The Nation Newspaper

Tag: Judiciary

  • Buhari inaugurates panel on autonomy of state legislature, judiciary

    President Muhammadu Buhari yesterday inaugurated the Presidential Implementation Committee on Autonomy of the State Legislature and State Judiciary at the State House, Abuja.

    The inauguration of the committee, according to the President, was in line with the 4th alteration to the 1999 Constitution.

    The President disclosed that the 16-man committee is to be chaired by the Minister of Justice and Attorney General of the Federation, Abubakar Malami, while the Senior Special Assistant to the President on National Assembly Matters (Senate), Ita Enang, will serve as Secretary.

    The President urged the committee to be meticulous and diligent in carrying out the assignment.

    The implementation of the committee’s assignment, the President said, will ensure proper checks and balances.

    He gave the committee three months to complete the assignment.

    He said: “The setting up of this Committee is necessitated by the realization that legislative and judicial autonomy are necessary pre-conditions for our democracy to endure.

    “We are committed to strengthening our democracy by ensuring separation of powers among the three arms of Nigerian government, even at the state levels.

    “Furthermore, we have identified the need to sustain our constitutionally guaranteed federal system of government by building capabilities, not only at the federal level, but at all the federating units.

    “This committee has therefore been set up as a major reform of this administration, to ensure that the autonomy granted to the legislature and judiciary at state levels is maintained, pursuant to Section 161 of the 4th Alteration to the 1999 Constitution (As Amended).

    “The Committee is thus expected to foster effective implementation of the autonomy constitutionally granted the state legislature and judiciary under the 1999 Constitution (as amended).

    “It is my hope that when this is done, there will be proper checks and balances, and the state legislature and judiciary shall be genuinely empowered to carry out their respective Constitutional duties without fear of dominance and or marginalization.

    “The Legislature, being the closest arm of government to the people, and the Judiciary as the last hope of the common man, must both be seen to be sufficiently independent to perform their respective constitutional roles without any interference, let or hindrance.

    “In this regard, ensuring that these organs of government enjoy financial autonomy will further enhance their efficiency and independence.”

    In executing the national assignment, he said that the Committee is expected to cooperate with all relevant stakeholders to ensure compliance with the constitutional provisions granting autonomy to state legislature and judiciary, without deviating from its approved terms of reference.

    The terms of reference, he said, included:

    “a) To assess and review the level of compliance by all the 36 States of the Federation and the FCT with Section 121(3) of the 1999 Constitution (As Amended);

    “b) To monitor, ensure and cause the implementation of financial autonomy across the judiciary and legislature of the 36 states of the federation and the FCT in accordance with the provisions of the 1999 Constitution (As Amended) and other applicable Laws, Instruments, Regulations, and Conventions howsoever providing for financial autonomy for the Legislature and Judiciary at the State tier of Government;

    “c) To consult and relate with the appropriate Federal and State MDAs, including but not limited to the Governors Forum, Accountant General of the Federation and those of the States, the National Economic Council and other institutions of State to ensure and, where necessary, enforce the implementation of Constitutional provisions;

    “d) To come up with appropriate modalities or model to be adopted by all the States of the Federation for implementation and/or compliance with Section 121(3) of the 1999 Constitution (As Amended);

    “e) To advise on other measures that are deemed necessary or incidental to the fulfilment of the aims of the Committee to attain the full purport of this assignment.”

  • The judiciary is ordained by God

    Daniel 4:17 says the most High God rules in the Kingdom of men and gives it to whomsoever He wills. He also sets up higher powers to ensure law and order in the kingdom of men. And these higher powers are the Judiciary, which in the sight of God are sacrosanct and therefore the most important arm of government.

    This is why God commands all men to be subject to these higher powers. Romans 13: 1 stresses: “Let every soul be subject unto the higher power for there is no power but of God. The powers that be are ordained of God.

    Romans 13: 4-5 states: “Why? Because these higher powers, that is, the Magistrates and the Judges, are God’s own ministers, who bear the sword, to execute and to dispense justice in the society.

    “All souls, therefore, especially believers in Christ, must be subject to all magistrates and judges, both for conscience sake and for wrath’s sake.”

    Any civil government in power, or any citizen of the country, and of course, any believer in Christ, who resists these magistrates or judges by refusing to obey their orders is resisting the ordinance of God and shall receive to themselves damnation.

    Christians are reminded in Titus 3:1 that they must be subject to the powers that be, by obeying the order of magistrates and judges, and must be ready to do every good work, so that they will not be damned.

    Judges and magistrates, being the ministers of God, are also warned to take heed what they do for they judge not for man but for the Lord, who is with them in all their judgments as 2 Chronicles 19:6 points out.

    Therefore, Magistrates and Judges must be conscious of the fact that they are judging for the Lord, and not for man, and so, must not judge with the fear of man or with the fear of the Government in power, but with the fear of God, who put them in power, and who is with them in their judgments.

    As ministers or servants of God, no iniquity should be found with magistrates or judges and they must have no respect of persons, neither must they take gifts to pervert the judgment of the righteous. 2 Chronicles 19:7 states this as much.

