As The Judiciary Gets a Shakeup

Should The Nigerian Citizenry Be Afraid?

by Jerry Chiemeke

As The Judiciary Gets a Shakeup

“It is not merely of some importance, but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

- Lord Hewart CJ, in the English case of The King. vs. Sussex Justices, ex parte McCarthy (1924)

The above statement, drawn from the ruling delivered in a twentieth-century case adjudicated by the High Court of England, is derived from the general principle of natural justice and is applied around the world, particularly in countries that adapted the English legal system (of which Nigeria is one). In simple terms, it harps on the need for authorities and people in positions of power to, at all times, be transparent and adhere to due process in decision-making.

The importance of having a judiciary that is free to operate and perform its essential functions without let or hindrance to the continued existence of a democratic government cannot be over-emphasised. It is vitally important in a democracy that judges are independent of all external pressures, so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their duties, they must be free of any undue influence or anything that remotely points at coercion. Beyond existing as one of the three arms of government, it is often held out as the “last hope of the common man”, and where one arm of government is at (or perceived to be at) the mercy of the other, where one appears to act with the intention of overrunning the other, then it would not be out of place to nurse apprehensions of an impending dictatorship.

The last few weeks of January have witnessed an interesting (but alarming) “tussle” (if it can be referred to as one) between the Presidency and the Chief Justice of Nigeria, Walter Samuel Nkanu Onnoghen. The latter, who had been accused of a false declaration of assets in contravention of the Code of Conduct for public officers, was charged by the Code of Conduct Bureau less than five working days after a petition was filed against him on January 7th 2019. A team of senior lawyers had sought (and obtained) orders from superior courts of record to halt the proceedings against Onnoghen, but on the 25th of January 2019, the Presidency obtained an ex-parte order (that is, an order procured without the notice of the embattled Chief Justice) from the Code of Conduct Tribunal, had him suspended, and immediately administered the judicial oath of office to the next senior judicial officer, Justice Ibrahim Tanko Muhammad, appointing him as the Acting Chief Justice of Nigeria.

Justice Ibrahim Tanko Muhammad  Thisday Live

This (hasty) executive decision, unsurprisingly, has attracted divided opinion from every Nigerian who bears a remote inclination towards politics, the Atikulate and the Buharist, the activist and the fencist. Some have opined that the Executive arm of government acted in blatant disregard of the country’s constitution, and others have espoused the view that the fight against corruption has to dispense with legal technicalities for the greater good. In a 25-paragraph address, the President, in attempting to provide a rationale for his decision, cited the suspended Chief Justice’s reliance on procedural niceties to frustrate the trial, and in more than a few words, disapprovingly described the rule of law as a “labourious path”.

Justice Walter Onnoghen Thisday Live

In analysing the propriety of the President’s recent actions, it is important to examine certain salient provisions of the 1999 Constitution of the Federal Republic of Nigeria, the grundnorm of the nation’s legal system, the hinge on which our democracy turns. Section 292 (1) (a) (i) of the Constitution provides thus:

S. 292. (1) “A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances -

(a) in the case of -

(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.”

In the ensuing political drama, there is nothing that remotely hints at the input of the Senate in the suspension of the Chief Justice of Nigeria. What we can make of this is a unilateral decision by the Presidency, based on an order hurriedly granted ex parte.

Again, Section 21 (b) of Part 1 of the Third Schedule to the Constitution stipulates as follows:

21. The National Judicial Council shall have power to –

a.    recommend to the President from among the list of persons submitted to it by –

(i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and

(ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;

b.    recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers.

By implication, the Chief Justice of Nigeria can only be removed by the President upon recommendation of the National Judicial Council. Even in the face of arguments that “suspension” is materially different from “removal”, it is common knowledge that suspension is a method of discipline, and by virtue of the relevant legal provisions, no judicial officer should be suspended without the National Judicial Council having a say in that decision.

There is also the matter of the newly appointed Acting Chief Judge needing to declare his assets before carrying out any duties, because Section 290 (1) of the Constitution states that:

A person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this Constitution and has subsequently taken and subscribed the Oath of Allegiance and the Judicial Oath…”

There is no mention of Justice Ibrahim Tanko Muhammad having publicly declared his assets, but he has swiftly inaugurated an election tribunal panel made up of 250 judges. Reports have it that a number of the selected judges are either dead or retired, but that would be left for another discussion.

The doctrine of separation of powers between the three arms of government limits the possibility of arbitrary excesses by either the executive, the legislature or the judiciary. The rule of law (and respect thereof) is an integral part of a democracy, and where there is consistent trampling on statutes and judicial pronouncements, tyranny is just one of the appropriate words to describe a situation of that nature. Assuming (but not conceding) that Chief Justice Onnoghen did withhold relevant information pertaining to his assets, there is a due process for indictment and prosecution, and in the pursuit of justice, good intentions are never enough, laws must be abided by. The invasion of the DSS of the homes of judges in 2016 will not be forgotten in a hurry, and the brazen violation of court orders by this administration is well documented. If the Chief Justice of the country can be suspended without recourse to the stipulations of our hallowed constitution, then we might as well be operating under a decree, where laws are suspended and we are subject to the whims and caprices of executive authority.

In view of current happenings, the people have a right to be afraid that their democracy is tampered with. The persistent affront to the judiciary and our nation’s laws is in bad taste, and in a number of ways it feels like 1984 all over again, the only thing missing being martial music.