Former Chairman of the Nigerian Bar Association, Abuja Branch, Mr. Victor Abasiakan-Ekim ) tells Vanessa Obioha that attacking judiciary, which is the bedrock of democracy in Nigeria sends wrong signals
Is there a law that stops the CJN from prosecution or confers judicial protection or immunity on him?
It is the law that the Chief Justice of Nigeria (CJN) does not enjoy immunity from prosecution in a court of law or tribunal. It is also not in doubt that that the CJN is a judicial officer. The body responsible for the regulation of conduct and/or misconduct of a judicial officer is the National Judicial Council. However, there is a unique procedure for the interdiction, discipline, removal and prosecution of a judicial officer including the CJN. It is the law that where the allegation(s) amounting to a misconduct against a judicial officer is/are connected with, and/or incidental to the performance or non-performance of the functions of his office, a report must be made to the National Judicial Council (NJC). The NJC would then investigate the allegations against the CJN, demand an explanation from him and where the NJC is not satisfied with the explanation, the NJC will then forward its recommendation to the President of the Federal Republic of Nigeria that the CJN be removed from office for a breach of the latter’s oath of the office as a judicial officer and then prosecuted. It is only after the NJC has concluded her findings and forward same to the President of the Federation, that the CJN can be removed from office. Thereafter, prosecuting agencies can then proceed to file charges against the indicted CJN. The essence of the recommendation of the NJC is to prevent the denigration of the exalted office of a judicial officer and the desecration of the temple of justice. This is the pith of the decision of the Court of Appeal in Nganjiwa v. Federal Republic of Nigeria (2017) LPELR-43391 (CA).
Can he retain his office while facing prosecution?
I believe that while responding to the first question, I’ve dealt with this question. The issue of prosecution of the CJN does not arise until the NJC has made a finding of fact of an infraction of the law by the CJN and a recommendation for his removal from office is acted upon by the President of the Federal Republic. While under investigation of the NJC, the CJN remains in office until he is removed from office by due process of law. Charges ought to be filed after the removal from office and in which case, the CJN ceases to hold office while under prosecution. So, until the CJN is investigated and indicted by the NJC, he cannot be called upon to resign or cease to carry out the functions of his office. This is the beauty of the doctrine of separation of powers and the concept of checks and balances. In a democratic setting, no one arm of government should railroad the leadership of another arm of government.
What avenues of defense are open to him?
I cannot say off the cuff, what line of defenses are available to the CJN as I am not a part of his legal team. I have not heard His Lordship’s side of the story hence, it would be most unprofessional and speculative for me to attempt to raise imaginary and academic defenses, especially on a charge that has not met condition precedent to the exercise of jurisdiction of court.
Is there a precedence, if not what does this portend for the judiciary and democracy?
There has never been a precedent for this sad occurrence in the history of Nigeria. The National Judicial Council (NJC) was established to insulate judicial officers from political persecution and unnecessary interference in the exercise of the functions of their office. For the executive to overreach the judiciary by bypassing the NJC in seeking to discipline and prosecute the CJN on allegation of crime or other infractions is a very dangerous trend. Assuming without conceding that thereis a valid case against the CJN, what injustice would the executive suffer if due process of law is followed in the pursuit of the removal of the CJN from office? To file a charge at the Code of Conduct Tribunal and on the basis of unproven allegations contained therein, ask the CJN to resign makes nonsense of the right to presumption of innocence guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended). The judiciary is under threat, judicial officers are being cowered. The act is attacking the bedrock of democracy in Nigeria, the timing is wrong in view of next month’s national elections. It sends wrong signals to the international community and our foreign investors.
Assuming the CJN is guilty, why were allegations not brought forward before his time?
Honestly, I am unable to answer this question. I believe these facts were known at the time of appointment and confirmation of the CJN. Why wait till few days to a national election to raise them and seek prosecution? It makes one question the motive. Why not follow due process of law in the removal of the CJN if there are valid reasons to do so? To do otherwise, is to tether towards injustice. In fact, that is another form of corruption.
What is the trial of the CJN likely to do the credibility of the judiciary?
The move to try the CJN will simply send shivers down the spine of other judicial officers. Our judges will begin to look over their shoulders in fear while carrying out the functions of their office. If the CJN can be attacked in such manner, what become of the other judges. It is a sad tale in the annals of our judicial history. The temple of justice has been desecrated and the symbol of justice raped. The credibility of judiciary in Nigeria has been jettisoned and the sharks are waiting to swallow.
How are his colleagues in the SC likely to react? Won’t create cleavages in the SC-for and against?
According to William Shakespeare, “there is no art in the face to find the mind’s construction.” I do not want to delve into any area predicated on conjecture, as I cannot read the human mind. However, the move is one capable of creating unhealthy rivalry and division on the structure of the apex court.
Should this be perceived as another persecutionof a high ranking official of government from the south to make way for a northerner?
The act is one which ought to be deprecated by all and sundry. The leadership of the Bar has condemned the act, Senior Advocates of Nigeria have lent their voices to the chorus. Indeed, lawyers in Nigeria seem to have a common position that this is all shades of wrong. However, I will rather want to downplay the ethnic card here. Would the attempt be right if the CJN was from any other part of Nigeria? What is wrong is wrong in all ramifications.