    The role of the true church in a civil government is to preach salvation to all men and to be engaged in ceaseless prayers of intercession for those in authority, especially for magistrates and judges, who have God’s sword in their hands for the execution of judgment.

    The church must pray so that this sword may be applied rightly in the fear of God. Because of this important divine role of the church in the society, saints of God are not to sue one another to any law court.

    Rather, they must judge all matters amongst themselves. I Corinthians 6:1 says: “Dare any of you having a matter against another, go to law before the unjust and not before the saints?”

    Verses 2-3 say: “Do ye not know that the saints shall judge the world? And if the world shall be judged by you, are ye not worthy to judge the smallest matters? Know ye not that we shall judge angels? How much more things that pertain to this life?”

    A true church is also a militant church, which must always be in constant spiritual warfare with the demons behind the lawlessness in the nation and with the demons which hinder good governance and the prosperity of the nation.

    Therefore, the militant church is a praying church and the saints of God, who make up the militant church, must not entangle themselves in politicking so that they can please Jesus, who has chosen them to be spiritual soldiers as 2 Timothy 2:4 points out.

    The healing of any nation and the stability of any civil government and of the Judiciary and even the peace of any nation, depends upon a militant praying church, whose Great Commander is the LORD JESUS, because He is the LORD of hosts and at the same time, the Prince of Peace Isaiah 9: 6 says.

    • George, a member of Christian Gospel Church (The Truth Centre) Benin, writes in through cgc.com.ng@gmail.com.

  • Cleansing the Judiciary

    These, as Acting Chief Justice of Nigeria (CJN) Tanko Muhammad said about 12 days ago, are trying times for the judiciary. The reason is obvious. Suspended CJN Walter Onnoghen is to face trial at the Code of Conduct Tribunal (CCT) for alleged false asset declaration. Some judges and lawyers are being tried for alleged corrupt practices. Lawyers are divided over Chief Justice Onnoghen’s case, with most of them ignoring a two-day court boycott called by the Nigerian Bar Association (NBA). Can the situation be salvaged? ROBERT EGBE asks.

    Two years ago, Maduka Onwukeme and his client were hurrying to the car park after the hearing of their matter at the Ogba Magistrates’ Court in Lagos, when a prosecutor ran after them.

    The lawyer told The Nation that he could not have imagined what happened next.

    Onwukeme said: “Grinning from molar to molar, he (the prosecutor) calls us aside and says: ‘I can kill the case. Just pay N20,000.’

    “I couldn’t get my eyes off his unkempt coat and badly worn out shoes as I wondered how come he never wore good clothes with the demand for bribes and dirty money.

    “Well, I told my client, who was desperate as he had postponed his trip to Dubai many times on account of the case, not to give the guy a kobo. We eventually beat him in court and my client walked home free, saved from a six-month jail term and in time to travel the next week.”

    Old problem

    The Federal Government’s suspension  of Chief Justice of Nigeria (CJN) Walter Onnoghen on January 11, following a Code of Conduct Tribunal (CCT) order caught everyone by surprise.

    According to the government, the suspension subsists until the conclusion of his trial at the CCT.

    Chief Justice Onnoghen is to stand trial before the CCT on a six-count charge of failure to declare some of his assets, including about $3million, said to be lodged in five accounts.

    A Bank Verification Number (BVN) search may also have exposed more accounts linked to him.

    Although he was not accused of graft, his travail has renewed interest in judicial corruption.

    But corruption in the judiciary, like in other sectors, is not new. Stakeholders have long recognised its prevalence.

    On February 17, 2012, the Nigerian Bar Association (NBA) accused some Senior Advocates of Nigeria (SANs) and retired judicial officers of complicity in judicial corruption.

    Then NBA President Mr J.B Daudu (SAN) said at a valedictory court session held in honour of the late Justice Anthony Nnaemezie Christopher Aniagolu: “Corruption is now a live issue that is threatening to tear apart the foundations and fabric of the society.

    “We are no doubt aware that some of our colleagues, including very senior counsel and at times eminent retired judicial officers, go about offering their services as ‘consultants’, particularly in election cases for incredible sums of money so as to act as a conduit between his client and the election court.”

    Daudu promised to identify and hand over the culprits to law enforcement agencies for prosecution. He never did until he left office.

    ‘Police, judges most corrupt’

    The Confirmation of the scale of the problem came in August 2017 when the United Nations Office for Drug and Crimes (UNODC) released its corruption report.

    The report accused police officers, judges and prosecutors as the most corrupt public officials in Nigeria.

    The survey titled: Corruption in Nigeria – Bribery: public experience and response, was presented in partnership with the National Bureau of Statistics (NBS).

    It estimated the average bribe paid to judges/magistrates as N18, 576 while prosecutors received an average of N10, 072 as bribes from Nigerians.

