Rogers E Ochela
Friday, January 25, 2019, was probably just like any other for Justice Walter Nkannu Samuel Onnoghen, the Chief Justice of Nigeria, CJN. He woke up like other Nigerians full of expectations that day will be a harbinger of good tidings. But how wrong he was! On that day, President Muhammadu Buhari punctured his self-confidence and optimism when he slammed him with a suspension order bordering on allegations of non-declaration of assets and corruption.
In a nationwide broadcast, President Buhari, who regaled Nigerians with the story of how Onnoghen failed to declare his assets in accordance with the provisions of the law, further said that security agencies have traced other suspicious transactions running into millions of dollars to the CJN’s personal accounts, all undeclared or improperly declared as required by law.
The President said: ‘’Perhaps more worrisome is the Chief Justice of Nigeria’s own written admission to the charges that he indeed failed to follow the spirit and letter of the law in declaring his assets, citing ’’mistake’’ and ’’forgetfulness’’ which are totally unknown to our laws as defences in the circumstances of his case.
‘’One expected that with his moral authority so wounded, by these serious charges of corruption, more so by his own written admission, Mr. Justice Walter Onnoghen would have acted swiftly to spare our Judicial Arm further disrepute by removing himself from superintending over it while his trial lasted.
‘’Unfortunately, he has not done so. Instead, the nation has been treated to the sordid spectacle of a judicial game of wits in which the Chief Justice of Nigeria and his legal team have made nonsense of the efforts of the Code of Conduct Tribunal to hear the allegation on merit and conclude the trial as quickly as possible considering the nature of the times in which we live’’, the President said.
The President went further to say that since the trial of Justice Onnoghen started, the nation has witnessed various courts granting orders and counter-orders in favour of the Chief Justice, ‘’all of them characterized by an unholy alacrity between the time of filing, hearing and delivery of judgment in same.
Citing the Order of Code of Conduct Tribunal dated 23rd January 2019 as the plank for his action against Onnoghen, the President said with a tone of finality: ‘’I hereby suspend the Honorable Mr. Justice Walter Nkanu Samuel Onnoghen, GCON as the Chief Justice of Nigeria pending final determination of the case against him at the Code of Conduct Tribunal’’.
Recall that a civil society group, Anti-Corruption and Research Based Data Initiative (ARDI), was reported to have launched the legal move against Onnoghen through a petition to the Code of Conduct Bureau (CCB), listing a number of allegations against him, chiefly false declaration of assets.
In the petition dated January 7, 2019, the group accused Onnoghen of owning “sundry accounts, primarily funded through cash deposits made by himself up to as recently as 10th August 2016, which appear to have been run in a manner inconsistent with financial transparency and the code of conduct for public officials”.
For instance, the group said Onnoghen made five different cash deposits of $10,000 each on March 8, 2011, into Standard Chartered Bank Account 1062650; two separate cash deposits of $5000 each followed by four cash deposits of $10,000 each on June 7, 2011; another set of five separate cash deposits of $10,000 each on June 27, 2011, and four more cash deposits of $10,000 each the following day.
In addition, the group noted that Onnoghen did not declare his assets immediately after taking office, contrary to section 15 (1) of Code of Conduct Bureau and Tribunal Act; and that he did not comply with the constitutional requirement for public servants to declare their assets every four years during their career.
The group further noted that his Code of Conduct Bureau Forms (Form CCB 1) for 2014 and 2016 were dated and filed on the same day and the acknowledgement slips were issued for both on December 14, 2016 — at which point, they said, Onnoghen had become the CJN, having assumed office on March 6, 2017.
It would be recalled that prior to the suspension order slammed on him, the Code of Conduct Bureau, CCB, on January 7, 2019, allegedly received the petition against the CJN and between that date and 14th January, 2019, treated the petition and filed charges against the CJN.
Investigations conducted by ABT revealed that several Nigerians were scandalized by the speed of that process, making many to wonder whether that speed did not signify that the FGN was coordinating the plot to remove the CJN from office.
