Onnoghen’s Removal Has Set Dangerous Precedent – Ex NBA 2nd VP Monday Ubani

In this stimulating chat with STEPHEN UBIMAGO, the immediate past second Vice Chairman of the Nigerian Bar Association (NBA), Mr. Onyekachi Ubani speaks about the unresolved unconstitutional removal of Justice Walter Onnoghen, the former CJN. He also speaks on the rule of law and issues of democratic governance in Nigeria

Under the current Buhari-led administration, many like El Zakzaky, Dasuki, Sowore,, and others, have been in detention despite valid court orders. The government had justifi ed its stance, saying national security supersedes the rule of law. Does this argument hold water?

The issue of violation of citizens’ rights did not start with this government. It happened under Jonathan’s regime; it happened under Yar’Adua; it happened under Obasanjo’s regime; it is also happening under this regime. So it is not peculiar to this government. If you’ve been in the trenches as an activist, you will recollect very well that there is no government, whether military or civilian, that has not been accused of violation of human rights. They even violated the right of the press under the last dispensation. The only thing is severity and frequency under the current dispensation. In any case, the atmosphere under Jonathan was a bit freer in terms of acceptance and tolerance of criticism. But I also want to stress the point that the Constitution says you have rights under Chapter 4, but went on to list the derogatory clauses. By derogatory clause, it is meant that under certain circumstance, those rights are not unlimited; they can be derogated from. And that when there is any clash between national interest or national security or national welfare and individual rights, the former will supersede individual right. But in violating or derogating from those individual rights, there is only one arm of government that has the authority to make that pronouncement after making the proper evaluation of the facts and evidence. It is only the court that does that. And that was what was established in Asari Dokubo’s case. But what we are seeing now is that there is a misapplication of that principle by the present executive. So when they cite Asari Dokunbo’s case, they are not citing it to really reflect the ratio of what was decided. They are citing it out of context and that is the danger. We are not quarrelling with the issue of national interest superseding personal rights. It is there in the Constitution. In fact, it does not make sense for anyone to say personal interest will override majority interest. The point is that it is only the judiciary that has the constitutional authority to make such an evaluation. In my own case, immediately I found out that I was detained and I found that detention illegal, I consulted my lawyer who immediately filed an action in court to enforce my fundamental right. They brought up all those issues of what transpired; that I stood surety for someone accused of a fraud; and for that they took me into custody. The court said fine, if you think the man who stood surety has committed any offense known to law charge him. You don’t have to keep him in detention indefinitely. Release him on bail if you don’t have anything. And that order was disobeyed until the NBA and all other interest groups started speaking out. This issue of disobedience to court order is where we really have issues with this government.

But did the ruling in Asari Dokubo’s case say if the court gives an order then the executive can invoke national security as a reason for disobeying a valid court order?

The court didn’t say that. The court said that at any point in time that such clash become apparent then the order of court must be obeyed. The executive has no power under the law to now begin to interpret the decision of the court as to say national interest or national security supersedes individual rights or an order of court. In the Dasuki case we are talking about, the court had severally said release the man on bail, but the executive sits down and says no, because national security supersedes; and to justify that you cite Dokubo’s case. But the question is: who decided Dokubo’s case? Is it not the court? Why are you the one now interpreting the decision of the court? If you have any evidence against Dasuki that he has committed a crime, you take him to court; you present the evidence and convict him. Why would you now put him in detention indefinitely?

Some have argued that by the brazen tendency of the executive to undermine the rule of law, it has e‑ ectively become constitution unto itself. Do you agree with this assessment?

