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Errors and wrong paths on the suspension of the Chief Justice of Nigeria

There is a multiplicity of wrongs in the matter of the suspension of the Chief Justice of Nigeria. All parties involved contributed wrong steps. Fundamentally, Nigeria should follow the path spelled out clearly in our constitution.

The Federal Government should retrace its steps, withdraw the suspension of the Chief Justice of Nigeria Justice Walter Nkanu Samuel Onnoghen and end the illegal appointment of an Acting Chief Justice Ibrahim Tanko Mohammed.

President Muhammadu Buhari on Friday, 25 January 2019 suspended the Chief Justice of Nigeria, Mr Justice Walter Nkanu Onnoghen citing an exparte order of the Code of Conduct Tribunal. He appointed and swore in the next judge in the hierarchy, Mr Justice Ibrahim Tanko Mohammed. The President claimed as further justification the alleged lack of support for his anti-corruption fight by the Supreme Court headed by Onnoghen. He claimed they set free persons guilty of corruption.

The action of Mr President drew flaks nationally and internationally. The Nigerian Bar Association and individual lawyers described the action as illegal for failing to follow constitutional stipulations on the removal of a Chief Justice. The global community, including the United States, the United Kingdom and the European Union, also raised queries both about due process and how close the action is to the upcoming General Elections.

Suspension of the Chief Justice of Nigeria and his replacement failed to comply with the rule of law, due process, fair hearing and adherence to process and procedures. The president’s claim that the Supreme Court frees persons guilty of corruption smacks of an entitlement mentality that expects the Supreme Court to try cases not based on law but on the wishes of the President.

There are too many wrong and disturbing turns in the narrative of the suspension of the Chief Justice of Nigeria, a very rare occurrence.

First, the federal government worked to a predetermined end from the beginning. It committed errors in the process. It commenced with a petition against the CJN by a former associate of the president. It came on a Thursday and received the fastest treatment in the history of Nigerian bureaucracy as it was scheduled for hearing the next Monday. In-between, a media leak and trial commenced on Saturday with disclosures of the petition and the purported statement of the CJN in defence.

The petitioner had access to all the confidential records of the CJN, implying a deliberate breach of professional ethics by bodies entrusted with safeguarding the information. These are the Code of Conduct Bureau and the Department of State Security.

The CJN according to the leaks admitted the infractions of failure to update his records with the Conduct Bureau upon becoming CJN and failure to declare other assets. He claimed forgetfulness. In another error, he also failed to enter a plea either way to the hearing but challenged the jurisdiction of the CCT. Nor did he recuse himself, on moral grounds, though it was the objective of his traducers.

The gravamen of the presidential action is said to be compliance with the order of the Code of Conduct Tribunal. Unfortunately, the order of the CCT is defective in failing to comply even with practice direction. The CCT sat on 22 January 2019 and adjourned to 28 January 2019 to adjudicate on the matter of the CJN and the challenge to the jurisdiction of the court. Suddenly on Friday, January 25, the presidency disclosed that the CCT granted it an exparte order on Wednesday, January 23 based on which it suspended the CJN.

The CCT’s orders were clear. It asked the CJN to step aside “over allegation of contravening the provisions of the code of conduct and Tribunal Act Cap 215 Laws of the Federation 2004”. It also asked the President to “take all necessary measures to swear in the most senior Justice of the Supreme Court of Nigeria as Acting Chief Justice of Nigeria and Chairman National Judicial Council in order to prevent a vacuum in the judicial arm of government pending the determination of the motion on notice.”

The Federal Government read “all necessary measures” to mean suspension of the Chief Justice of Nigeria. There was no fair hearing nor any clear urgency. No one is on record as moving the motion requesting the exparte order. The lacuna is evidence of either haste or incompetence. Justice Onnoghen could not “step aside” as he was unaware of this directive.
Or could he not? The Chief Justice postponed a meeting of the National Judicial Council that would probably have discussed the matter of his case before the Code of Conduct Tribunal. Even so, there was no petition to the National Judicial Council necessitating a meeting which the next in line could have chaired.

There is also the matter of the status of the Code of Conduct Tribunal. It is an administrative court under the office of the Secretary to the Government of the Federation. It means the Executive procured an order from an arm of the Executive to use against the Judiciary. It is not in line with the procedure for punitive action on judicial officers, not least the Head of that arm of Government.

Despite the many errors on the path of this suspension, the fundamental one is that of failure of the FG to comply with due process, follow laid down procedures and thereby uphold the rule of law. Justice Walther Nkanu Onnoghen should and must answer to any illegalities he may have committed. He should do so once the Federal Government reverts to status quo and follows the right path to its destination.

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