Ebun-Olu Adegboruwa

Late last week, this government recorded another major upset, when the news broke out that criminal charges were filed against the Chief Justice of Nigeria, CJN, before the Code of Conduct Tribunal, CCT, for his alleged omission to declare his assets. The planned arraignment of the CJN was however aborted due largely to procedural irregularities and the objections of his team of lawyers.

Without doubt, one of the major planks of the Muhammadu Buhari administration is the fight against corruption, for which it has gained the applause of many Nigerians and indeed the international community. However, in the current case against the CJN, no allegation of corruption has been made against him. In the charges filed against the CJN, it is stated that he failed to declare his assets at a particular time, as a Justice of the Supreme Court and he filled inconsistent forms at another time, as the Chief Justice of Nigeria. In other words, the CJN did what he should have done at a later date and since what he correctly did at a later date now seemed to contradict what he omitted to do at an earlier date, he is liable. This is the kernel of the matter.

Now the Federal Government of Nigeria consists of the Legislature, the Executive and the Judiciary, all established under sections 4, 5 and 6 of the Constitution respectively. Section 308 grants express immunity to the President, as head of the Executive arm, ostensibly to allow him concentrate on the job of governance. The office of the CJN is the symbol of the judiciary in Nigeria, he represents the totality of the Justice Sector in Nigeria, being the head of the Supreme Court, the most senior judicial officer in Nigeria, the Chairman of National Judicial Council, the head of the Federal Judicial Service Commission, the head of the National Judicial Institute, the head of the Legal Practitioners Privileges Committee, etc. Thus, anything that touches the CJN touches the entire judiciary and by necessary implication, the legal profession.

The National Judicial Council was set up under section 153 and empowered by the Third Schedule of the 1999 Constitution, as the body clothed with powers to recommend the appointment of all judicial officers and to exercise disciplinary control over them. This function has been discharged creditably well, from time to time, by the NJC, which has recommended the suspension, retirement, dismissal and other disciplinary actions, against some judicial officers.

In 2017, the Court of Appeal had cause to interprete the powers and functions of the NJC in the case of Nganjiwa v. Federal Republic of Nigeria, wherein a judicial officer was put in the dock for alleged corrupt practices. It was the unanimous decision of the Court of Appeal that a judicial officer must first be tried by the NJC on any matter relating to the performance of his judicial functions before appearing in court as a defendant in a criminal charge. The rational for this is simply that it would be improper to put a serving judicial officer on trial without first determining his status as such. Consequent upon this decision, the Honourable Justice Sylvester Ngwuta, a Justice of the Supreme Court then accused of alleged infractions of the Code of Conduct, successfully challenged his trial before the CCT. Nothing has changed in the law ever since.

It is to avoid answering to frivolous summons in court, that the President was granted direct immunity by the Constitution and it is to protect the institution of the judiciary, that the CJN and indeed all judicial officers, have been granted indirect immunity from frivolous prosecutions of this nature, that may be designed simply to embarrass or intimidate them.

Against the background of the seeming displeasure of the President, with the judicial arm of government, it becomes easy to surmise that the Executive Arm of government has been at loggerheads with the Judicial Arm. Judges have been on trial, their homes were broken into in the midnight and judicial officers are constantly under the scrutiny of the law enforcement agencies. This in itself is good for our system, given that the judges are next to God, in the line of authorities and powers, earning them the distinguished title of “My Lord” temporal. A judge can give a verdict to terminate the life of a person, to end a marriage, to confirm or remove from office and generally to do and undo. Such a highly exalted office should only be occupied by honourable men and women of repute and unblemished integrity. In this regard, the President and the law enforcement agencies deserve the support and commendation of all, in the drilling of the judiciary.

It must be noted however that the office of the CJN, being primus inter pares, is not one to be ridiculed through very flimsy charges of error or omission to fill forms, without more. It has since come to light, that the petitioner against the CJN, Mr. Joe Aghaya, is of the President’s Congress for Progressive Change stock and an official of the Buhari support group. He betrayed an obvious plot when he stated in his petition that it was actuated by and predicated upon the coming elections. Added to this is the media trial of the CJN. The charges against the CJN were filed by the CCB on Friday January 11, 2019 and it went viral almost immediately.

The response of the CJN to the CCB interrogatories were splashed in the media, together with his personal and confidential information, his private telephone numbers, his residential address, his hand writing, his family and all other details about him, were all unveiled, for all manner of Yahoo Yahoo practitioners, to feed on. That is a collective embarrassment, not only to the government, but to the institution of the judiciary and indeed the legal profession, to drag and portray the exalted office of the CJN as that of a common defendant, on account only of procedural irregularity in filling code of conduct forms.

The President has since distanced himself from the processes before the CCT and most people are of the view that in the light of the decision of the Supreme Court in Saraki’s case, the decision of the Court of Appeal in Nganjiwa’s case and that of the Code of Conduct Tribunal in Ngwuta’s case, the current charges against the CJN are doomed to fail. The question then is this: why start a process at all, when the likely outcome is already known, except it is meant to embarrass and ridicule? Most judicial decisions in Nigeria are predicated upon the doctrine of precedence, as reinforced by section 287 of the Constitution, which has established the hierarchy of courts and obedience to their decisions.

The other issue is the timing of the charges, ahead of the 2019 general elections in February and March 2019, respectively. Now the Governorship, National Assembly and Presidential Elections will most likely be trailed by several pre-election cases and election petitions, most of which will end up in the Supreme Court, where the CJN holds sway. The Constitution has stipulated a maximum period of 180 days to determine and conclude all public office related cases, the effect of which is that the CJN will still be in office when most of the cases will be determined. So, a lot is at stake. The theory then is that somebody who is not comfortable with the CJN is trying to remove him from office for purely political reasons.

The CJN’s trial is a huge distraction for our nation, it is a needless controversy and a cross that this administration will carry to the end of its tenure. Judicial officers should be immune from political preferences and the idiosyncrasies of political leaders, judges should be free to exercise their sound mind and discretion, without fear, favour, affection, intimidation or ill will. If security chiefs are not to be touched or tampered with on account of national exigencies of the war against insurgents, what then is the rationale for seeking to disgrace the CJN and to derobe him in an election year, close to the end of his tenure? In this regard, there is no sensible distinction to be drawn in respect of Nganjiwa’s case, as the Constitution has not specified the category of cases for which the NJC should exercise “disciplinary control” over judicial officers. The filling of code of conduct forms by a judge is in furtherance of his judicial responsibilities. It is left for the NJC to determine, when the matter is properly tabled before it.

This administration is reputed for taking its own time to weigh all issues affecting public officers and for holding on to reports of several probe panels in the cases of the NIA Ikoyi forex haul, the NHIS, the SGF, the arms procurement contracts, etc. One then begins to wonder the haste and alacrity of the CJN trial. The issue of alleged error, omission or improper filling of code of conduct forms by the CJN is purely administrative and unless there are other matters that cannot be disclosed concerning him, the criminal charges filed against him in this regard before the CCT should be withdrawn by the CCB or discontinued by the Honourable Attorney-General of the Federation.

In a nation ravaged by war, infrastructural decay, economic crises, mass poverty, unemployment, galloping inflation and rising crime waves, derobing the CJN and dragging the entire judiciary into disrepute a month to the general elections, should be the least concern of an administration that people look up to for meaningful change. The energy and resources available can be better concentrated on other useful national ventures than this calamitous trial that is nothing but a national embarrassment. Otherwise, the only reasonable conclusion to draw from all the ensuing drama is that the CJN was only set up for his mistrial, by political hawks.

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