    A shocking episode in the nation’s judicial history occurred at midnight, October 8, 2016 when the Department of State Services (DSS) raided the home of judges in the Federal Capital Territory (FCT), Rivers, Gombe, Kano, Enugu and Sokoto states on suspicion of corruption. Items and cash in local and foreign currencies were recovered.

    Affected in the raid were Justices Adeniyi Ademola and Nnamdi Dimgba of the Federal High Court Abuja; Mohammed Liman, Federal High Court Port Harcourt; Justice Muazu Pindiga, Gombe High Court; Justice Kabiru Auta, Kano High Court; Justice Samia, Sokoto High Court; A.I Umezulike, Chief Judge, Enugu State; and Justices Sylvester Ngwuta and John Inyang Okoro of the Supreme Court.

    Most of the judges were eventually not charged while none of those tried was convicted by the courts.

    How judicial corruption occurs

    Onwukeme’s experience typifies one way through which judicial corruption is perpetrated. A middleman, usually an unscrupulous prosecutor, secretly approaches a defendant or his lawyer and offers to influence a magistrate on the defendant’s behalf. Sometimes it is the defendant who financially induces a prosecutor to attempt to influence the magistrate.

    The process is similar at courts of record, but here, the parties and forms of inducements are higher: Retired judges, senior lawyers, politicians, journalists hold sway. The stakes are also higher. An upright and fearless judicial officer may make an official complaint and get the go-between in trouble. An unbending judicial officer also stands the risk of physical harm.

    In 2017 during a criminal trial at a Lagos High Court, the defence counsel accused the prosecutor – an Economic and Financial Crimes (EFCC) lawyer – of asking for a bribe to withdraw the charge. He alleged the prosecutor made the offer when both parties met on an airplane.

    But the furious EFCC counsel described the allegations as pure falsehood, referencing the several allegations of misconduct against the accusers.

    The accuser was subsequently disbarred by the Legal Practitioners Disciplinary Committee (LPDC), and his name struck off the Roll of Legal Practitioners by the Supreme Court, but for an unrelated misconduct.

    An insider speaks

    In 2014, former President of the Court of Appeal, Justice Ayo Salami (retd), took the Bar and Bench to the cleaners over corruption and intimidation of judges.

    He spoke during the opening ceremony of the biennial law week of the Nigerian Bar Association (NBA), Ilorin chapter.

    Salami said: “It is my respectful view that appeal should be made to these retired senior justices to leave the despicable role of bribing or intimidating judges.  They should engage themselves in other respectable vocations.

    “The judges, who lend themselves to these dishonourable practice of receiving money or lending themselves to perverting the course of justice under the guise of not receiving reward monetary or otherwise, should note that there are other means of checking the excesses.

    “The problem of corruption in the Nigerian judiciary is real and has eaten deep into the system. It must, however, be noted that it is not all judicial officers that are corrupt and dishonourable. There are some who are clearly identifiable as corrupt but they are protected by the system.”

    How are judges appointed?

    The National Judicial Council (NJC) is the body charged with recommending to the President/ Governor individuals for appointment into judicial posts, or for removal from judicial posts. Such individuals must have spent between 10 and 15 years practicing Law, depending on the level of appointment.

    Constitutional requirements for judicial appointment are spelt out in Chapter VII of the 1999 Constitution (as amended).

    But in practice, the process is not so transparent and accusations of cronyism, favouritism and lobbying are commonplace.

    For instance, it is not unusual at state and federal levels for children or close relatives of judicial officers to also become judges, raising suspicion that some of the appointments may have been influenced.

    Last March 3, a former Chief Justice of Nigeria (CJN), Justice Mariam Aloma Mukhtar, blamed ‘godfatherism’ and lobbying in appointments as responsible for the falling standard in the nation’s judiciary.

    Mukhtar, the first female CJN, was reputed for taking strong disciplinary actions against erring judicial officers during her tenure from July 16, 2012 to November 20, 2014.

    Speaking in Abuja, at a book presentation in honour of a retired female Justice of the Supreme Court, Justice Clara Ogunbiyi, she warned stakeholders and the National Judicial Council (NJC) to discourage the trend, otherwise risk having an incompetent and weak judiciary.

    She said: “I will, at this junction, revisit the issue of lobbying and in addition favouritism and godfatherism in the appointment of judicial officers.

    “It is sad that we allow the rising culture of lobbying to influence appointment in the judiciary.

    ”If we are to revive what held sway in the past, that is, maintaining a strong and competent judiciary, then merit should be the watchword. Lobbying, favouritism and godfatherism should be discouraged and discarded, as they lead to the fall in the standard, and instead of enhancing the institution; they devalue and weaken it because of incompetence of the personnel.

    “These practices negate the principles of justice and breeds indiscipline.”

    ‘Up to 25 per cent of corrupt lawyers appointed as judges’

    Last October, a former Nigerian Law School Deputy Director-General, Prof Ernest Ojukwu (SAN), lamented that the NJC had not got it right with the appointment of judges.

    According to the Senior Advocate, at least 10 to 25 per cent of corrupt lawyers, magistrates and court registrars appointed as judges are persons of shady character.

