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Since the suspension of Walter Onnoghen as the chief justice of Nigeria, and appointment of Tanko Mohammad as the acting CJN by President Muhammadu Buhari, the Nigerian polity is mired in controversy and fear of the impeding constitutional and political crisis
By Olu Ojewale
IT has been a trying week for Nigeria and Nigerians across the world. The controversy over the suspension of Justice Walter Onnoghen, the chief justice of Nigeria, by President Muhammadu Buhari on Friday, January 25, and the appointment of Justice Tanko Muhammad in acting position, has helped to raise some constitutional issues about its legality and otherwise. Buhari’s action has, no doubt, raised some dust in polity and scepticism among the members of the comity of nations, which if not carefully tackled may lead to serious crisis in the country, especially now that the nation’s general elections are now just a matter of days away.
The matter is raising so much controversy that many political watchers are afraid that the coming elections may not hold or delayed if all the issues are not carefully and legally addressed to give hope to Nigerian electorate that their votes would count in the elections.
While the situation was spinning into a dangerous bend, the Nigeria Judicial Commission, NJC, mercifully stepped in and on Tuesday, January 29, queried Onnoghen and Muhammad. The two justices were given seven working days to answer the query. The NJC also queried Justice Danladi Umar, the chairman of the Code of Conduct Tribunal, CCT, who is said to be under investigation for corruption. Onnoghen is facing trial for his alleged failure to declare certain parts of his asset.
The legislative arm of the government, on its part, filed a suit before the Supreme Court on Monday, January 28, praying for among others, an order reinstating Onnoghen as the chief justice of Nigeria.
The suit was filed by Paul Erokoro, SAN, counsel to the Senate, came after it cancelled its scheduled plenary earlier billed for Tuesday, January 29. Nelson Ayewoh, the clerk of the Senate, who announced the cancellation in a statement signed by him, did not give reasons for the action. But he explained that the federal lawmakers would resume on February 19.
In any case, the Senate asked the Supreme Court to declare the suspension of Onnoghen without support of two-thirds majority of the Senate as a violation of section 292(1)(a)(i) of the constitution.
The suit also asked the court to issue an order restraining the two defendants in the suit – President Buhari and Abubakar Malami, the attorney-general of the federation, from continuing or repeating the violation of the constitution and disregarding the power of the Senate in respect to the suspension of the CJN.
In any case, both the NJC’s action and the Senate suit appear to have given a temporary respite to the public debate on the issue of the constitutional right of the president to suspend the CJN when the law saddles the NJC with such a responsibility, including appointment of any judge.
The manner in which Buhari suspended the CJN and appointed an acting CJN has been a big concern for Nigerians and members of the international community that the nation might be heading towards a major political upheaval.
Perhaps, feeling the heat, the federal government has reportedly decided to seek for a political solution to douse the rising tension in the polity. The Nation newspaper report on Thursday, January 31, disclosed that a 12-man Nigerian Bar Association, NBA, team had met with Vice President Yemi Osinbajo, SAN, on how to resolve the row over Onnoghen’s suspension.
The newspaper quoted sources close to the talks that the NBA team, led by Paul Usoro, SAN, its national president and two former presidents had with Osinbajo on Sunday, January 28, night till the wee hours of Monday in a frank session. Also, at the meeting were senior lawyers, including A. B. Mahmood, SAN, an ex-NBA president, Adegboyega Awomolo, SAN, and others.
The leaders of the NBA at the meeting were said to have restated the fact that they disagreed on the procedure adopted by the government in the suspension of Onnoghen. The NBA representatives also reviewed the case and charged that the NJC should have been allowed to handle the matter as required by the law. “They also faulted the government for a allegedly trying to desecrate the Judiciary since Onnoghen symbolises the highest authority in this arm of government.
“At the end of the day, they sought for soft landing for the CJN who has no immunity under the 1999 Constitution.
“They also explained that it was wrong for the Acting CJN, Justice Ibrahim Tanko Muhammad, to have made himself available for inauguration when a ruling of the Court of Appeal was being awaited,” the report said.
Nevertheless, the meeting at the Presidential Villa was regarded as a means to seek a “soft landing” for the CJN, who is expected to resign in what a source described as a “win-win” situation.
According to the report, there is a six-point terms of resolution to be delivered to Onnoghen through his confidants, relatives and friends, who will be expected to persuade him to resign from office or go on retirement.
Indeed, the terms discussed by the NBA at the session were given as follows: the CJN to resign or retire without coercion; Government to withdraw all charges against Onnoghen; no molestation of CJN under any guise; Acting CJN should quit; the NBA team to prevail on relatives, friends to persuade Onnoghen to resign; and consensus on the need to clean up the Judiciary (long term measure).
