Over the weekend, the Federal Government slammed six counts against the Chief Justice of Nigeria, Justice Walter Onnoghen, over his alleged refusal to declare his assets. The news of the arraignment which is scheduled to hold today (Monday, January 14, 2019) has generated heated and endless controversies. In this legal opinion, attempts would be made to resolve a few of the cogent issues; not just for the Justice Onnoghen’s case but for the sake of our democracy and the rule of law.
First, it is a total misconception that the Chief Justice of Nigeria cannot be tried. By virtue of Section 1(1) of the 1999 Constitution, the “Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.” This needs 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.
That said, in any occasion where 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 (the CJN included) cannot be tried by any court whatsoever (Code of Conduct Tribunal, inclusive) unless the matter in question had been earlier investigated and completely treated by the National Judicial Council. This position was given judicial backing in the recent case of NGANJIWA V. FEDERAL REPULIC OF NIGERIA 2018 4 NWLR Part 1609 Page 301 where it was clearly held that no serving judge in Nigeria can be tried or charged in any court, without the earlier investigation and sanction by the NJC.
Consequently, the charge and arraignment are illegal and unconstitutional, ab initio. From the doctrine of stare decisis, the decision of the Court of Appeal in the above case stands and binds on all authorities and persons (unless upturned by the Supreme Court) as provided for under Section 287(2) of the 1999 Constitution. And since the Supreme Court has yet to give a pronouncement on the decision, it stands to be the law which must be obeyed by all and sundry.
The charge and arraignment are therefore too watery to stand the test of legality. The Federal Government is a creation of the law and cannot be above the law. The rule of law must be respected for it is the bedrock of our democracy. The Supreme Court in MILITARY GOVERNOR OF LAGOS STATE V. OJUKWU (2001) FWLR (Part 50) 1779 in explaining the relevance of the rule of law to our democracy held that “government should be conducted within the framework of recognised rules and principles which restrict discretionary powers.” If the Federal Government cannot respect and uphold the rule of law in its dealing, then, we should all be prepared for chaos, anarchy and unimaginable disaster in our democracy.
The next question that follows is: Being a member and the Chairman of the NJC, would it not occasion a miscarriage of justice for Justice Onnoghen to sit on his matter? In my humble view, the CJN, although part of the NJC, should be excluded from the panel which would be constituted to determine his guilt. It will amount to a breach of one of the cardinal principles of natural justice “nemo judex in causa sua” for him to be a judge in his own cause. See GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 550.
Shockingly, according to news reports, the Federal Government also directed the CJN to resign over these illegal charges. 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 by the two-third 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.
Reports from the media also have it that the CJN explained, in a statement given to the Code of Conduct Bureau, that he “forgot to update his asset declaration, after the expiration of the 2005 declaration”. If this statement is anything to go by, with due respect, it is embarrassing and unfortunate. However, legally speaking, that would not necessarily mean he is guilty. Under Section 36(5) of the 1999 Constitution, the CJN is still presumed innocent until proved otherwise by the rightful authorities. Therefore, the media reports, if true, will not alter the position of the law as to the CJN’s innocence until and after the constitutionally recognised authority gives its verdict. Just the same way the alleged millionaire kidnapper Chukwudumeme Onwuamadike popularly known as Evans, who admitted his guilt both in court and on national TV, is still very much innocent until the court decides otherwise.
In the final analysis, it will be apposite to question the sincerity of the Federal Government in this case. The speed given to the petition makes one fear the sincerity of the Federal Government’s purpose in the matter: fight against corruption or a malicious ‘persecution’? Come to think of it, the petition dated January 7, 2019 was said to have been received by the Chairman of the CCT on January 9, and within three days, they made their investigations and consequently are ready to arraign the CJN? Obviously, the hastiness should give an average Nigerian the benefit of suspicion.
Whereas 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. This is not to say that the CJN should be ‘left alone’ as two wrongs will not make a right, but to call the attention of Nigerians to the hypocrisy of the Federal Government and the irony of its fight against corruption.
The judiciary is the last hope of the common man. The Federal Government must desist from any form of intimidation and harassment aimed at the judiciary. The whole media trial and lawlessness deployed in this matter are enough to undermine the dignity and sanctity of the judiciary and the trust in which the public reposes in it. And this is not to say that judicial officers should not be tried if found wanting; but it must be done in accordance with the law of the land. The rule of law must reign, even in the most uncomfortable situation. Let the Federal Government go ahead to act on the petition against the CJN who is not above the law (and has not claimed to be) but in the appropriate and lawful manner.