    “Even when there is evidence pointing at these men and women, we have seen the NJC look the other way when recommending their appointment as judges.

    “Recently President Buhari devalued the integrity of NJC by rejecting the recommendation of some proposed judges on grounds of questionable integrity.

    “If we don’t get the integrity issue right at the point of appointment of judicial officers and other personnel, it would be very difficult to get it right at the cleansing stage,” Ojukwu said.

    The eminent professor of law said some lawyers of questionable integrity have also been appointed as NJC members.

    He added: “These lawyers have been nominated by Presidents of the Nigerian Bar Association. It is terrible that we have such diminished personality on the NJC.

    “Of course the NBA has been a colossal failure at assisting in the cleansing of the judicial system.

    “We have had the NBA nominate lawyers for appointment as judges when those lawyers have a track record of corrupt practices.”

    The Bar’s feeble efforts to tackle the scourge

    During a special session of the Supreme Court to mark the commencement of the 2015-2016 legal year and the swearing-in of newly conferred SANs, then NBA President, Augustine Alegeh, SAN, raised the issue of judicial corruption.

    Alegeh said: “It is indeed very worrisome that certain judicial officers still engage in rendering judgments for a fee. Instances abound where judicial officers have resorted to turning the law on its head and making pronouncements which are at variance with the provisions of the law.

    While Daudu’s NBA promised to set up an anti-corruption commission to identify and hand over the culprits to EFCC or ICPC for prosecution, Alegeh also said the association would act on the matter.

    But none of the NBA chiefs was able to disclose the names of corrupt judges and senior lawyers involved in the practice.

     

    Is poor remuneration

    the problem?

    Executive Director, Socio-Economic Rights and Accountability Project (SERAP), Adetokunbo Mumuni, told The Nation that judges exist on a high pedestal.

    He said: “Anyone who has undertaken the assignment of a judge has taken up one of the responsibilities of God among human beings. So, you have to be above reproach like Ceaser’s wife. When you understand the role that you have taken, that is when you know bribery is not for you. A judge’s position is a very important, influential one. When a judge starts taking bribes, we are finished in the society.”

    So, knowing all these, why do some judicial officers, give in to the temptation to compromise their calling? Are judicial officers underpaid? Is that the problem?

    In 2017, the Nigerian Bar Association (NBA) nominated nine lawyers, including six SANs, for appointment as Justices of the Supreme Court at the instance of CJN Onnoghen.

    Two years later, nothing has been heard about the plan.

    At the maiden annual lecture of the Body of Senior Advocates of Nigeria (BOSAN) held last June 28, CJN Onnoghen lamented that the Bench was no longer attractive to the brightest lawyers.

    Onnoghen, in a no-holds-barred discussion, said many SANs were so wealthy from law practice that they were not interested in switching from the Bar to the Bench.

    Perhaps, this explains why the CJN was unable to send lawyers straight to Supreme Court?

    Onnoghen said: “We (SANs) feel so big, in fact, the way some of you address the Bench, you look down on the judges. Yes, it’s the truth. Let’s talk to each other man to man. You look down on the judges.

    “…because you have continued in private practice – some branched out – and you become a Senior Advocate of Nigeria, you think by virtue of that position, the other one no longer has any grey matter in his head. I don’t think you are thinking right. No, it can’t be so.”

    In a 2015 interview with The Nation, a retired judge of the Ogun State Judiciary, Justice Babasola Ogunade explained how joining the Bench could adversely affect a lawyer’s earnings.

    He said: ”The way I met the Bench wasn’t anything to write home about. One, my income was reduced by almost 75 per cent. But I didn’t complain because I knew what I was going into. I felt satisfied with what I had done in practice. And I was sure I could manage with whatever I earned. So, the usual temptation that people have, to want to cut corners – I didn’t have it, maybe because of my family background.I’m satisfied that I gave of my best.”

    Read also: Retired Generals back Buhari for second term

    But Mumuni does not feel judges’ remuneration should be an excuse.

    He said: “In 2003, I had the opportunity of being offered the work of a judge. I said I was not interested. The reason then was that their salaries were nothing to write home about. But as I speak to you today, Nigerian judges are one of the best paid ever. Nobody in this age and time can complain of lack of paucity, or smallness of salary; this I know. It can never be a question of adequacy of salary again…”

    Fear for life after retirement?

    Could fear of survival after retirement push judicial officers to compromise their integrity?

    Justice Ogunade noted that unstable pension might be a concern for judicial officers nearing retirement.

    He said: “My view is that having done your best for the Bench, you shouldn’t be among those going cap in hand to ask for your pension. And I think it’s worse here because your earning is tied to the apron string of state executives. They are the ones who will pay you if you have served in the states. I think they are trying to improve upon that now. Most of the time it’s for the governor to say: ‘I don’t have money for pension. We’re struggling to have money’.”

    In December 2016, 32 retired judges, including five retired state Chief Judges in Anambra State, led by Justice Godwin Ononiba (retd), sued Anambra State Governor, Willie Obiano, at the National Industrial Court of Nigeria for non-payment of their severance gratuity, upward review of pensions, arrears of housing allowances and overall welfare.