The publicised demand of the Federal Executive Branch of Government for the resignation of the CJN from office, and the hollow and flat statement made by Vice President Prof. Yemi Osinbajo, claiming the President was not aware of the travail of the CJN before he was charged were pointers that the Buhari Administration was the resolute and implacable force behind the effort to remove the CJN from office.
When the CJN was confronted with the particulars of his infractions, upon the receipt of a petition from an NGO that submitted same, calling for his probe and prosecution, he made a ‘confession’.
In a written statement, he admitted the ownership of the bank accounts and the sums therein contained, but claimed that he forgot to declare the bank accounts.
According to the embattled Justice Onnoghen: “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.”
Appointment and Installation of another CJN
In the meantime, the President in the exercise of powers conferred on him by Section 231(4) of the Constitution has appointed and sworn in Justice Ibrahim Tanko Muhammed to take over from Onnoghen as Acting Chief Justice of Nigeria.
While swearing in Justice Muhammed at the Presidential Villa, President Buhari said that the suspension of Justice Onnoghen was based on the request of the Code of Conduct Tribunal (CCT), pending the completion of his trial.
Those who witnessed the event included Secretary to the Government of the Federation (SGF), Mr Boss Mustapha, Abubakar Malami (Justice and Attorney-General of the Federation), Audu Ogbeh (Agriculture), Adamu Adamu (Education), and Zainab Ahmed (Finance), among others.
NJC steps in
In a determined bid to save the judiciary from further avoidable crisis, the National Judicial Council gave the suspended Justice Walter Onnoghen and his successor, Justice Ibrahim Tanko Muhammed seven days to respond to petitions written against them.
The NJC said in a communiqué at the end of its recent emergency meeting that it received two petitions against Mr. Muhammad and one against Mr. Onnoghen. A fourth petition was written against the chairman of the Code of Conduct Tribunal, Danladi Umar.
According to the NJC, it addressed three of the petitions and directed the one against Mr. Umar to the Judicial Service Commission for further action.
The NJC meeting was presided over by a former President of the Court of Appeal, Umaru Abdullahi.
What the Law says about suspension of judicial officers
A perusal of the nation’s grundnorm on removal or suspension of judicial officers indicates clearly how unambiguous the procedure is. In Section 292(1)(a)(i) of the Constitution, the CJN cannot be removed from his office or appointment before his retirement age (or suspended from office while the real intention is to secure his removal) except by the President, acting on an address supported by two-thirds majority of the Senate.
Similarly, the National Judicial Council, NJC, by virtue of paragraph 21(b) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) recommends to the President the removal from office of certain category of judicial officers including the CJN, and exercises disciplinary control over them.
Section 18, Part 1 of the Fifth Schedule to the Constitution defines the power of the CCT. In particular, Section 18 (2) stipulates the punishment which the CCT may impose upon conclusion of trial. They are: (a) vacation of office or seat in any legislative house as the case may be; (b) disqualification from membership of a legislative and from the holding of any public office for a period not exceeding ten years; and (c) seizure and forfeiture to the State of any property acquire in abuse or corruption of office.
A high preponderance of legal pundits are of the opinion that the CCT is not vested with any power under the Constitution or the Code of Conduct Tribunal Act to order the Executive Branch of Government to suspend a public officer who is undergoing trial before it, from office, pending the conclusion of trial, as the CCT has purportedly done in this present case of Justice Onnoghen.
Equally instructive is the fact that being a quasi criminal tribunal, the rules of procedure of the CCT is the Administration of Criminal Justice Act, a criminal procedure under which an ex parte or interlocutory order, analogous to an order of injunction obtainable in civil proceedings (under the civil procedure of our courts) may not be validly sought or granted.
PENALTIES FOR NON-DECLARATION OF ASSETS
By virtue of section 23 of the Act, where the Tribunal finds a public officer guilty of contravening any of the provisions of this Act, it shall impose upon that officer any of the punishments specified under section 23 (2).
