Onnoghen’s Trial: Between Politics And The Rule Of Law

ADEBIYI ADEDAPO distils the perceived political motive from the rule of law. Trial of the Chief Justice of Nigeria, Walter Nkanu Onnoghen at the Code of Conduct Tribunal (CCT) is about the most topical issue in the polity, as political parties, state governors, senior lawyers and interest groups offered diverse opinions on the matter. Last Monday, the Code of Conduct Bureau (CCB) eventually served the criminal charges of false asset declaration on the person of the Chief Justice of Nigeria (CJN), Justice Walter Samuel Nkanu Onnoghen, last week, in preparation for his arraignment on January 22, 2019, at the CCT. Also, the Federal Government, through the office of the Attorney General of the Federation and Minister of Justice, Abubarkar Malami (SAN) directed Nigeria’s Financial Intelligence Unit (NFIU) to freeze some accounts belonging to the CJN. The Tribunal had on Monday January 14 adjourned proceedings till January 22 after the lead prosecuting counsel, Aliyu Umar (SAN), conceded that Onnoghen was not properly served with the charges and the summons. Although, a Federal High Court sitting in Abuja and the National Industrial Court, also sitting in Abuja, had issued orders restraining the CCT from proceeding with the trial, pending the determination of the suits before them. It is however unclear, whether or not, the Tribunal will comply with orders. Some legal experts have argued that the orders may not be considered binding on the Tribunal since they emanated from courts of coordinate jurisdiction, which by law have equal powers. The CJN’s travails and impending arraignment before the CCB has undoubtedly unsettled the Bar and the judicial arm of government in general. While some consider the CJN’s trial as an affront and a threat to the independence of the judiciary, others are of the opinion that judges, including the CJN does not enjoy immunity from prosecution and as such the bench is not above the law. In October 2016, the Department of State Service (DSS) raided the homes of some senior Nigerian judges allegedly involved in corrupt practices to gather evidence. The DSS noted that the operation was ordered after months of investigations, during which the secret police established that the affected judges were involved in questionable financial dealings. The DSS also claimed that it submitted parts of its findings to the regulatory body, the National Judicial Council (NJC), but had to take further actions after the council merely recommended two of the judges for retirement, and not prosecution. Affected judges include Adeniyi Ademola, and Nnamdi Dimgba of the Federal High Court in Abuja as well as Sylvester Ngwuta and John Okoro of the Supreme Court. In Kano, the source said the home of a high court judge, Kabiru Auta, was raided along with another residence in Enugu belonging to the Chief Judge of the state, A. I. Umezulike. In the same vein, the President of the Nigerian Bar Association (NBA), Mr. Paul Usoro (SAN) a few months after his inauguration was declared wanted by the Economic and Financial Crimes Commission (EFCC) over an alleged N1.4 billion fraud and arraigned before a Federal High Court sitting in Lagos. Following these developments, a section of the Bar and some Nigerians opined that the Executive arm of government is merely intimidating the judiciary to assert a level of control over another arm of government often referred to as the last hope of the common. Specifically, it was alleged that the CJN’s trial was meant to tactically hedge him out of office, so as to ensure emergence of a successor who would be favourably disposed to the APC government. Convener of the Pan Niger Delta Forum (PANDEF), Chief Edwin Clark, described Onnoghen’s planned arraignment as a move by the APC government to rig the forth coming general elections. According to him, the South south people will resist the move against the CJN, because the game plan of the Buhari administration is to sack Justice Onnoghen and get a more pliant CJN that will pander to the whims of the government. “The news of the arraignment of the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen before the Code of Conduct tribunal (CCT) on Monday has come to us as a shock because there is nothing to show that this man has not been doing his job properly. There is nothing to show that he is corrupt; simply because they want to rig this election, they want to remove him to put somebody who will do their bidding after the election; otherwise, there is no basis for harassing the judiciary,” Clark alleged. Similarly, NBA in a statement signed by its General Secretary Jonathan Gudu Taidi described the move against Onnoghen as an assault, intimidation and desecration of the judiciary, which must stop. The body questioned government’s position to embark on this “anomalous course of charging the CJN before the CCT without first presenting whatever facts it purportedly has against His Lordship to the NJC.” The statement reads in part: “Assault, Intimidation and Desecration of the Judiciary Must Stop. Nigerians have witnessed again the targeted assault of the judiciary by agents of the Federal Government of Nigeria (FGN) epitomized by today’s media trial of the Chief Justice of Nigeria, Honourable Justice Walter S N Onnoghen, GCON (CJN). According to media reports which have now been validated by the Statement of the Code of Conduct Tribunal (CCT) that was released today an application was filed by the Code of Conduct Bureau to the CCT Chairman yesterday for the trial to commence against the Chief Justice of Nigeria on six count charges and that the CCT will commence the trial on Monday, 14th January 2019. The Nigerian Bar Association unequivocally condemns this assault, intimidation and desecration of the Judiciary by FGN agencies and demands that it be stopped immediately.” The NBA observed that in the case of Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391(CA), the Court of Appeal made it very clear that any misconduct attached to the office and functions of a judicial officer must first be reported to and handled by the National Judicial Council (NJC) pursuant to the provisions of our laws. Noting that Federal Government could proceed with prosecution against the CJN after the NJC has pronounced against such judicial officer. “As the Court pointed out, these requirements of the law are anchored on the overriding principles of separation of powers between the executive, the judiciary and the legislature and on the need to preserve, promote and protect the independence of the judiciary. Our respective liberties and the rule of law are best protected and preserved if the