Onnoghen: An Unparalleled Siege on Nigeria’s Judiciary

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Chief Justice of the Federation, Justice Walter Samuel Nkanu Onnoghen

Under the President Muhammadu Buhari administration, Nigeria’s judiciary is facing the fiercest battle in the democratic history of the country. Not a few believe that the third arm of the government is under siege, writes Davidson Iriekpen

The four years of the President Muhammadu Buhari administration will go down in history as one that shook the judiciary to its very foundation. When a few months after he had assumed office, President Muhammadu Buhari gave an insight into what would happen in the judiciary under his tenure, nobody imagined the dimension it has taken so far.

Having made the fight against corruption one of the cardinal objectives of his government, the president during a town hall meeting with Nigerians living in Addis Ababa, Ethiopia, innocuously said at that occasion that the judiciary remained his main “a headache in the fight against corruption.”

According to him, corruption is so pervasive in the country that it requires the strong support of the third arm of government to effectively tackle the monster.

The president, who stated that he needed the support of the judiciary to win the anti-graft war, recalled that corruption in the judiciary stalled his presidential ambition for an upward of 12 years. He also promised to overhaul the country’s judicial system.
He said: “On the fight against corruption vis-à-vis the judiciary, Nigerians will be right to say that is my main headache for now.”

With this kind of remarks from the commander-in-chief, the discerning knew it was a matter of time before the arm of government, known as the last hope of the common man began to get all the attention.

Soon after the comment, he approached the National Assembly to grant him emergency powers. Due to the tendencies the administration was already exhibiting, his request was turned down by the National Assembly. Not only were people, especially members of the opposition parties arrested, but court orders were also disregarded and disobeyed.

For this reason, the National Assembly reasoned that granting the president emergency powers would make him a tyrant. Having failed to secure emergency powers, and other regular orders from the court granting bails to persons standing trial, the president turned on the judiciary, accusing it of being corrupt in the discharge of its statutory duties.

In October 2016, the Attorney General of the Federation and Minister of Justice, Abubakar Malami, alleged that his office received complaints from concerned members of the public over the corrupt practices of some serving judges of the superior court of record.
Consequent upon this, he directed the Department of State Service (DSS), whose primary duty is for intelligence gathering within the country and for the protection of senior government officials, to raid the homes of seven serving judicial officers of the Supreme, Federal and High Courts across the country at the wee hours of the night and arrested some of them.

The affected Justices of the Supreme Court were, Sylvanus Ngwuta and Inyang Okoro. Those from Federal High Court included Muazu Pindiga, Adeniyi Ademola, Abdullahi Liman, and Nnamdi Dimgba. The seventh judge, who was serving in Port Harcourt, Rivers State capital was saved from the raid and arrest following the intervention of the state governor, Nyesom Wike.

The outcry was massive, especially among lawyers, members of the National Assembly and the Nigeria Bar Association (NBA) but it was ignored.
While all these were going on, they did not know that bigger repression against the judiciary was underway. Then came who would succeed then outgoing Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, which is based on seniority in the Supreme Court bench.
As it is usually the tradition, the National Judicial Council (NJC) forwarded the name of Justice Walter Onnoghen to the President to be named the new CJN based on the recommendation of the Federal Judicial Service Commission.

On November 10, 2016, Buhari inaugurated him as the acting chief justice of Nigeria. But for his name to be sent to the National Assembly for confirmation, it took pressure and outcry from members of the public for steps to be taken.
After the first three-month tenure of Justice Onnoghen in an acting capacity, the pressure intensified due to speculations that the seniority rule at the Supreme Court would be truncated by the powers-that-be in the All Progressives Congress (APC), who were uncomfortable with having him as the head of the judiciary.

But as fate would have it, while the president was away on medical vacation, the Acting President, Prof. Yemi Osinbajo, forwarded Onnoghen’s name to the National Assembly for confirmation as the substantive CJN and was later sworn in.
From nowhere, a civil society group, the Anti-Corruption and Research-Based Data Initiative (ARDI), submitted a petition dated January 7, 2019, to the Code of Conduct Bureau (CCB), alleging a number of infractions committed by Onnoghen and within three days, without query and investigation, a six-count charge was filed before CCT, signifying that investigation had already been concluded before the petition was submitted to the CCB.