The punishment which the Tribunal may impose includes vacation of office; disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and seizure and forfeiture to the State of any property acquired in abuse or corruption of office. The section goes further to provide that where the breach of conduct is also a criminal offence under the Criminal Code or any other enactment or law, the punishments mentioned in subsection (2) shall be without prejudice to the penalties that may be imposed by the Criminal Code or any other such enactment or law.
The Act covers all public officers, including the President and the Chief Justice of Nigeria amongst other top public officers. The Act prohibits the operation of foreign bank accounts; bribery and abuse of power to the detriment of others.
In Bauchi State, the Code of Conduct Tribunal reported convicted 16 civil servants and political office holders found guilty of non-declaration of assets.
According to Ibrahim Alhassan, the Head of Press and Public Relations of the CCT, the convicted persons failed to submit a written declaration of all their assets and liabilities within the prescribed period of three months that violated various provisions of the Code of Conduct Bureau and Tribunal Act.
Reactions of the Opposition
As usual, opinions on the matter are sharply divided. While a section of the public is of the view that the President acted illegally and unconstitutionally citing the provisions of Section 292 of the Constitution, which guarantees security of tenure for judicial officers, especially the CJN, other section hails the action of the President, contending that it is premised on a valid and subsisting order of the CCT, which has not been set aside, and which is incumbent on the President to enforce.
In his reaction, Atiku Abubakar, the presidential candidate of the Peoples Democratic Party (PDP) in a statement, warned against what he described as the forceful removal of the CJN.
The PDP flag bearer also faulted the CCB for moving the case to the CCT, just as he stressed that Nigerians will resist any attempt by the Buhari presidency to intimidate the judiciary.
Similarly, Chief Edwin Clark, an elder statesman and a foremost Niger Delta leader, announced that the Niger Delta people will resist the alleged plot to remove Onnoghen.
In its own reaction to the development, the Senate has filed a suit before the Supreme Court praying for among others, an order reinstating Justice Walter Onnoghen as the Chief Justice of Nigeria.
In a suit marked SC.76/2019, the Senate asked the apex court to declare the suspension of Onnoghen without the support of two-thirds majority of the Senate as a violation of Section 292(1)(a)(i) if the constitution.
It also prayed the apex court to issue an order restraining the two defendants in the suit—President Buhari and the Attorney-General of the Federation, Mr. Abubakar Malami—from continuing or repeating the violation of the constitution and disregarding the power of the Senate in respect of the suspension of the CJN.
Meanwhile, the Nigerian Bar Association, NBA, after an exhaustive emergency National Executive Committee meeting, has said that it will only recognize Onnoghen as the CJN, maintaining that due process was not followed in the suspension of Onnoghen. It consequently ordered its members across the country to boycott the courts for two days in protest against Onnoghen’s suspension.
Toeing the line of the NBA, 67 political parties, including the Peoples Democratic Party, PDP, in a document signed by their chairmen, have denounced the suspension of Onnoghen.
The parties said that the ‘’CJN, as a judicial officer, can only be removed from office by the President acting on an address supported by two-thirds majority of the Senate for his inability to discharge the functions of his office or appointment or for misconduct or contravention of the code of conduct’’.
Also, a former President of the NBA, Olisa Agbakoba (SAN), has submitted a petition against Justice Tanko Muhammed, who was appointed as a replacement for Onnoghen.
Not to be left out in the condemnation of the presidential act considered in some quarters as a ‘’coup’’ against the judiciary are some activists and lawyers, including members of the National Interest Defenders, Lawyers in Defence of Democracy. These bodies have registered their displeasure over the development. Armed with placards with different inscriptions such as ‘’Tanko Muhammed stop parading yourself as CJN’’, ‘’NBA must act now by ordering lawyers to down tools’’, ‘’Amaechi, el-rufai, Akpabio, Malami, APC; brains behind Onnoghen’s trial’’ and ‘’NJC must reconvene now and expel Justice Muhammed’’, they marched through the streets protesting the development.
Implications on Elections, Democracy
Several legal experts and political analysts have described the on-going brick-bat as totally unhealthy for the nation’s judiciary. As a matter of fact, some have said that the move is laced with political undertones targeted at the forthcoming general elections.