The VP is said to have assured the NBA team that he will convene their requests to the government.
A minister in the Buhari government was reported to have confirmed that some representatives of the CJN had opened talks with the federal government on “how to resolve the crisis in the bench” by the two arms of the government.
Even while both the Executive and the NBA were holding talks, Onnoghen went to court to challenge his suspension. But he was trounced. A Court of Appeal sitting in Abuja, on Wednesday, January 30, dismissed a suit he filed, seeking to halt his trial at the CCT over asset declaration. Pointedly, Onnoghen had sought to stop the tribunal from arresting, arraigning and trying him on the six-count charge brought against him by the federal government.
But Justice Abdul Aboki, the presiding judge, in his ruling on the matter, dismissed the appeal and declared that the trial of Onnoghen at the CCT should proceed. The same Court of Appeal had earlier urged the CCT to stay proceedings in the trial of Onnoghen pending the outcome of the application before it. The three-member panel of the court granted an interim order filed by the CJN, after listening to submissions from parties in the application.
A ruling on the application for temporary order was delivered by Justice Abdul Aboki who said: “This ruling is adjourned till Wednesday, January 30. The tribunal is ordered to stay all proceedings.” Onnoghen, in the suit, prayed the court to grant the stay until the determination of the appeal against the order of the tribunal made on January 14.
The CCT had ordered the CJN to proceed with his argument on the jurisdiction. This was in view of the subsisting orders of court, including the Court of Appeal.
The CCT chairman had declined to obey court orders restraining him from proceeding with the trial. He explained that section 246 of the constitution makes it very clear that the tribunal has unquantified jurisdiction to hear any assets declaration case as may be referred to it by the Code of Conduct Bureau, CCB. He also disagreed with the request to adjourn the trial sine die on the ground of a pending appeal at the Court of Appeal.
According to Umar, section 306 of the Administration of Criminal Justice Act, ACJA, 2015, does not make provisions for stay of proceedings in a criminal matter and in the instant case, it shall not be entertained. The tribunal declared all the orders for stay of proceedings null and void. The decision of the CCT sparked some protests in Abuja.
But at the resumed sitting of the CCT on Monday, January 28, the tribunal adjourned proceedings pending the determination of the case at the Court of Appeal. The verdict of the Court of Appeal on Wednesday, January 30, has now given direction for the continuation of proceedings at the tribunal to resume on Monday, February 4.
Ibraheem Al-Hassan, the CCT spokesman, said in a statement, that the tribunal had decided to resume proceedings in the case upon a request by the Code of Conduct Bureau, CCB.
Whether he appears before the tribunal or not, it has come to light that Onnoghen has explained the source of the foreign currency which he lodged into his accounts with the bank in instalments.
In a voluntary statement made on January 11, 2019, the CJN said some of the deposits in his Dollar account were from forex trading AGRICODE, while others were from proceeds of his investments into them.
Onnoghen’s stated all these in the voluntary statement he made at the Department of Intelligence Investigation and Monitoring, Code of Conduct Bureau, CCB, Abuja.
Onnoghen, in the document entitled “Cautionary Statement Form” cited by a newspaper correspondent, explained that “the deposits made in my US Dollar account No. 87000106250 with STD. Chartered Bank of $10,000 at different intervals of 28/6/11 were sourced partly from my reserve and saving from my estacodes including medical expenses.
“The same applies to my deposit of 27/7/11 of the sum of $10,000 twice.
“It is important to state that prior to my opening the US dollar account, I had foreign currency which I kept at home due to the fact that there existed a government that proscribed the operation of foreign currency account by public officers including judicial officers.
“It was when I got to know that the policy had changed that I had to open the said account. Upon opening the account, I was made to understand that I cannot pay in more than $10,000 at a time and per payment slip. I cannot remember the total amount I had on reserve at the time, but it spread from my practice days as a private legal practitioner from 1979 –1989.
“Some of the deposits are as a result of forex trading AGRICODE and other investment returns from where proceeds of my investments go into them. The withdrawals in the account are partly to pay children fees and upkeep abroad and further investments.
“My British Pound and Euro accounts with Chartered Standard Bank are savings accounts.”
While responding to the allegations of non- declaration of his assets against him, Justice Onnoghen stated: “My Asset Declaration for Nos. SCN000014 and SCN.0000 5 were declared on the same day, 14th December, 2016, because I forgot to make a declaration in May 2005 of my assets after the expiration of my 2005 declaration in 2009.
