In this piece, STEPHEN UBIMAGO critiques the non-reference of FG’s case against Justice Walter Onnoghen, the Chief Justice of Nigeria, to the Code of Conduct Bureau (CCB) before proceeding to the Code of Conduct Tribunal (CCT) with it…

When operatives of the Department of State Services (DSS) between the late night of Friday, October 7, 2016 and the early hours of Saturday, October 8, 2016 simultaneously invaded the Abuja official residences of Supreme Court Justices Walter Onnoghen, Sylvester Ngwuta, and John Okoro, as well as the homes of judges of the lower courts, including Justices Adeniyi Ademola, Nnamdi Dimgba, Muazu Pindiga, among others, Mr Femi Falana (SAN), a renowned Lagos-based lawyer, was among those who rationalized and justified the divisive action of the President Muhammadu Buhari-led Federal Government.

According to Falana in an interview, the judiciary brought the harassment upon itself because it was corrupt, refusing to purge itself hitherto. Thus the action was expedient given the circumstances, since the judiciary had hitherto failed to do the needful, Falana seemed to indicate.

He said, “Having failed to take advantage of the relevant statutory disciplinary bodies to purge the bar and the bench of corrupt elements, the members of the legal profession have themselves to blame for the harassment of judges by security forces.

“It is on account of negligence on the part of the legal profession that the DSS which screens candidates before they are recommended by the National Judicial Council (NJC) for appointment as judges has engaged in the arrest of judges for alleged corruption and abuse of office.”

The point is that Falana cannot merely be described as a closet “Buharist.” He is more accurately a thoroughgoing believer in the genuineness of Buhari’s aims in his vaunted anti-corruption campaign despite all the controversies it has generated.

Apparently also Falana believes that whatever means Buhari’s anti-corruption effort adopts in waging the war is justified or at the very least could be rationalised.

If a tyrannical dictatorship is being stealthily foisted on the country; if the independence of the judiciary, the rule of law, the constitution, due process or indeed democracy are all being undermined by Buhari’s anti-corruption campaign, it does not matter for Falana, so long as the campaign is seen to be bringing the heat on the corrupt, including those sitting on the bench.

It was therefore not surprising to many observers that when the President on January 25 unilaterally, or indeed extra-legally, removed Justice Walter Onnoghen, the Chief Justice of Nigeria (CJN), Falana would come up with oblique arguments to the effect that Onnoghen brought his travail upon himself.

According to Falana, it was Onnoghen himself that made the President act with disregard to the rule of law due to the expediency of the moment. He even maintained that the action bore no overt political undertone to it.

When asked by a reporter whether the President’s action was politically motivated ahead of the forthcoming general election, Falana neither answered the question directly or frankly, describing it only as speculative. “I do not know the basis for the speculation,” he said inter alia.

He insisted that even if Onnoghen is cleared of the charge of false asset declaration leveled against him by the federal government, he should still resign.

“The government should as a matter of urgency, lift the suspension on the Chief Justice since the Chief Justice as so much to on his own admitted that he did not declare his assets, he should do the needful by calling it quits,” he said.

Falana, who appeared to be speaking from both sides of his mouth, seems to maintain that Onnoghen’s hands are not clean even if the judicial process ultimately absolves him of the charge against him.

In a statement following Onnoghen’s sack by the President, Falana declared, “I have had cause to call on the Attorney-General of the Federation, Mr Abubakar Malami SAN to withdraw the charge of false declaration of assets filed against the Chief Justice of Nigeria, Justice Walter Onnoghen at the Code of Conduct Tribunal.

“The call was without prejudice to the merit of the serious allegations leveled against the Chief Justice. In line with decided judicial authorities, I had wanted the National Judicial Council to investigate the allegations.

“Unfortunately, the 88th statutory meeting of the National Judicial Council scheduled to hold on January 15, 2019, which could have deliberated on the matter and take an informed position was postponed indefinitely on the directive of the embattled Chief Justice.”

But the real questions before seemingly slippery Falana are the following: Is non-declaration of assets by a public officer of itself a violation of the code of conduct for public officers, for which the officer stands liable for removal?

By admitting that he did not declare his assets following his elevation to the office of CJN, was Onnoghen admitting to his guilty as charged?

Procedurally, a case of false assets declaration ought to first touch base with the Code of Conduct Bureau (CCB) before exceptional circumstances will have it proceed to the Code of Conduct Tribunal (CCT).

According to section 3 (d) of the Code of Conduct Bureau and Tribunal Act, 1991, a complaint against a public officer to the effect that he or she had not declared his/her assets must first be lodged before the CCB.

Should the officer admit in writing that the complaint against him/her is true, the matter would thus not necessarily have to proceed to the CCT.

Indeed the officer will be made by the CCB to make updates in respect to his assets declaration afterwards and it ends there.

Section 3 (d) of the CCB&T Act provides:  “The functions of the Bureau shall be to receive complaints about non-compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act: Provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the Tribunal shall be necessary.”

Now, the question: before ever the government approached the CCT with its case against Onnoghen, did it approach the CCB with it first?

In light of the above, it is clear that by Onnoghen admitting that he had yet to comply with the code for public officers requiring him to periodically make updates in respect to the declaration of his assets, his being made to face trial at the CCT by the Federal Government had become superfluous.

Thus why should Falana argue that since the CJN had admitted he had yet to declare his asset, then he had ipso facto admitted guilty as charged and liable for removal from office.

The Federal Government’s case against Onnoghen was reeled out by Alhaji Lai Mohammed, Minister of Information, recently is simple.

Mohammed said in a press briefing thus: “‘This whole issue is about the country’s highest judicial officer, the Chief Justice of Nigeria, being accused of a breach of the Code of Conduct for Public Officers, and the legal and moral conundrum surrounding that.

‘’It is about the suspicious transactions running into millions of dollars to the suspended CJN’s personal accounts, all undeclared or improperly declared as required by law.

‘’It is about the Hon. Justice Onnoghen himself admitting to the charges that he indeed failed to follow the spirit and letter of the law in declaring his assets, calling it a ‘mistake.’”

Against this backdrop, it is clear that the only case the Federal Government has against Onnoghen, for which it felt a cause of action had ripened in law, was simply his non-compliance with the code of conduct for public officers as regards assets declaration.

But in this, the Federal Government that is demanding legal rectitude from Onnoghen has shown itself as unwilling to be procedurally compliant with the law in addressing its case against the embattled jurist.

This is without prejudice to the rape of the constitution inflicted on the nation by the president in unilaterally removing the CJN, for which many have accused the President as taking to the path of tyrannical absolutism.

Now the question: Is Nigeria steadily descending into the rule of a tyrannical despot in light of the foregoing development?

According to Mark Van Vugt, an American political scientist, the seven steps to a nation falling under the rule of a dangerous dictator may be discerned when the ruler:

1. Begins to expand his power base through nepotism and corruption

2. Instigate a monopoly on the use of force to curb public protest

3. Get rid of your political enemies

4. Accumulate power by manipulating the hearts and minds of your citizens

5. Create an ideology to justify an exalted position, among others.

For Olisa Agbakoba (SAN), who had even gone so far as to bring a case in respect to the independence of the judiciary, recent developments shows that even the last vestige of judicial independence in Nigeria has completely been corroded under the current administration.

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