© 2018 - International Centre for Investigative Reporting
No retreat, no surrender
By Simon Kolawole
BEFORE every election in Nigeria, there is always always always something stirring up emotions, inflaming passion and pushing us, as it were, to the precipice. We are never starved of tension. The polity is always sharply and bitterly divided. The suspension of Justice Water Onnoghen as the Chief Justice of Nigeria (CJN) by President Muhammadu Buhari and the swearing-in of Justice Tanko Ibrahim Muhammad in an acting position is probably the highest tension point as we head into the 2019 general election holding next month. I expect the temperature to keep rising in the weeks ahead. I just hope that at this rate, Nigeria will not catch fire.
I was more than shocked on Friday when I heard the news of the suspension of the CJN. My body became warm — as if I had a malaria attack. I was shaken. My heart skipped a bit. I never believed it was going to happen, partly because a court of appeal had asked the Code of Conduct Tribunal (CCT) to stay proceedings and partly because a CJN had never been suspended by a president in the history of our country. It was a most unexpected development. I was thinking all the litigations would be resolved before any further action would be taken. As a layman, I understand that when any case is in court, one of the parties is not expected to resort to self-help.
The court order relied upon by the president to suspend Onnoghen is one of the strangest in our legal history. The jurisdiction of the CCT was still being challenged. A superior court had, on January 24, asked the tribunal to stay proceedings. The following day, CCT ordered Buhari to suspend the CJN and swear in an acting CJN. Although the order was dated January 23 (to suggest that it was issued before the court of appeal asked the CCT to stay proceedings), there is reasonable suspicion that it was backdated to undermine the court of appeal. In fact, the CCT chairman, Mr. Danladi Umar, is said to have personally taken the papers to the ministry of justice on Friday, January 25.
I have read several legal opinions on who has the power to discipline the CJN. I prefer to leave the debate to legal experts. But an overwhelming majority of lawyers have described the suspension of Onnoghen as “illegal”. They have quoted several aspects of the law to support their position. They have made references to previous court pronouncements to advance their argument. I don’t know if they are right, legally speaking, but I am convinced beyond reasonable doubt that suspending Onnoghen is overly suspicious under the current circumstances. I doubt if the president has the power to discipline any judge, but even if he does, the undercurrents must never be lost on us.
Let us get some things clear. If Onnoghen made a false declaration of assets, he deserves to face the consequences. Some of the consequences are that he would be banned from holding public office and forced to forfeit those assets. It is immaterial whether or not he forgot to declare his assets — there is no such excuse known to law. I am very sure Onnoghen would not sit in judgment over a court case and set an accused person free on the basis that he forgot to do the right thing. Onnoghen’s failure to declare some of his assets, as alleged, is not defensible. Anyone trying to justify this is as blind as those justifying his suspension.
Also, if indeed Onnoghen is corrupt as alleged in media reports, he is not fit to be addressed as a justice, much less the chief justice of Nigeria. He deserves to be stripped of his exalted robe and sent to the courts to face justice. One of the worst things that can happen to a human society is injustice — especially when it is induced by corruption. If Onnoghen is found to be loaded beyond his means, it would be most unreasonable to say he should not be questioned. However, the moral argument for fighting corruption is that laid-down procedures were violated. But you would only be defeating your own argument by fighting corruption without also following laid-down procedures.
Meanwhile, I think it was improper for five south-south governors to have held an emergency meeting and called on Onnoghen to ignore the CCT summons. Again, that is an invitation to anarchy. Under no circumstance should we encourage anybody to ignore court summons. You do not fight one illegality with another illegality. If we are going to build a democratic society, we must allow the system to take care of itself. We must fight illegality from the position of law. The south-south governors added an unnecessary ethnic and regional dimension to the issue. They can actually oppose the treatment being meted out to Onnoghen without whipping up ethnic sentiments.
Finally, I think Buhari’s political strategists are working very hard to destroy him ahead of the general election. They are doing everything possible to set him against the whole world and set the whole world against him. I guess they are now getting the feedback. No matter how allegedly corrupt Onnoghen is, there is no way neutrals would not smell politics with the pace and haste being deployed to tackle him. We need to fight corruption in the judiciary, but everything must be done with decency and order. Only a shameless hypocrite would say that the Onnoghen case is less about politics and more about an attempt to fight corruption in the judiciary.
For if it were simply about cleansing the judiciary, the CCT chairman would not be sitting on that seat. There is a corruption case, filed by Buhari campaign spokesman, Mr. Festus Keyamo, dangling over Umar’s head. On the basis of morality, he should have been asked to step aside ages ago. Those asking Onnoghen to step aside on moral grounds are yet to extend this gesture to Umar. If it is sauce for Onnoghen, it should not be venom for Umar. Unfortunately, we are in the political season: the first thing that dies is reason. As long as your side of the bread is buttered, fairness and common sense can go to blazes. Nobody should promote this lopsided approach to the anti-graft war.