First, it is a total misconception that the Chief Justice of Nigeria cannot be tried. By virtue of Section 1(1) of the 1999 Constitution, the “Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.” This needs 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.
That said, in any occasion where 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 (the CJN included) cannot be tried by any court whatsoever (Code of Conduct Tribunal, inclusive) unless the matter in question had been earlier investigated and completely treated by the National Judicial Council. This position was given judicial backing in the recent case of NGANJIWA V. FEDERAL REPULIC OF NIGERIA 2018 4 NWLR Part 1609 Page 301 where it was clearly held that no serving judge in Nigeria can be tried or charged in any court, without the earlier investigation and sanction by the NJC.
Consequently, the charge and arraignment are illegal and unconstitutional, ab initio. From the doctrine of stare decisis, the decision of the Court of Appeal in the above case stands and binds on all authorities and persons (unless upturned by the Supreme Court) as provided for under Section 287(2) of the 1999 Constitution. And since the Supreme Court has yet to give a pronouncement on the decision, it stands to be the law which must be obeyed by all and sundry.
The charge and arraignment are therefore too watery to stand the test of legality. The Federal Government is a creation of the law and cannot be above the law. The rule of law must be respected for it is the bedrock of our democracy. The Supreme Court in MILITARY GOVERNOR OF LAGOS STATE V. OJUKWU (2001) FWLR (Part 50) 1779 in explaining the relevance of the rule of law to our democracy held that “government should be conducted within the framework of recognised rules and principles which restrict discretionary powers.” If the Federal Government cannot respect and uphold the rule of law in its dealing, then, we should all be prepared for chaos, anarchy and unimaginable disaster in our democracy.
The next question that follows is: Being a member and the Chairman of the NJC, would it not occasion a miscarriage of justice for Justice Onnoghen to sit on his matter? In my humble view, the CJN, although part of the NJC, should be excluded from the panel which would be constituted to determine his guilt. It will amount to a breach of one of the cardinal principles of natural justice “nemo judex in causa sua” for him to be a judge in his own cause. See GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 550.
Shockingly, according to news reports, the Federal Government also directed the CJN to resign over these illegal charges. 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 by the two-third 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.
Reports from the media also have it that the CJN explained, in a statement given to the Code of Conduct Bureau, that he “forgot to update his asset declaration, after the expiration of the 2005 declaration”. If this statement is anything to go by, with due respect, it is embarrassing and unfortunate. However, legally speaking, that would not necessarily mean he is guilty. Under Section 36(5) of the 1999 Constitution, the CJN is still presumed innocent until proved otherwise by the rightful authorities. Therefore, the media reports, if true, will not alter the position of the law as to the CJN’s innocence until and after the constitutionally recognised authority gives its verdict. Just the same way the alleged millionaire kidnapper Chukwudumeme Onwuamadike popularly known as Evans, who admitted his guilt both in court and on national TV, is still very much innocent until the court decides otherwise.
In the final analysis, it will be apposite to question the sincerity of the Federal Government in this case. The speed given to the petition makes one fear the sincerity of the Federal Government’s purpose in the matter: fight against corruption or a malicious ‘persecution’? Come to think of it, the petition dated January 7, 2019 was said to have been received by the Chairman of the CCT on January 9, and within three days, they made their investigations and consequently are ready to arraign the CJN? Obviously, the hastiness should give an average Nigerian the benefit of suspicion.
Whereas 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. This is not to say that the CJN should be ‘left alone’ as two wrongs will not make a right, but to call the attention of Nigerians to the hypocrisy of the Federal Government and the irony of its fight against corruption.
The judiciary is the last hope of the common man. The Federal Government must desist from any form of intimidation and harassment aimed at the judiciary. The whole media trial and lawlessness deployed in this matter are enough to undermine the dignity and sanctity of the judiciary and the trust in which the public reposes in it. And this is not to say that judicial officers should not be tried if found wanting; but it must be done in accordance with the law of the land. The rule of law must reign, even in the most uncomfortable situation. Let the Federal Government go ahead to act on the petition against the CJN who is not above the law (and has not claimed to be) but in the appropriate and lawful manner.
Mr. Festus Ogun, a final year law student and constitutional law enthusiast at Olabisi Onabanjo University, wrote in via festusogunlaw@gmail.com 09066324982
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