    Only 19 of the litigants were still alive when the suit, marked: NICN/Awk/43/2016, was filed.

    Judges ‘almost dropping dead’

    According to the suspended CJN at the BOSAN lecture, Judges, particularly at the Supreme Court level, are nearly being worked to death.

    Onnoghen said: “Look at the job of a judge, particularly with political matters all over: nobody wants to do justice to his fellow human being except it goes to court. Even when it gets to court, you are not ready to accept what the court says, whatever the court says, it must have been compromised one way or another.

    “So, you create these problems and we are there, like these election matters, they have started already, pre-election matters, disputes about (party) congresses all over the place. Good! They will come back to the judicial officer and we’ll work, like at the Supreme Court, we work and we’re almost dropping dead.”

    What judicial officers earn

    A 2016 report obtained and computed by the Economic intelligence magazine showed that the total emoluments of judicial officers in Nigeria range between N10,899,284 per year or N908,273.67 per month for Justices of the Supreme Court and N7,940,856 per annum or N661,738 monthly for a Judge of the State Customary Court of Appeal.

    The report showed that the Chief Justice of Nigeria (CJN) earns N6,727,945.00 per year or N560,662.08 monthly, noticeably less than his brother Supreme Court Justices. But like the President of Nigeria, the holder is to be provided with vehicle maintenance and fuelling, domestic staff, entertainment, utilities and newspapers.

    Accommodation and furniture will also be provided for the CJN, while annual leave, severance gratuity and vehicle loan which is optional will be 10 per cent, 300 per cent and 400 per cent respectively. His duty tour allowance within Nigeria is settled at N50,000 per night, while that of overseas or Estacode amounts to $2000.00 per night.

    Furthermore, the CJN has 25 per cent of his annual basic salary reserved for personal assistant and outfit each or its equivalent of N840,993.13 respectively. The holder also has half of annual salary as hardship allowance which amounts to N1,681,986.25. (See table).

    Solving the pension problem

    Justice Ogunade believes judicial financial independence is key to putting an end to pension irregularity.

    He said: “I think effort should be made to totally separate both serving and retired judges’ emolument from the apron strings of whether federal or state administration. I understand that the emolument and remuneration of judges rarely comes under First Charge on revenue. They have managed to relegate it to this stage that judges have almost become beggars. Those who are serving will have their own story to tell. You’re left under the whims and caprices of whoever becomes the governor. It’s just not right, particularly for a person who believes that he has given of his best and has not for any time soiled his hands and is satisfied with the sacrifices he made. And when you retire, you’re going to be left short of funds. Even that which has been given to you, you may not be having it on time. I don’t think it’s the best.”

     

    Can the Judiciary

    be fixed?

    Can the Judiciary fix itself? The Justice Reform Project (JRP) certainly thinks so.

    The group, comprising 20 SANs said there was “widespread perception that there is corruption in the judiciary and this perception is supported by anecdotal evidence.”

    The SANs are: Messers Ebun Sofunde, Kayode Sofola, Kola Awodein, Ademola Akinrele, Osaro Eghobamien, Babatunde Fagbohunlu, Wemimo Ogunde, Dr. Eyimofe Atake, Mrs. Olufunke Adekoya, Mr. Oluwafemi Atoyebi, Mr. Yemi Candido-Johnson, Mr. Olasupo Shasore, Dr. Babatunde Ajibade, Jibrin Okutepa, Mr. Olumide Sofowora, Prof. Ernest Ojukwu, Mr. Olatunde Adejuyigbe, Dr. Adewale Olawoyin, Mr. Adeniyi Adegbonmire,  and Mr. Oyesoji Oyeleke.

    The group argued that it was “beyond dispute that the system for self-regulation in the judiciary and the legal profession has failed.”

    The JRP said the National Judicial Council (NJC) was perceived as being ineffective in exercising discipline “where high-ranking judicial officers are involved and that its proceedings and internal processes are unduly opaque.”

    Calling for urgent reforms in the judiciary, the senior lawyers said: “It must be obvious to everyone that the time has come for urgent self- introspection and evaluation with the ultimate aim of a robust systemic reform of the Nigerian judiciary and the legal profession.

    The JRP outlined 12 areas it would collaborate with stakeholders towards “achieving broad consensus on, and implementing a process that will lead to the review and reform of the following critical aspects of our justice delivery system.”

    They include: the composition, constitution, functions and internal controls of the NJC, the process for the appointment, continuing education and promotion of judicial officers, the process for the discipline and regulation of judicial officers and the terms and conditions of service of judicial officers.

    Others are judicial ethics, values and the relationship of the Bench with the Bar, the process for the appointment of lawyers to the Body of Benchers, composition, constitution and internal controls of the Legal Practitioners Privileges Committee, the process and criteria for the conferment of the rank of SANs.