judiciary remains independent and shielded from intimidation and assault by the other arms of the government,” the NBA Secretary stated. While corroborating the NBA’s argument, Human Rights lawyer, Femi Falana, (SAN), has advised the Federal Government to urgently withdraw the charges against Onnoghen as such move will amount to prosecutorial misadventure. According to him, “The charge against the Chief Justice of Nigeria, Justice Walter Onnoghen ought not to have been instituted at the Code of Conduct of Tribunal in view of the case of Nganjiwa v FRN (2017) LPELR 43391 wherein the Court of Appeal held that a judicial officer who has not been investigated by the National Judicial Council and sanctioned for misconduct cannot be arraigned in any criminal court in Nigeria. “As all authorities are bound by the Court of Appeal verdict, the case should be withdrawn by the Attorney-General of the Federation without any delay because it is likely to be a prosecutorial misadventure,” he said. In a sharp contrast to the position of NBA and Falana, the chairman, Presidential Advisory Committee Against Corruption, Prof. Itse Sagay (SAN), declared that CJN’s trial is a proof that no one is above the law, as he said Nigeria was gradually becoming a nation operating under the rule of law. Sagay argued that the provision of the CCB precludes NJC from deciding on the case of any judge that is accused of not declaring his assets. He also noted that the NJC cannot be just in a matter against the CJN. “Even a baby must realise that no one can get justice against the Chief Justice of Nigeria at the NJC. The CJN is not only the Chairman of the NJC, he is also the appointor of 20 out of the NJC’s 23 members. The CJN is the NJC. Only a grossly ignorant man or an extremely mischievous one could seriously suggest that a matter involving the CJN should be brought before the NJC for adjudication. “Therefore, the whole idea of taking the present case to the NJC is a non-starter. For that would make the CJN the chief judge of his own case, a clear violation, not only of the Constitution but also of a long standing common law principle coming all the way from ‘Magna Carter’ in the year 121.” Sagay also opposed the argument that the CJN should resign in order to face trial, noting that CCT is only empowered by law to try public officers. “If he is removed from office by the NJC and he ceases to be a judicial officer as well as a public officer, can he, therefore, be tried as a public officer before the Code of Conduct Tribunal? The answer is no, because he is no longer a public officer. The extant provisions of the Constitution and the Code of Conduct Bureau and Tribunal Act would be rendered nugatory, by a prior NJC involvement,” Sagay noted. The above argument however countered the most sensitive narrative, which suggested that the CJN should resign from office to face trail, so as to protect the sanctity and integrity of the judiciary as well as the exalted position he currently occupies. Proponents of this narrative hinged their argument on the belief that since the CJN has admitted to the misconduct, it would be morally wrong for him to remain in office, more so that his position as CJN, doubles as the Chairman of the National Judicial Council (NJC) the highest decision making body for judicial officers. The CJN reportedly admitted in his reply to the CCB over the allegation that he forgot to declare his asset as and when due. But the CJN insisted that he committed no crime. “My asset declaration form numbers SCN 00014 and SCN 00005 were declared on the same day, 14/12/2016 because I forgot to make a declaration of my assets after the expiration of my 2005 declaration in 2009. Following my appointment as acting CJN in November, 2016, the need to declare my assets anew made me to realize the mistake. “I then did the declaration to cover the period in default. I did not include my standard charted bank account in SCN 000014 because I believed they were not opened. “I did not make a fresh declaration of asset after my substantive appointment as CJN because I was under the impression that my SCN 000015 was to cover that period of four years which includes my term as CJN,” the CJN stated in his reply to CCB. Another Senior Advocate of Nigeria (SAN) Ahmed Raji who spoke to LEADERSHIP Sunday via the telephone urged the general public to exercise caution on the matter. “I will advise that we thread on a cautious path, we should not dwell very much into speculation, let us see what happens first, then we will know the way to comment,” he said. When asked if the arraignment suggests a threat to the independence of the judiciary, especially as regards to the 2107 Court of Appeal Judgment in the case of Ngajiwa V Federal Republic of Nigeria, quoted above, Raji said; “What the judgment says is that where the offence relates to the official conduct, which concerns the discharge of his duties, then you have to report him first to the NJC, but where the offence has nothing to do with his work, for instance, if a judge is accused of assault in the market place, that needs not go to the NJC, that is the Court of Appeal judgment in the case of Ngajiwa Vs FRN.” However, irrespective of the diverse legal opinions, the matter would be determined purely on the point of law and devoid of political considerations. The first issue for determination, clearly borders on whether or not the allegation levied against the CJN constitutes an official misconduct which ought to have been referred to the NJC or falls within the jurisdiction of the CCT. Another issue for determination is the proviso made under section 3(d) of the CCT Act, which made it mandatory on the CCB that once a statement of admission is made then the matter shall not be referred to the Tribunal and any other discretion to be exercised can only be to the Federal Judicial Service Commission (FJSC) or NJC. While a judicial officer, the CJN inclusive can be removed for official misconduct, it is instructive to note that the removal of the CJN and other judicial officers is provided in section 292 of the constitution. Section 292 of the constitution stipulates that “(1) 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, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the
President acting on an address supported by two-thirds majority of the Senate. (ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the
State, Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct; (b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of
mind or of body) or for misconduct or contravention of the Code of Conduct. (2) Any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria.” Culled from leadership]]>