“Following my appointment as acting chief justice of Nigeria in November 2016, the need to declare my asset anew made me to realise the mistake and then did the declarations to cover the period in default.
“I did not include my Standard Chartered Bank Account in SCN. 000014 because I believed they were not opened during the period covered by the declaration; I did not make a fresh declaration of the asset after my substantive appointment as CJN because I was under the impression that my SCN. 000015 was to cover the period of four years which include my leave as CJN.”
That notwithstanding, the continuation of the trial is likely to get more attention for the country as members of the comity of nations are now watching Nigeria closely as to the effect of Onnoghen’s saga on the coming elections.
In the meantime, Atiku Abubakar, the presidential candidate of the Peoples Democratic Party, PDP, has petitioned Western countries such as France, Germany, European Union, United States of America and the United Kingdom, accusing Buhari of carrying out undemocratic actions capable of undermining the country’s constitution for personal reasons. In the petition dated January 27, Abubakar alleged that Buhari was threatening Nigeria’s democracy by “serially breaching the provisions of the nation’s Constitution” and “undermining organs and institutions of state to advance his personal interest.”
He listed the alleged infractions to include the suspension of Onnoghen; the purchase of the Tucano Aircraft; Executive Order No. 006 (On preservation of suspicious assets and related schedules); the approval of $1bn for military expenditure before approaching the National Assembly and disregard for orders of courts, among others.
The accusation seems to have reinforced a recent claim from the United States Centre for Security Studies, which claimed that Nigeria under Buhari is in emergency situation, and advocates immediate intervention before it explodes.
“The world is rising up against tyrannical tendencies which include complete disregard for the rule of law, total disregard for court orders, spending without appropriation, extra judicial killing and slaughter, and many other undemocratic activities of this administration,” the report said.
This, perhaps, prompted some of those countries to send cautionary words to Nigeria when the matter exploded about a week ago.
The United States specifically expressed deep concerns over Onnoghen’s suspension, and deplored the executive’s decision to suspend and replace the CJN and head of the judicial branch, without the support of the legislative branch, on the eve of national and state elections. “We note widespread Nigerian criticisms that this decision is unconstitutional and that it undermines the independence of the judicial branch… That undercuts the stated determination of government, candidates, and political party leaders to ensure that the elections proceed in a way that is free, fair, transparent, and peaceful – leading to a credible result.”
On its own part, the UK said: “We have heard a wide range of credible and independent voices, including in the Nigerian legal profession and civil society, who have expressed concern over the constitutionality of the executive branch’s suspension of the chief officer of the judiciary.” The UK said even though it respects Nigeria’s sovereign authority, it observed that the timing of the action has so much concern because of its closeness to national elections. It risks affecting both domestic and international perceptions on the credibility of the forthcoming elections.”
In response, the federal government called the foreign countries interlopers. Besides, the federal government said the suspension of the Onnoghen does not signify the onset of dictatorship or tyranny, as some people have insinuated.
Lai Mohammed, the minister of information and culture, who gave the explanation at a media briefing in Abuja, on Monday, January 28, said that the suspension had nothing to do with the forthcoming elections.
That notwithstanding, Monday Onyekachi Ubani, former vice president of the Ngerian Bar Association, argued that if the allegations against the CJN had been properly channelled nobody would have raised an eyebrow. He said: “These are mere allegations which the CJN must be made to respond to, through a proper investigation initiated by the appropriate security agency empowered to so investigate.
“If he is culpable, the appropriate procedural channels must be complied with and if these allegations are proved, the CJN must be removed in accordance with the constitution of 1999 as amended. No one is above the law, but the proper constitutional procedures must be strictly adhered to by all the parties concerned in dealing with the CJN.
“For the umpteenth time, let me emphasise that we are talking about the head of a third arm of government created by the Constitution of Nigeria. You cannot suspend or remove him in disobedience to the Constitution. Never!
Banji Ojewale, a veteran journalist, said the Onneghen trial is a way by the APC administration to unnecessarily rock the boat on the eve of the February 2019 elections. Ojewale said this had prompted the public to believe that “the government is desperate to clobber the judiciary into docility for compromised verdicts should the poll become a legal tussle. It is difficult to disagree with them.”
Although both the government and its supporters have argued that removing and replacing Onnoghen is the best way to go, the crisis appears unlikely to go until a political solution is found. The public, nevertheless, is awaiting with baited breath on which cause of action the government is going to take without throwing the country into a political tumult.
– Feb. 1, 2019 @ 17:15 GMT |
Tags: 2019 Elections: Tension over Looming Constitutional Crisis in Nigeria