    They also include the roles and responsibilities of SANs, regulation and discipline of Legal Practitioners, ethics, values and standards of legal practice as well as composition, constitution and internal controls of the National Executive Committee of the NBA.

     

  • Judiciary and matters arising

    We have to presage this interaction with a simple act of lifting the veil over the undeserved legal summersault with which some of our colleagues have embarked upon clearly not because they genuinely wanted to protect the rule of law but much more for their self-preservation. The fact that Justice Onnoghen-supporting lawyers were involved in Forum Shopping of Various Courts to secure favourable ex parte orders to prevent the trial of Justice Onnoghen clearly expose them as not acting in the best tradition of credible bar but for their private interest. They knew that the Federal and Abuja High Courts are of equal jurisdiction with that of the Code of Conduct Tribunal, CCT. Yet they misadvised themselves in making Justice Onnoghen to be absent at his trial that was legally set.

    Furthermore, the senior lawyers who are presumed to know the court rules used their seniority status to force an instant ruling from the court on the same date they approached the appellate court. They were aware of their undue haste that undermined the ordinary processes stipulated in the rules of the Court of Appeal.

    No doubt, there is no perfection in humanity. Our intervention on this Justice Onnoghen’s matter does not suggest that we are formulating an interrogation that cast some public officers as angels while others are demons. Who knows who among the handlers of this matter is himself/herself not neck deep in various act of corruption? As the saying goes, every day is for the thief but one day is for the owner. Their own day of reckoning could come sooner than they expect it.

    There have been various pontifications on due process. The argument that Justice Onnoghen should have been reported to the NJC (which Onnoghen presides over) to comply with the Court of Appeal ruling (yet to be adjudicated upon by the Supreme Court) in Justice Ngajiwa’s case that implies that no charges can be brought against a judicial officer until his matter has been tried by the NJC remains a misguided premise. Is the NJC now investing itself with police power of investigation?

    Insisting on the Appeal Court’ ruling in Justice Ngajiwa’s case would amount to accepting that it is right and acceptable that the judiciary can  resort to illegality by clothing judicial officers with immunity to which other public officers are not covered. In other words, the Engineers, Medical Doctors, Architects, Teachers, Farmers, Pharmacists etc. councils should first decide the fate of their members who commit crimes and other misdemeanours before the constitutional provisions can apply to them. That will certainly lead to absurdity which the law wants to avoid at all times.

    The partisan politicians and their lawyers have abandoned substance to chasing shadow to make us a laughing stock globally. They have rather held on to a tenuous technicality contained in Ngajiwa’s matter that is still in contention because it will certainly lead to absurdity of monumental dimension. All other professional bodies can equally insist that the Nigerian Law will only apply to their members who had contravened a particular law after their organizations have tried their members.

    The collaborating senior lawyers should have refreshed themselves with the authoritative judgement of Chief Justice Onnoghen delivered on July 12, 2013 in Ismael Ahmed and AlhajiNasiru Ahmed, Congress for Progressive Change (CPC) Kano State Chairman and the Independent Electoral Commission (INEC). Interpreting paragraph 12 of the Fifth Schedule  of the 1999 Constitution (as amended) as regards CCT’s jurisdiction, Justice Onnoghen held:”‘ the said paragraph 12 provides as follows: any allegation that a public officer has committed a breach of or has not complied with the provisions of this Code shall be made to the Code of Conduct Bureau.

    (b) “The foregoing provisions are clearly unambiguous and so construed literally mean that any breach of any provisions of the said Fifth schedule or matters of noncompliance with any provision of the Code shall, (meaning that it is mandatory i.e. must) be made to the Code of Conduct Bureau that has established its Tribunal with the exclusive jurisdiction to deal with any violations of any provision under the Code.”

    © “If I may emphasise, any violation shall be made to Code of Conduct Bureau. The provisions have made it mandatory to take any matters so covered by the Fifth Schedule (supra) to the Code of Conduct Bureau and not to any ordinary regular Courts as has been done in this instance.”

    (d) “If I may repeat, the Code of Conduct Tribunal has been established with the exclusive jurisdiction to deal with all violations contravening any of the provisions of the Code as per paragraph 15(1). This provision has expressly ousted the powers of ordinary regular Courts in respect of such violations.”

    (e)”The Tribunal to the exclusion of other courts is also empowered to impose any punishments as specified under sub-paragraph (2) (a), (b) & (c) of the paragraph 18 as provided in sub-paragraph 3 and 4 of paragraph 18 while appeals shall lie as of right from such decisions to the Court of Appeal.”

    (f)”Simply put, to tackle any violation of the Code starts before the Code of Conduct Bureau Tribunal to the Court below on appeal and on a further appeal there from to this Court.”

    (g) “As can be seen, the lower Courts exercise appellate jurisdiction over the Code of Conduct Tribunal and no more.”

