Onnoghen’s suspension by the President

Mixed reactions have continued to trail the suspension of the ex-Chief Justice of Nigeria, Walter Samuel Onnoghen, by President Muhammadu Buhari. Abimbola Akindunbi and Kayode Olabanji  speak with some eminent Nigerians and lawyers on whether the President has authority to act as such.

Excerpts:

Prof. Itse Sagay (SAN), Chairman of the Presidential

Advisory Committee against Corruption

The suspension of the Chief Justice of Nigeria, CJN, Walter Onnoghen, is constitutional. And President Buhari is legally empowered to suspend Onnoghen. It is constitutional.

President Muhammadu Buhari only obeyed a court order in suspending Chief Justice Walter Onnoghen.

The President’s action was in line with the rule of law, as there was a valid order, which he obeyed.

Chief Justice Onnoghen’s removal was also morally justified as he had admitted that he did not fully comply with the assets declaration requirements.

I agree that the Constitution empowers the President to remove the CJN through the Senate.

The president could also suspend the CJN pending when the Senate votes on whether the CJN should be removed or not, The CJN could return to his post, if the Senate does not remove him by a two-thirds majority.

The suspension is morally justified and legally justified. Morally, he should not be in that office, considering what has happened.

The Code of Conduct Tribunal gave an order that the CJN should be removed from office. So, the President carried out a court order. If anyone says it’s an exparte application.  My answer is that all the orders they got from courts over the matter were ex-parte.

If they have been using ex-parte, they have no moral right to quarrel if the prosecution applies the same method in one case as against four in their own case.

So, the President was obeying a court order and for the rule of law to prevail, he should obey court orders. That’s number one.

Two, without even going to court, Section 292 (1) of the Constitution provides for the CJN’s removal, including over a breach of the Code of Conduct. He has committed a breach of the Code of Conduct and he has admitted it.

The only person who can remove the CJN in the Constitution is the President. The removal could take the form of presentation of the matter before the Senate by the President.

The Senate cannot bring the matter before themselves, nor can the National Judicial Council.

So, the President, in trying to exercise the power of removal of the Chief Justice for breach of Code of Conduct, can first suspend him.

He can then take his name to the Senate for consideration for permanent removal. If the case fails and the Senate cannot vote by two-thirds majority, then the CJN returns to his post.

This is my own interpretation. But the government has adopted the alternative option of obeying a clear court order which accords with the rule of law.

 

 

 

 

 

Ademola Adewumi, legal practitioner

What happened on January 25, 2019 can be viewed as an affront to our constitution and democracy at large. If I may ask, what is the meaning of democracy if democratic principles are sacrificed on the altar of political desperation and unbridled nepotism? To sane minds, the purported sacking or suspension of the Chief Justice of Nigeria (CJN), Honourable Justice Walter Nkanu Onnoghen, by President Muhammadu Buhari is unconstitutional, illegal and Indefensible.

To start with, the CJN is regarded as the head and symbol of authority of the Nigerian Judiciary. The judiciary, as an arm of government is neither an agency of the federal government nor a department in the executive. It is one of the three arms of government established by section 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The CJN is to the judicial arm of government, what the President is, to the executive arm. The three arms are co-equals and none is subjected to the other. However, each of them can exercise checks on the other without violating the laid down procedures.

Going by the provisions of the 1999 Constitution  (as amended), the President has no power whatsoever to unilaterally sack or suspend the CJN. The CFRN, 1999 (as amended) is very explicit on how the appointment and removal of the CJN in sections 231(1) (2), 292(1)(a)(i) and Paragraph 20 & 21 of the 3rd Schedule to the Constitution.

Section 231(1) CFRN provides thus; the appointment for a person to the Office of CJN shall be made by the President on the recommendation of the National Judicial Council (CJN) subject to confirmation of such appointment by the Senate”.

On his removal which is the crux of this discourse, section 292(2)(a)(i) provides that 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) CJN, … by the President acting on an address supported by two-thirds majority of the Senate, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for conduct or   CONTRAVENTION OF THE CODE OF CONDUCT.

In conclusion, those arguing that the President has acted as a matter of necessity are either being naive or mischievous. There’s no defence for this impunity which if not corrected timeously may degenerate into anarchy and a state of lawlessness.

 

 

 

Ibukun Fasanmi, legal practitioner

The president has the power to appoint the CJN upon the recommendation of the NJC subject to the confirmation of Senate; and that way round.

The current situation of suspension is not only arbitrary, but has no basis in law.

The decision of the President is inchoate, ill advised and unconstitutional.

