Onnoghen’s Suspension, Assault on Separation of Powers

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Walter Onnoghen
Walter Onnoghen

By Tobi Soniyi

Under the presidential system which Nigeria operates, powers are shared among the three arms of government: executive, judiciary and legislature.

The legislature makes the laws, the executive executes the law while the judiciary interprets the law.

The three arms are to be independent of one another.

With the decision of President Muhammadu Buhari to suspend the Chief Justice of Nigeria, Justice Walter Onnoghen, the executive appears to have overreached both the judiciary and the legislature.

According to reports, Buhari suspended Onnoghen, pending the completion of his trial at the Code of Conduct Tribunal.

The president announced the suspension at the Council Chamber of the Presidential Villa, Abuja on Friday.

He said the suspension followed the order of the CCT directing him to suspend Onnoghen, pending the completion of his trial.

The president consequently swore in Justice Ibrahim Tanko Mohammed as the acting CJN. Mohammed who hails from Bauchi state is the most senior justice of the Supreme Court.

The president did not cite any law that empowered him to suspend the CJN in this circumstance. He only cited an order of the CCT. May be because there is no such law.

Even if such order exists, it will still amount to an aberration. As at the time the president made the purported suspension, CCT has yet to determine the allegation against the CJN.

Provisions of the 1999 Constitution (as amended) on the removal of Chief Justice of Nigeria are explicit.

Section 292. (1) provides: “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.”

However, those who rationalise every action of the president may argue that the power to remove the CJN is inherent in his power to appoint. This will not be correct because even the power to appoint is not absolute. He shares the power with the National Judicial Council and the National Assembly.