    The fact that Justice Onnoghen failed to appear before the CCT when in fact the Bailiffs gave evidence that Justice Onnoghen asked that the summons should be collected on his behalf by one of his aides is unfortunate. And to show that he was aware of the summons, his lawyers converged on the court to raise objections- first that he was not personally served and second that the Code of Conduct is incompetent to try the Chief Justice of Nigeria demonstrate Justice Onnoghen’s utter contempt for the judiciary he presided over. Instead, he obeyed the advice of the PDP governors of the South-south not to attend to the CCT hearing. In other words, he became a partisan agent serving as the head of Nigerian judiciary. How can the other political parties trust him as an impartial arbiter?

    The consequences of his failure to appear before the CCT have far reaching consequences. Perhaps, the CJN is above the law or he is a law to himself.

    Again, let us reiterate that the violation/non-declaration of asset declaration provisions as contained in the Fifth Schedule, Part 1 of the 1999 Constitution was a misconduct not done in the performance of Justice Onnoghen official duty. It is therefore not a matter constitutionally expected to be referred to the National Judicial Council, NJC, as is being wrongly suggested by political opponents of the government and perhaps innocently by those who are ignorant of the law.

    Furthermore, that Justice Onnoghen having admitted in his own statement to have violated the law and yet wants to remain as the head of the judiciary is unfortunate. It further explains the degeneration to which Nigerian judiciary has sank in recent years. How can Justice Onnoghen preside over any matter violating the provisions of the constitution when he has been caught red handed as a violator but hoping to hang on to the unfounded technicality to remain in office?

    It is in the best interest of Nigeria and Nigerian judiciary that Justice Onnoghenresign immediately so as to save us of the national embarrassment that his conduct has occasioned.

     

    • Opadokun is convener, Movement for Value Restoration.

  • The judiciary, its own enemy – I

    Sometime in 2009, a terminally-ill President Umaru Musa Yar’Adua went into a sudden relapse and had to be rushed to a Saudi Arabian hospital. And this time the man was hanging virtually on a gossamer of hope he might live, even if it was only so he could finish up his barely two-year old first term. But as concerned Nigerians anxiously fretted over the ominous clouds looming above the nation’s gloomy firmaments, many of the geo-ethnic hawks in Yar’Adua’s Peoples Democratic Party, PDP saw instead a beautiful silver lining, -an opportunity to stir up geo-political and ethno-religious mischief. They would soon instigate a needless constitutional crisis in remonstration merely of the fact that Yar’Adua left without transmitting to the National Assembly a letter, as recommended by Section 145 of the Constitution, to make Vice President Goodluck Jonathan president, in ‘acting’ capacity. For Nigeria, this was an excellent recipe for, -or a casus belli if you will- to justify sectional combat. And –like the bellicose, cantankerous Tasmanian Devil dog of the Australian outback- soon Nigeria’s grouchy ‘tribes and tongues’, her fanatical ‘faithful and devout’, would jump at each other’s jugular, as we always do, even at the most trifling of issues, spoiling for who controls the most of the levers of political power or who has the unenviable lot of holding the short end of the gaming stick.

    By the way, even before it had to be amended afterwards, Section 145 of the Constitution which recommended that a president proceeding on leave might transmit a letter to the National Assembly, was actually premised upon the conditional conjunctive ‘whenever’, -i.e. “Whenever the president transmits…”. It had not the ‘mandatory’ verb-to-be ‘shall’ which commands the performance of a duty, -as in: “The president SHALL transmit…”. And so it was clear that President Yar’adua, although he was morally obliged to ‘transmit’ a letter to NASS, knowing that could provoke sectional and sectarian sentiments, he was not constitutionally obligated so to do. Nor would failure on his part to do so have left the vice president any less legally capacitated to function as ‘acting president’ in the absence of the president. Reason being that in actual fact the whole idea about conferring ‘acting’ presidency on the vice president is more nomenclatural or designatory than it is essentially a capacitating or empowering constitutional exercise. Because even in his capacity as ‘vice president’ who was elected in duality with the president, Jonathan would automatically be imbued with presidential powers any time the president officially was out of orbit and the cosmic destination of the presidency would suffer no geologic delay. The vacuum is self-filling. It does not necessarily require the mechanics of constitutional ritual to be filled.

    The reason we bicker over what should be legal from what is not, is that we –Nigerians especially- have elected always to hold ourselves captives of the naked ‘letter’ and not freeborn of the liberal ‘spirit’ of the law. Our lawyers and judges, for their own selfish reasons, are happily subservient always to the written ‘law’ and not to the jurisprudence of it, which provides the philosophical underpinnings or raison d’être for its existence in the first place. Neither the bar nor the bench are prepared to liberate us from the usually complex hyacinth of duplicity that almost all un-reformed English systems of law are hostage to. It is not true that the hands of judges can be tied by the rigid provisions of the law as most crooked judges would want us to believe; rather it is the rigid and illiberal disposition of judges who will not apply their judicial minds to the jurisprudence of law that make it well-nigh impossible for the courts to do justice according to law. As Lord Denning said in his ‘Landmarks In The Law’ “A judge must not alter the material of which (a piece of legislation) is woven, but he can and should iron out the creases”.