The President relied on a Court Order granted exparte when the Motion on Notice had been served on the 22/1/19 and matter adjourned to January 28, 2018.  It is only shocking to note that the exparte application was heard by CCT, which is directly under the SGF, under the Presidency, in matter of the FGN.

It is a coup against the constitution and the doctrine of separation of powers. The FGN had approached the court on the allegation of under/non declaration of asset. But the same FGN could not wait for the decision of the court before the purported suspension of WSNO.

It is a sad development and a dangerous precedent. It is preposterous in all shades of it.

 

 

We have expected the CJN, Hon. Justice Walter Onnoghen  to step aside on his own, based on his own defence in the alleged failure to declare assets.

The CJN lacks the morality to continue in that office, because ignorance on its own is not an excuse.

As the chief custodian of the judiciary, that he forgot to declare his assets, is an admittance to the allegation. And he should have stepped aside honourably.

Whether the executive had powers to suspend the CJN should be contested in the court, since there is no express provision to that effect.

However, I blame Onnoghen for not abiding by the provisions of the Administration of Criminal Justice Act (ACJA) in his own case which he had applauded.

A provision of ACJA stated that “No question to the jurisdiction of the court should be entertained until the prosecution had closed its case.

The same CJN who applauded the provisions of the ACJA is now going about forum-shopping filing injunctions to stop the CCT from arraigning him.

I believe that the FG was circumstantially compelled to suspend him.

 

 

Barrister Paul Attah, legal practitioner

The President of Nigeria, Muhammadu Buhari, suspended the Chief Justice of Nigeria, Justice Walter Nkanu Samuel Onnoghen from office, and immediately administered the judicial oath of office to the most senior Supreme Court Justice, next in rank to him, Justice Ibrahim Tanko Muhammed as the Acting Chief Justice of Nigeria.

Essentially, the president explained that he was swiftly executing an order ex-parte (that is, a one sided order procured without notice to, and the knowledge of the “suspended” CJN or his lawyers) of the Code of Conduct Tribunal (CCT), made and dated the 23rd day of January, 2018 notwithstanding that proceedings of that day had no such application and more particularly that the said exparte application was moved without a counsel on the face purported order of court.

Many were shocked by the speed of that process, making many to wonder whether that speed did not signify that the FGN was coordinating the plot to remove the CJN from office.

The publicised demand of the Federal Executive Branch of Government for the resignation of the CJN from office, and the hollow and flat statement made by Vice President, claiming the President was not aware of the travail of the CJN before he was charged, were pointers that the Federal Government has the resolute and implacable force behind the effort to remove the CJN from office.

When the CJN was confronted with the particulars of his infractions, upon the receipt of a petition from an NGO that submitted same, calling for his probe and prosecution, he made a ‘confession’.

In a a written statement that he volunteered, he admitted the ownership of the bank accounts and the sums therein contained, but claimed that he forgot to declare the bank accounts. That in its self not being a defense, but surfaces in the spirit of the letters of the law. In the face of these damning confession, the president stated that Nigerians had expected the CJN to resign his office. Where did Mr president get his legal authority?

But instead of doing that, a team of senior lawyers working with him had obtained a number of orders from the courts to frustrate his trial.

It was in consequence of these orders that the Executive had to act. It sought an order to suspend the CJN from office and upon the order being granted by the CCT, acted swiftly to suspend the CJN

The president acted illegally and unconstitutionally. The provisions of Section 292 of the Constitution, which guarantees security of tenure for judicial officers, especially the CJN.

By this, he cannot be suspended or removed from office without the recommendation of the NJC and the 2/3 concurring approval of the Senate.

The precedent of the unconstitutional and wicked ill treatment meted to Justice Isa Ayo Salami, erstwhile President of the Court of Appeal by the Goodluck Jonathan Presidency, cannot be used as justification or a precedent as canvassed by some Nigerians.

Incidentally, the senior lawyers that colluded with the Goodluck Jonathan Administration then to traduce and harangue Hon. Justice Isa Ayo Salami, CFR, and cruelly and crudely abort his presidency of the Court of Appeal are now in the CJN Onnoghen’s corner, mouthing “the rule of law“ , “due process of law” , “judicial independence“, and decrying an alleged descent into fascism.

Apparently, the executive branch of the government desired the ouster of the CJN from office.

To actualise the objective, it worked closely with a shadowy NGO to dredge up CJN Onnoghen’s infractions of provisions of the Code of Conduct for Public Officers.