While many observers argued that it was a total misconception that Justice Onnoghen could not be tried, they also faulted the processes and steps taken by ARDI, CCB and the CCT.
Section 1(1) of the 1999 Constitution, says it is “supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.”

This needs to be stated clearly in view of the opinion of some sections that the CJN enjoys immunity. Section 308 of the 1999 Constitution, which provides for immunity clause does not cover the CJN. Hence, he is not above the law. Since everybody is subject to the law, the CJN, as “big” as he is can be charged and tried in both civil and criminal matters.
In any case, if the CJN is to be tried or charged for any offence whatsoever, it must be done according to the law. The position of the law is that any judicial officer including the CJN, cannot be tried by any court whatsoever, CCT inclusive unless the matter in question had been investigated and completely treated by the NJC.

This position was given judicial backing in the recent case of Nganjiwa vs Federal Republic of Nigeria 2018 4 NWLR Part 1609 Page 301, where it was clearly held that no serving judge in Nigeria could be tried or charged in any court, without the earlier investigation and sanction by the NJC.
Consequent upon this, it was argued that the charge and arraignment were both illegal and unconstitutional, ab initio.

Also, from the doctrine of stare decisis, the decision of the Court of Appeal in the case of Justice Nganjiwa vs the Federal Republic of Nigeria stands and is binding on all authorities and persons until upturned by the Supreme Court as provided for under Section 287(2) of the 1999 Constitution.
Analysts submitted that since the Supreme Court is yet to give a pronouncement on the decision, it stands to be the law which must be obeyed by all and sundry.
Second and most importantly is whether the CCT should try a judicial officer? A famous case appears to show that the CCB may be embarking on a journey in futility.

For instance, in May 2018, the CCT struck out the 10-count charge filed by the federal government against Justice Ngwuta of the Supreme Court, who was one of the judges whose residences were raided by the DSS in 2016 for concealing their assets.
Ngwuta’s lawyers argued that CCT lacked the jurisdiction to try him, based on sections 318, 158(1) and paragraph 21 (B) of the Third Schedule of the 1999 Constitution.
Before judgment could be delivered on the matter, the Court of Appeal had delivered judgment in the case of Justice Nganjiwa vs the Federal Republic of Nigeria. This made the CCT accept that it lacked the jurisdiction to hear and determine the case against Justice Ngwuta and consequently struck out the case.

And because nothing has changed since then, many analysts are wondering why the same CCB and CCT would assume jurisdiction in the case of Justice Onnoghen, when it knows that something cannot be placed on anything and expect it to stand.
Knowing that it has bungled the case against CJN, the federal government directed him to resign over the charges. To this end, on Wednesday, the AGF directed that his bank accounts be frozen. This has also generated outrage across the board.
This, perhaps, lent credence to the rumour that the petition and charges might not be unconnected with attempts by members of the APC, who were not happy having Justice Onnoghen at the helm of affairs in the judiciary especially appointing judges, who will adjudicate on disputes arising from the general election.

This is why a legal affairs analyst, Festus Ogun, described the action as a symptom of dictatorial tendency, abuse of power and invitation to tyranny.
“How possible is it to place something on nothing and expect it to stand? Respectfully, this is a symptom of dictatorial tendency, abuse of power and invitation to tyranny. In the first place, the charge and arraignment cannot stand as they are illegal.

“Let us assume, without conceding, that the charge stands, where does the federal government get the power to order the CJN to vacate his seat? That is acting ultra vires. The constitution has succinctly provided for the procedure in which the CJN can be removed under Section 292 which requires the support of the two-thirds majority of the Senate.
“It is my opinion that if the federal government wants the CJN removed for any reason whatsoever, the constitutional procedure must be strictly followed,” he said.
Many pundit have argued that if the federal government in its fight against corruption has refused to arraign and charge the Chairman, Special Presidential Investigative Panel for the Recovery of Property, Mr Okoi Obono-Obla, whose school certificate has been described as fake, “altered and invalid” by WAEC, former Secretary to the Government of the Federation (SGF) Lawal Babachir and many others accused of corruption, it exposes its hypocrisy.