Fighting corruption is a worthy cause, but corruption breeds in different ways, including total disregard for the rule of law. In a democratic setting there is no alterative to the rule of law. The suspension of the chief justice of Nigeria, Honourable Justice Walter Nkanu Onnoghen, the head of the judiciary, by the president of Nigeria, Muhammadu Buhari his caused a major up roar in the judicial and political landscape of Nigeria. The action of president will be viewed through the lenses of the Law.
What the Law Says
Section 292 (1) (a) (i) of the 1999 constitution as amended state that 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, by the president acting on an address supported by two – thirds majority of the senate. The constitution in section 153(1) (i) established the National Judicial Council. The same constitution in section 21(b) of part 1 of the third schedule of the constitution empowers the N.J.C to recommend to the president for the removal of the chief justice of Nigeria from office, and to exercise disciplinary control over the chief Justice of Nigeria.
In the case of NGANJIWA V Federal Republic of Nigeria (P2018) 4 NWLR (PL160). 301 AT 341 and 394. The court held that before a criminal action can be brought against a sitting judicial officer, the condition precedent of referring the Judicial Officer to the N.J.C must first be satisfied, that failure to refer the judicial officer to the N.J.C, before commencing proceedings makes the entire proceeding null and void.
Thus, it follows that by the provision of the constitution, and decided cases it is crystal clear that the president did not follow the laid down procedure in removing or disciplining the C.J.N. It is a settle principle of law that where that Law prescribe a procedure to be followed, and that procedure is not followed, the proceeding will be null and void. See Attorney General of Federation V Guardian Newspaper Ltd (1999) NWLR (618) 187
Thus, the action of the president in not following the laid down procedure is irregular.
DIVERGENT LEGAL OPINION:
It must be stated that there has been a Lot of Legal commentaries stating that the president did not breach the constitution, as according to them, the president merely suspend and did not remove the C.J.N, it is submitted with respect, that this view is risible at best, and laughable at worse. The Law is Lucid, limpid and clear that the express mention of one, exclude the other, the wordings of the constitution clearly state REMOVAL, because the constitution did not envisage and clearly abhors a situation where the C.J.N will be suspended without recourse to the N.J.C, in F.C UDOH & ORS VS ORIHOPAE DIC MANAGEMENT BOARD & ANOR (1993)7 S.C.N.J 244 the supreme court per karibe whyte state that; it is a well settled principle of construction of statute that where a section names specific things among many other possible alternative, the intention is that those not named are not intended to be included, expressio unius exclusio alterius. This is that the express mention of one in a statuary provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue. Thus the world used by the constitution is “REMOVAL” and “DISCIPLINE” of judicial officer, which recourse must first be made to the N.J.C, and no where was the word “SUSPENDED” used. Thus the word “SUSPENSION” is alien and strange to the constitution and just like water cannot mix with oil, the word suspension and removal cannot be mixed in relation to the constitution.
Secondly, there are those who justify the suspension of the C.J.N on the premise that the president acted on the order of the code of conduct Tribunal. It is submitted with respect, that these who hold that view are exuding their ignorance of the Law. Section 18 (1) part 1 of the fifth schedule of the constitution defines the power of the CCT. Section 18 (2) stipulate the punishment which the CCT may impose upon conclusion of trial. They are (a) vacation of office or seat in any legislative house as the case maybe (b) disqualified from membership of a legislative house and from the holding of any public office for a period not exceeding two years, and (c) seizure and forfeiture to the state of any property acquired in abuse or corruption of office.
From the above, the C.C.T, does not have the power to order for suspension of the C.J.N. More so, as at the time, the C.C.T gave the order to suspend the C.J.N, the court of appeal, had already given an order to stay proceeding at the C.C.T, and thus the C.C.T could not have issued an order, which Ipso facto, it does not have the power to continue to preside over the matter.
Finally, there are people who hold the view that the president was right in suspending the C.J.N, as to them the president was empowered under section 11 of the interpretation ACT CAP 123 Vo1 8, L.F.N 2004. That since the president can appoint the C.J.N, he can also remove the C.J.N.
While this view is illogical as illogic could beget, section 1 (3) of the constitution state that if any Law is in consistent with the provisions of this constitution, the constitution shall prevail, and that other Law shall to the extent of the inconsistency be void. Thus, while that is a wrong interpretation of the interpretation Act. It is submitted that the provision of section 292 of the constitution shall prevail.
Let me conclude by quoting the immortal words of ward Churchill. When it state that; it is a collective responsibility of the citizens in a modern state to ensure by all means necessary that its government adhere to the rule of law. There are no bystanders, no one is entitled to an apolitical exemption from such obligation. Leon Jaworski put it more poignantly when it state that; when dictators seek to destroy the freedom of men, the first target is the legal profession and through it, to the rule of Law. Nigerians in general, and Legal practitioners in particular should rise up against this illegal suspension of the C.J.N, so as to protect the sanctity and independence of the judiciary.
Just like the case of ELELU – Habeeb V AGF (2012) 40 WRN 1 where the former C.J of kwara state, was illegally removed by the then government of kwara state, without recourse to the N.J.C, the supreme court up turned the removal and declare the action of the government unconstitutional.