That would be very wrong under a democracy. It would be very wrong for the executive to become a law or a constitution unto itself. There are three arms of government, you and I know that. Each of the arms of government has their own role as assigned by the constitution. So the executive cannot play these three roles. The moment the executive begins to interfere with the function of the other arms, then there is a big problem. That is when you begin to assume that the executive has become a constitution unto itself. So if there is any conflict at any point in time, and it is resolved by the judiciary, then the executive has no choice than to obey. Each of the arms of government is independent; but they work collaboratively for the good governance of the country. They must be separate and independent, without one arm trying to interfere in the activities of the other arm. When these arms of government work in a very harmonious manner, it is for the interest of everybody. Mr. X is a victim today and you say ‘hei it is his problem.’ But you can become a victim tomorrow. Did I ever know that I will be in detention at some point? What I am saying is that any person can be a victim. That is why at any point in time, we must stand on what is right. You remember it’s said, “They came for the Jews, and I did not speak out, because I was not a Jew. Then they came for me—and there was no one left to speak for me.”

precedent and indicates the judiciary has been pocketed. Do you agree with this assessment?

There is danger. It is a signal to danger if the judiciary is pocketed. The judiciary is supposed to be independent and separate from other arms of government. If Onnoghen was guilty or liable, the he had to go for it. Anyone who commits any crime must go for it. But if you now bridge the gap and break all the rules so that the man would be penalized, then there is a big problem. It was clear that in Onnoghen’s case, the executive failed to follow the procedure, for justice should not only be done, it must be seen to have been done. Indeed, Onnoghen’s matter is something, if allowed to stand would set a dangerous precedent in our judicial history. It is a very dangerous precedent. This is because there is nowhere our constitution listed the process through which Onnoghen was removed. The president swore to uphold the constitution. So, we must access how he removed Onnoghen based on the constitutional benchmark. I will say straight away that the removal of Onnoghen did not in any way comply with the provisions of the constitution. Even the requirement that the removal must be referred to the senate was not complied with. And now this man is gone. He was removed by an ex parte order of the Code of Conduct Tribunal (CCT), which is an inferior court. We are yet to know whether the CCT is part of the judiciary or part of the executive. The constitution did not make any provision and call the CCT a superior court of record. So we need to have it properly defined. There were many things that happened in the removal of Onnoghen that leaving it as a precedent is very dangerous. I am not exculpating Onnoghen. He may have been guilty of all the allegations made against him; but as long as the process and the procedure as laid down by the constitution was not complied with, it leaves a sour taste in the mouth of everyone. This is what you have witnessed of a state governor refusing to forward the name of acting CJ to become substantive CJ despite being eminently qualified.

Some people have said that what happened to Onnoghen is indicative that the president has conquered Nigeria. That in case the man says in 2023 he wants to continue as president beyond the constitutional tenure limits, he will succeed. Would you disagree with that view?

I don’t think that the president, to be fair to him, will like to go down with that kind of record. I don’t think he will like to test the will of Nigerians in 2023 as to say he will not hand over to a successor or say he will disobey the constitution or violate the constitution and seek to run for third term. I don’t think the president is not wise enough to know that will be an uphill task; that it will completely destroy his reputation. So, I don’t think the president that I know will want to do so. I want to give him the benefit of the doubt. Anything in that regard is in the realm of speculation. When we get to that bridge of 2023 we will cross it.

Nigerians have seen a lot of killings of their compatriots since Buhari’s inauguration. Fulani herdsmen, bandits, Boko Haram, kidnappers, among others, are busy killing Nigerians from North to the South. Strangely, we have not seen arrest and prosecution of the alleged murders. What is your response to this development?

being killed; abroad they are also being killed, like in South Africa. A lot of money has been sunk into fighting this state of insecurity in the country. But nothing to show for it; so a lot still needs to be done. Virtually every day you hear a particular village being attacked and sacked but there is no arrest and no prosecution. There are so many things that when they come here to tell me, I weep. You are hunted in your country. You are hunted abroad. But it now behooves on the leadership to rise to the occasion because the primary responsibility of every government is the security and welfare of the people. If you cannot provide security, it means we have been returned to the Hobbesian state of nature where life is poor, nasty, brutish and short. If there is absolute lack of responsibility on the part of those we have been elected to secure us, then we will have no choice than to say “to your tents o Israel,” and so we provide security for ourselves. Let’s not descend to that level. Or are they waiting until the people start giving all of them the Ekweremadu treatment?

Culled from independent