While some said that the executive branch of the government desired the ouster of the CJN from office to actualise its pre-conceived motive of installing a pliant chief justice that will do its dirty bidding at election tribunals, insisting that the government worked closely with a shadowy NGO to dredge up CJN Onnoghen’s infractions of provisions of the Code of Conduct for Public Officers. Many of these infractions predated the appointment of Justice Onnoghen as the CJN in 2017.
However, those with anti-government sentiments said that the motive for using the allegations was borne out of the fear that the judiciary presided over by Onnoghen could do harm to political interests of the ruling party, especially regarding pre-election cases and election petitions.
Personalities like the presidential candidate of the opposition PDP, Atiku Abubakar are of the believe that Buhari was desperate to get Onnoghen out of the way and appoint a pliant figure as Acting CJN and who will be made to superintend over election petitions in case his well laid out rigging plan fails. But in a counter reaction, the National Publicity Secretary of the APC, Mallam Lanre Issa-Onilu in a press statement alleged that the Peoples Democratic Party PDP and its presidential candidate, Atiku Abubakar has continued to whine over the suspension of the Chief Justice of Nigeria CJN, Walter Onnoghen because the opposition party had planned to use the top jurist to get back to power at all costs.
According to him, the Rivers State Governor, Nyesom Wike’s influence on Justice Onnoghen and a few others in the Judiciary is well-known. ‘’There was this trump card to hijack power post-election. It is clear that Justice Onnoghen’s suspension has devastated the PDP as their plans to get back to power through the “cash and carry” justice system they put in place during their unfortunate 16 years reign is in serious jeopardy.
A sizeable percentage of political pundits are equally on the same page in their condemnation of the suspension, stressing that its closeness to the commencement of the 2019 general elections could be disastrous and capable of generating unprecedented crisis that has all the potentials of torpedoing the elections.
Similar Occurrences in Other Countries
While it is rare to have judges cavalierly thrown over the bench in other parts of the world, however, in Philippines, the Supreme Court once reportedly voted to remove its top judge, Maria Lourdes Sereno, whom President Rodrigo Duterte called an “enemy” for voting against controversial government proposals, citing violations in the way she was appointed.
By a vote of 8-6, the court granted the government’s petition to cancel Sereno’s appointment on the grounds of alleged violations in the appointment process.
Sereno was the first chief justice to be removed by her peers and the second top judge to lose the position after her predecessor was impeached for non-disclosure of wealth.
Similarly, in Sri Lanka, Shirani Bandaranayake, the 43rd Chief Justice of the country was impeached by the Parliament and then removed from office by President Mahinda Rajapaksain in January 2013. Bandaranayake was accused of a number of charges including financial impropriety and interfering in legal cases, all of which she denied. The impeachment followed a series of rulings against the government by the Supreme Court, including one against a Bill proposed by Minister Basil Rajapaska, President Rajapaksa’s brother.
Bandaranayake was replaced as chief justice by former Attorney-General Mohan Peiris, considered to be an ally of President Rajapaksa.
Bandaranayake’s controversial impeachment drew much criticism and concern from within and outside of Sri Lanka, a development that facilitated her reinstated and subsequent retirement on 29 January, the next day.
Judging from all the legal fireworks over this incidence, it is safe to conclude that certain provisions of the law have been trampled upon by the executive arm of government. Abuja Times is of the firm belief that in the present circumstance, the government knew there were constitutional obstacles against its alleged desire to remove Onnoghen from office, but still went ahead to overheat the polity.
Relevant stakeholders are of the opinion that the suspension of Onnoghen was an abuse of power, just as it erodes the independence of the judiciary. In the same vein, it creates a scary precedent allowing the executive acting by itself or through selected surrogates or proxies, to file a petition before the CCB and casually and interminably saunters into the CCT to obtain an ex parte order against an judge, suspending him from office, pending the determination of the charge that is filed against him or her by the CCB or the conclusion of his trial.
If this precedent were to be become a permanent rule of law, the security of tenure that is granted to judicial officers under the constitution will be jeopardized.