Where do I stand? One, from the position of constitutional development, I think we should allow the system to take care of itself. Despite the preponderance of criticism against the president’s move, there are legal experts arguing that there is nothing wrong with it. Let all these arguments be tested in the courts. That will allow for an organic development of the system. Some issues need to be settled in law once and for all, and I believe the Onnoghen case offers a good opportunity to resolve the role of the president in disciplining a judge. My position, though, is that the president does NOT have the power to suspend the CJN. But I am not a court of law and my opinion is irrelevant.
Two, the CCT, in my opinion, does not have the power to order the president to swear in an acting CJN. As a layman who can read and write, I have studied the law setting up the CCT and I can say there is nothing empowering it to do what it has just done. The brief of the tribunal is to try public officers who are in breach of the Code of Conduct Act. Where it finds an officer guilty, it can pronounce these punishments: vacation of office; disqualification from holding any public office for a period not exceeding ten years; and seizure and forfeiture of any property acquired in abuse or corruption of office. Even if the CJN is found guilty, he has a right of appeal. That is the law.
Three, the president has to be very sensitive about political realities in Nigeria, especially within the ethno-religious context. Even if his advisers are telling him not to give a damn, he has to realise that there is already a sticky allegation of “northernisation” against him. The word in town from day one is that he wanted to appoint a northerner as CJN and was never comfortable with Onnoghen, and the last thing someone in his position would want to do is keep feeding this perception. Critics say the CCT chairman, a northerner, is facing corruption charges and Buhari has never moved against him — but he has speedily suspended a southerner. Perception matters a great deal.
There is no doubt that errors have been committed by all sides. The CJN admitted that he did not declare all his assets. It is not as if he is being hounded because he did some good thing. We must never ignore this fact. Also, the federal government has gone in the wrong direction in trying to bring him to justice. As an optimist, though, I would argue that the Onnoghen saga has thrown up issues for us to tackle as a nation. We never imagined some of these issues before. Should all matters relating to judges be taken before the National Judicial Council (NJC)? What happens when the NJC chairman — that is the CJN — is involved? We need to think deeply about this.
Above all — and this is my key argument and conclusion today — we must not lose sight of the real issue at hand: corruption in the judiciary. When the Onnoghen dust has settled, we must begin to debate how the system can be properly cleansed. The judiciary must never become a law unto itself. We cannot have a whole branch of government shielding itself from scrutiny. While I believe that the NJC should continue to discipline judges when it comes to their conduct on the bench, issues of corruption and declaration of assets should never be subject to the whims of the body. We need to take a longer-term view of things — beyond the obvious politics of 2019 elections currently at play.
AND FOUR OTHER THINGS…
On Thursday, Ime Obi Ohanaeze Ndigbo — the highest organ of the Igbo socio-cultural organisation — endorsed Alhaji Atiku Abubakar, the presidential candidate of the Peoples Democratic Party (PDP). The following day, Chief Solo Chukwulobelu, secretary to the government of Anambra state, issued a statement to distance Anambra from the endorsement. “We regret that they do not reflect the position of the people and government of Anambra state,” he said. Given that Atiku’s running mate, Mr. Peter Obi, is from Anambra and was its governor for eight years, President Buhari must be rubbing his hands from a distance. Amusing.
Mrs Obiageli Ezekwesili caused a stir when she abruptly entered the presidential race in October 2018 and caused even a bigger stir when she abruptly withdrew three weeks to the election. Accusations have been freely traded — her Allied Congress Party of Nigeria (ACPN) accused her of being unserious and only targeting a ministerial position; she has, in kind, accused the party of not having the sort of values and vision dear to her. I find it very cruel, though, that anybody would suggest Oby went into the race for financial gain. You can ridicule her politics if you would, but to assail her integrity is beyond the pale. Uncharitable.
In the midst of the crises rocking the Nigerian judiciary, the one that went under the radar were the opposite rulings on the Zamfara case by two courts of co-ordinate jurisdiction. In one instance, a federal high court in Abuja upheld the decision of the Independent National Electoral Commission (INEC) not to accept the list of candidates of the All Progressives Congress (APC) in the state. In another, a Zamfara state high court in Gusau asked INEC to recognise candidates of an APC faction led by Governor Abdulaziz Yari. No prize for guessing whom the state court was working for. The sad thing, however, is the way our judiciary is going into the abyss. Tragic.
You must have heard this. Abdullahi Yada’u, from Kanam local government area of Plateau state, has sent his wife, Hafsat, packing because she insisted on voting for President Muhammadu Buhari again. “Both of us voted for Buhari in 2015 but this time, I feel disappointed with the administration and decided not to vote for him again. I told her that she must not vote for him but she insisted. This led to a quarrel which attracted the attention of our neighbours. I slapped her and told her to choose between voting for Buhari and staying with me. She ran away,” Yada’u told the BBC Hausa Service. Now, that is political rivalry taken to the next level. Gobsmacked.
Simon Kolawole is the founder and CEO of TheCable. He tweets @simonkolawole.