacceptable and represents a clear and present danger to the democracy Nigerians fought hard to win and preserve, and this indeed is lamentable. Despite the frantic denials of official complicity, President Muhammadu Buhari bears direct responsibility for the headache that this issue has unleashed on the nation. All level headed Nigerians must feel a sense of shame and outrage by this contrived humiliation of the CJN who incarnates the judiciary as a state institution.

Justice Onnoghen’s battle for survival as the CJN began as soon as his predecessor, Justice Mahmud Mohammed retired in November 2016. Under the constitution, Justice Onnoghen was the next in rank and ought to have been confirmed immediately, but for six months he was left in acting capacity until March 2017, following the delay in transmitting his nomination to the National Assembly by Buhari, for screening and confirmation. It took the deft move by then Acting President, Yemi Osinbajo to save the country from embarrassment and looming constitutional crisis. Against this backdrop should be viewed the depressing spectacle of the CJN; the head of Nigeria’s judiciary arm of government sitting inside a wooden cage labelled “Accused Box” like a petty criminal, next January 22, when the Code of Conduct Tribunal (CCT) is scheduled to arraign Onnoghen. It will be an unbelievable national shame!

The bogus charges are only another phase in the relentless persecution of the leadership of the Judiciary, and the misguided action on the eve of general elections begs the question: how does this promote the public interest and benefit the nation? It is just as well that a chorus of dissenting voices has joined in condemnation of what is an act of judicial brigandage and a witch-hunt orchestrated against the leadership of the judiciary. It is farcical to allege that a criminal act involving the CJN should be handled in such a cavalier manner, in utter violation of extant rules and the constitution of the federal republic, and the fact that the Attorney General has not called the CCT to order, demonstrates a desperate overreach by the administration to force the CJN out of office.

In point of fact and law, the planned trial is an assault on the rule of law as it is illegal. Section 36 of the constitution confers on accused persons the rights of fair hearing and presumption of innocence until proven guilty. It should however be noted that the National Judicial Council (NJC) was established by Section 153 (1) & (2) of the 1999 Constitution to do just that. By the provisions of Paragraph 20 (b), Part 1 of the 3rd Schedule, the NJC shall “exercise disciplinary control over” all judicial officers, including the CJN. Thus, the NJC has exclusive jurisdiction over all judicial officers, including the CJN. The NJC being a quasi-judicial organ established by the constitution, it is the appropriate forum to first raise any matter against any judicial officer, including the CJN. The precedent here is the decision of the Court of Appeal, in Nganjiwa v Federal Republic of Nigeria (FRN) that; no criminal charge can be laid against a judicial officer, including the CJN, in any court of law, without first filing such a complaint before the NJC.

Under and by virtue of Section 287 (2) of the 1999 Constitution, the decisions of the Court of Appeal shall be enforced in any part of the federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal. The CCB and CCT are subordinate entities to the Court of Appeal and are bound to enforce, apply and obey the decision of the Court of Appeal in Nganjiwa v FRN. It therefore stands to reason that the criminal charges against the CJN before the CCT are illegal, unconstitutional, ultra vires and null and void, and should either be withdrawn forthwith, discontinued by the AGF with a nolle prosequi motion, or struck out by the CCT.

The federal prosecutors are aware of extant decisions of the Court of Appeal in Nganjiwa v Federal Republic of Nigeria, to the effect that unless and until the NJC pronounces a judicial officer guilty, he cannot be arraigned in court. Those authorities know fully well that you cannot constitutionally remove the CJN without the NJC and the National Assembly; but they decided to humiliate the CJN, by arraigning him to the CCT, in violation of the constitution. The point must be made, that unlike other judicial officers who can be removed by the president upon recommendation of the NJC, the CJN can only be removed by the president if such a recommendation is backed by two-thirds majority of the Senate!  

Although the CJN does not enjoy immunity from criminal prosecution, the move by the federal government is dangerously political and tendentious, raising a number of posers: how come that over a year into his tenure, and less than 40 days to the 2019 Presidential election when the CJN is expected to play a major role, setting up a presidential election tribunal, it suddenly emerges that Onnoghen had failed to declare his assets and operated domiciliary accounts in 2010 and 2011 - eight years ago? How come the government did not find this out in almost one and half years that Onnoghen has been CJN? How can anyone explain the supersonic rush wherein a petition written on Jan 7 is received by the CCB on Jan 9 and two days later, charges are filed and an arraignment scheduled for Monday, Jan. 14? Suddenly, the Presidency is asking him to step aside, obviously aware that Onnoghen’s removal outside the constitutionally prescribed process could only happen if he resigns.

Despite the belated and tepid denials by the presidency, Nigerians are not fooled. This is an obvious attempt to gag and hector the judiciary into submission. After unsuccessful attempts to rein in the National Assembly using the CCT, the same tactics is now being employed against the Judiciary. This should not be allowed to happen. It has not helped that the ruling APC party, in a statement supported the illegal CCT action. Obviously, the last is yet to be heard in this unfolding tragic-comedy of errors. If anything, the unconvincing denials of complicity from the Presidency only vindicates public perception that Buhari is desperate to control the judiciary as part of efforts to gain political mileage ahead of the 2019 general election. The charges of false assets declaration are vindictive, very political and showed that Nigeria has finally become an anarchical, dictatorial, despotic and totalitarian state, with highly dysfunctional institutions where bizarre things can happen. Now that the battle lines have been drawn over what portends to be an imminent constitutional crisis, Nigerians cannot help but wonder whether in the perking order of priorities, the non-declaration of assets by the CJN should be pre-occupying the administration at a time when Nigerians are facing doomsday predictions over the coming elections.

The Presidency’s obsession with the judiciary leadership has not only impugned Onnoghen’s integrity; it has brought opprobrium upon the high office of CJN, which he occupies, and by extrapolation, the entire nation, thereby aggravating the national shame. Keen observers have been wondering what manner of a country would allow the nation’s Chief Justice to shuttle from the lofty seat of CJN to the dock. Perhaps, the ulterior motive behind this trial is to force the CJN out of the office. But if the CJN really cares for his name now and in the future, if he has any esteem for the Judiciary branch of government which he heads, and of Nigeria, his fatherland, he should take his trial and tribulation in stride, and send a strong message that he would not capitulate to pressure because no one man’s personal ambitions are above the good of the country. This is not just about law; it is the supreme act of statesmanship and love for one’s country and proof of patriotism that will inscribe his name in gold in the political history of Nigeria.