The widespread negative public reaction to the suspension of the Chief Justice of Nigeria, Hon. Justice Walter Onnoghen by President Muhammadu Buhari has predictably crowded out any rational discussion of its validity or otherwise, under relevant laws, not least of which is the 1999 Constitution. The perceptible motivation behind a lot of the condemnation of the admittedly shocking – albeit not altogether unexpected – development is an admixture of primordial sentiments (ethnicity, religion) and political opportunism by the President’s political enemies, particularly the opposition People’s Democratic Party.
This is unfortunate, of course, because, as ever, the truth is the first casualty. So what, precisely, is the truth? At the risk of flouting the rule against public commentary on pending litigations (reiterated, ironically, by Justice Onnoghen himself just over a year ago), here is a personal opinion. Isn’t it is said that facts are sacred, and opinion is free?.
But, first things first . . .
While announcing the suspension, President Buhari was clear that Justice Onnoghen had only been interdicted and that his replacement, Hon. Justice Tanko, is merely a stand-in, serving in an acting capacity. To that extent, the provisions of Section 292(1)(a)(i) of the Constitution which prescribe the modalities for the removal of the CJN are inapplicable and have been wrongly cited by some as having been violated. They have not. The same Constitution (in Section 231(1)) stipulates the circumstances under which the CJN may be appointed (on the recommendation of the National Judicial Council, subject to confirmation by the Senate). Thus, it is clear that President Buhari did not purport to appoint Justice Tanko as the substantive CJN. In other words, Justice Onnoghen remains the nation’s substantive CJN, albeit until further notice.
Does Any Law Support the President Action?
This is the million- dollar question. If such a law exists, why the fuss? If it doesn’t, then the President has goofed, either in good faith or otherwise. To the best of my knowledge, apart from the Interpretation Act, no statutory provision justifies the suspension by the President (or a State Governor) of a judicial officer whose appointment and outright removal are provided for under the Constitution. The provisions of Section 11(1)(c)(ii) of the Interpretation Act seem to confer a qualified mandate of sorts in this regard. They provide that “where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specific purpose or not, the power includes power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint, to appoint a person to act in his place . . . during such a time as is considered expedient by the authority in whom the power of appointment is question is vested”.
The limitation of the provisions are self-evident: the power to suspend a CJN and appoint an acting one are subject to the very provisions of the Constitution (Section 231(1)) which deal with his or her appointment in the first place. Even though by virtue of Section 318(4) of the Constitution, the Interpretation Act “shall be used in interpreting the provisions of the Constitution”, however, this can only arise, in the event of any ambiguity, as is arguably the case, in relation to the constitutional provisions dealing with the disciplinary control of judicial officers, including the Honourable CJN.
In this regard, Paragraph 21(b) of the Third Schedule to the Constitution provides, inter alia, that “the National Judicial Council shall have power to exercise disciplinary control over” the CJN, amongst other Judicial officers. Does this include suspension? A liberal construction of that phrase would seem to give that impression. Precedent certainly suggests that it does, because when President Jonathan suspended Hon. Justice Salami as the President of the Court of Appeal a few years ago, he did so on the recommendation of the NJC.
Is Justice Onnoghen’s Case Different, and, if so How and Why?
Only President Buhari can answer that question. Hence the title of this piece. His real motives for moving against Justice Onnoghen – whatever they might be – are outside the scope of this intervention. The stated reason – an order purportedly issued by the Code of Conduct Tribunal just a day before the Court of Appeal restrained it from further proceeding with Justice Onnoghen’s trial – is suspect, to say the least. In other words, whether the CCT possess that power in the circumstances is doubtful. However, whether valid or not, that order remains binding until it is set aside. I suspect that is precisely what Justice Onnoghen’s advisers would try to do in the coming days and weeks.
Should Justice Onnoghen Have Recused Himself Pending the Resolusion of the Charges?
This is the moral, if not legal, question behind the CJN’s travails. What does the law say about a public officer (such as His Lordship) who is on trial for alleged malfeasance? It appears that under the Public Service Rules 2009, such an officer is obliged to step aside (i.e., proceed on suspension, usually with half-pay) until he or she is cleared of the charges. Those Rules do not, however, apply to judicial officers, who have their own separate conditions of service under the Judicial Discipline Regulations 2017, the Revised Code of Conduct for Judicial Officers 2016 and the NJC’s Revised Guidelines and Procedural Rules for Appointment of Judicial Officers 2014. See the Court of Appeal’s decision in NGANJIWA vs FRN (2017) LPELR – 43391
If (as seems to be the case) judicial officers are exempt from the said provisions of the Public Service Rules which require the suspension of a public officer who is on trial for committing a crime or violating any extant statute (like the Code of Conduct), then such a privilege would be a clear violation of the right to equal protection of the law under Article 3(2) of the African Charter on Human and People Rights, as well as the right to freedom from discrimination under Section 42(1) of the 1999 Constitution.
Accordingly, such a provision would be invalid, null and void and unconstitutional. This is because the Supreme Court itself has made it clear that, beyond the literal meaning of its letters, “the principles upon which the Constitution was established, measure the purpose and scope of its operations”: ATT-GEN. OF THE BENDEL STATE. vs. ATT-GEN. OF THE FED (1981) 10 S.C. 131. In this case, the Preamble to the Constitution clearly states that its purpose is the promotion of good governance on the basis of freedom, equality and justice.
It is a cliche that when two elephants fight, it is the grass that suffers. The apparent face-off between President Buhari and Justice Onnoghen can have no winners. The former has merely emboldened his numerous critics to be more vociferous in their charge that he is undemocratic and anti-Constitution/the rule of law. With all due respect, the Honourable CJN is no better as, either way, his reputation is already tarnished by the revelations of the humongous, unexplained, amounts of money reportedly traced to him. What is the end-game for both? It remains to be seen.
In the meantime, everyone seems fixated on, and indeed, agitated by, this duel between two constitutional titans, supported by a motley crew of hirelings and cheerleaders. Everyone seems to be ready with an opinion on the saga, either informed or not, no matter how banal or trivial. As a result, national interest and patriotism have taken a back seat, and it is seemingly a case of ‘To your tents, O Israel’. Needless to say, it doesn’t have to be this way. Beyond the actual dramatis personae, both the elite and the hoi polloi alike ought to realize that it is in their joint interest to preserve this democracy which, with all its imperfections (and they are many) is still preferable, by far, to the most benevolent autocracy. Our unhappy national history is not that distant for us to recall in this regard.
Accordingly, going forward, what the situation calls for, in my vein, is not so much a legal solution, as an elite consensus for resolving what is clearly a battle for the soul of the nation. Nigeria is at a crossroads. At the risk of falling victim to the very ills against which I preach, I counsel that we – all of us – cultivate and imbibe the spirit of promoting the common good over narrow, selfish, parochial interests and sentiments. We must insist that our public officials exhibit a set of values which are marked by a moral bar far that transcends their petty egos and personal aspirations. That is certainly the norm in advanced democracies. Nigeria cannot be different.
Abubakar D. Sani, Esq. Kano. 08034533892