What The Law Says

By virtue of Section 292(1)(a)(i) of the Constitution, the CJN cannot be removed from his office or appointment before his retirement age ( or suspended from office, while the real intention is to secure his removal ) except by the President, acting on an address supported by two thirds majority of the Senate.

The NJC, by virtue of paragraph 21(b) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 ( as amended ) recommends to the President the removal from office of certain category of judicial officers including the CJN , and exercises disciplinary control over them.

This is because regulators are being impracticably saddled with the power to regulate themselves. But that is the path for the removal or suspension of the CJN from office as provided by the Constitution!

Section 18, Part 1 of the Fifth Schedule to the Constitution defines the power of the CCT. In particular, Section 18 ( 2) stipulates the punishments which the CCT may impose upon conclusion of trial. They are : (a) vacation of office or seat in any legislative house as the case may be; (b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; and (c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office .

Instructively, the CCT is not vested with any power under the Constitution or the Code of Conduct Tribunal Act to order the Executive Branch of Government to suspend a public officer who is undergoing trial before it, from office , pending the conclusion of trial, as the CCT has purportedly done.

Also instructive is the fact that being a quasi criminal tribunal, the rules of procedure of the CCT is the Administration of Criminal Justice Act, a criminal procedure act, under which an ex parte or interlocutory order, analogous to an order of injunction obtainable in civil proceedings ( under the civil procedure rules of our courts ) may not be validly sought or granted.

The Federal Government knew there were constitutional blockades against its desired removal of the CJN from office. It recognized that FRN V NGANJIWA, 2018, 4 NWLR ( Pt. 1609) , 301 at 341 and 349, is a caselaw obstacle. But it was determined not to be restrained or frustrated by the rule of law.

This is a coup against the rule of law.

 

 

Mr Yemi Adetoyinbo,

A legal practitioner and Human Rights Activist

The President has the appointing authority of a person to the office of Chief Justice of Nigeria, but it does not give him the same direct power to sack the CJN.

Given the Constitutional proviso under Section 23, which states that the appointment of a person to the office of CJN, shall be made by the President on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the Senate, ditto by provision of Section 231(4), the holder of the office of CJN can vacate the office if he is unable to perform the functions of the office or lacks capacity, not forceful removal. And the most senior judge of the Supreme Court is appointed by the President.

So, the removal and the case of Hon. Justice, Walter Samuel Nkanu Onnoghen, Chief Justice of Nigeria, by President Muhammadu Buhari, is not only illegal, unconstitutional, but that of crass opportunism, class afront against the legal profession, and the Judiciary, a breach of the theory of separation of powers, Independence of the Judiciary.

Given the position of the constitution, that it is a three pronged way appointment channel to be observed by the President and to be removed, it has to pass through the recommendation of the National Judicial Council, confirmation by the Senate, and then, the President. And not just a unilateral double decker.

There is also the angle of the presumption of the innocence of the accused person until the contrary is proved CJN, Onnonghen, while still in office actively discharging, performing and carrying out the duties of his office without any sign of incapacitation, or judicial fraud, embezzlement, bribery or unbridled corruption capable of tarnishing the image of the judiciary and the state,(Nigeria). But the allegation of failure to declare his assets and liabilities before the Code of Conduct Tribunal as provided by law, which he admitted, that he forgotten same, upon the assumption of office years back and ready to do so now, and pleaded for  forgiveness by the state and Nigerians, which qualifies him for Presidential pardon. Even when the case in court or Code of Conduct Tribunal is being Challenged on the grounds of lack of jurisdiction, at the Federal High Court and the Court of Appeal granting  a halt of the trial and proceedings, his plea of guilty or not guilty not taken yet by the Court, his personal plea and physical presence arraignment not done yet, the trial not yet commenced or completed, not yet found guilty or convicted, the presumption of innocence still availed him, and due to jurisdiction issues being challenged that has prevented him from personal court appearance are enough to legally clothed and constitutionally iron clad woven safeguards for him. They ought to allow the CJN explore every legal avenue at his disposal to defend himself and prove his innocence as he is doing now. And if otherwise, the court so decides suomotu and mutatis mutandis, his trial can proceed and concluded, before the President can communicate his intention to NJC and the Senate to urge the CJN to vacate office if found guilty. Instances of trial of judicial officers like Justice lkomi, Justice Ademola, Justice Nweze of Supreme Court ended in acquittals. While that of Justice Ofili Ajumogobia was heading to acquittal, until her case was reported to NJC, which looked into the case and dismissed her. The FG should have followed this constitutional and legal avenue and path of honour against the CJN, rather than this shame of a country akin to the abolition of the courts by a junta regime in Russia.

 

 

 

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