    But Justice Abutu of the Federal High Court was not one such slave of the written law to the exclusion of its unwritten spirit. He had a judicial mind that was amenable to the vagaries of the jurisprudence of law when Femi Falana sued to compel a bed-ridden Yar’Adua, to transmit a letter to the National Assembly, so that an ‘un-capacitated’ Vice President Jonathan could act as president. Justice Abutu, in throwing out that suit, had said that Jonathan as ‘vice president’ even without such trifling investiture as ‘acting president’, had all the powers of a president as provided in Section 5 of the Constitution and that rather than quibbling and splitting hairs over such trivia, he should get down to action as the constitutional spare tyre that he had sworn to be. Rather than disqualifying himself under the presumption that he was not constitutionally capacitated to act as president, Jonathan was supposed to have assumed the capacity so that the onus would lie only on those who had any imputation to the contrary, to sue to challenge the legality of his presidential actions.

    And in fairness to Jonathan, he had in fact from the outset, started doing just that, especially when he deployed the armed forces (one of the most important duties a president undertakes in a democracy), to Plateau State in the wake of an outbreak of ethno-religious bloodletting that year. But soon after that, a manipulably conniving Jonathan would lend his ears to the mischievous instigation of the geo-ethnic hawks of his party to insist that thenceforth he had to be made acting president before he could function in lieu of the president. First, he claimed that he lacked presidential powers to swear in a team of federal permanent secretary; and thereafter as the then Chief Justice Idris Legbo Kutigi’s tenure came to an end, Jonathan also said he could not swear in his successor, Justice Katsina Alu. If Justice Kutigi could not stay in office a day longer than his tenure and if Jonathan would not swear in a new Chief Justice, then the PDP hawks would’ve achieved their objective of hoisting on the nation a needless constitutional crisis. The outgoing Chief Justice, was said to have dug in the archives for days to unearth the shred of an old, scarcely used ‘Oath Act’ and from which he derived the power as outgoing Chief Justice to swear in his successor.

    And the good thing was that Justice Kutigi was able to do that in good enough time to avoid that constitutional crisis which the PDP mischief makers had hoped was already a fait accompli. Ironically a new Chief Justice in the person of the late Katsina-Alu would come on board as the new judicial sheriff in town and whose scandal-tainted tenure would bring the image of the Nigerian judiciary to an all-time low especially with the alleged attempt by the late Chief Justice to compel the then President of the Court of Appeal, Justice Ayo Salami, to influence the outcome of some state election petitions. The National Judicial Council, NJC  of which the Chief Justice Alu was head and most of whose members (as with all Chief Justices) he had not only the privilege of appointing but also the control of the perquisite of office to influence.

     

    • To be continued…

  • Onnoghen: NJC members in move to save Judiciary

    An “emergency” move to save the Judiciary has begun.

    The National Judicial Council (NJC) has summoned an emergency meeting of its members for tomorrow to discuss “developments in the Judiciary”.

    Members are expected to arrive in Abuja for the meeting scheduled for 10am.

    It was also gathered that the main agenda of the meeting is the suspension of Justice Walter Onnoghen as the Chief Justice of Nigeria (CJN), the inauguration of Justice Ibrahim Tanko Muhammad as acting CJN and the allegation of the code of conduct violation against Justice Onnoghen.

    A source said Justice Onnoghen and Justice Muhammad may be excluded from the meeting, because of their involvement in the issues to be discussed.

    A source at the NJC said the suspended CJN had allegedly prevented the body from addressing the issues surrounding the charge against him when he used his power as Chairman of NJC to suspend, indefinitely, the body’s meeting earlier planned for January 15.

    The source said: “I believe this meeting is meant for members to effectively look at the issues and recent developments in the Judiciary and for them to take a formal position.

    “Like the acting CJN said on Saturday, the Judiciary is truly in a trying time. And it is important that the NJC takes a formal position for posterity sake.”

    The embattled CJN will know his fate today on whether or not he will face trial before the Code of Conduct Tribunal (CCT).

    Onnoghen’s defence lawyers have challenged the jurisdiction of the tribunal to put him in the dock on six allegations bordering on alleged breach of the Code of Conduct for Public Officers.

    If the CCT assumes jurisdiction, the CJN has no choice but to make himself available for trial.

    But if the tribunal declines jurisdiction, the case against Onnoghen will be struck out and he will be back to his seat leaving the acting CJN, Justice Tanko Mohammed, with no choice but to step down.

    Also, if the CCT declares that it has no jurisdiction, the suspension of Onnoghen by President Muhammadu Buhari will automatically amount to nothing.

    As at the close of work on Friday, the CCT was yet to receive the Court of Appeal Ruling which ordered it to stay action on the trial of Onnoghen.

    There were strong indications last night that the Federal Government may still petition the NJC and submit a heap of evidence against Justice Onnoghen.

    According to a source, who spoke in confidence, the decision of the tribunal will determine whether or not the suspension of Justice Onnoghen will subsist.

    The source said: “There are two applications before the CCT but the most important is the application by the defendant (Onnoghen) through his lawyers, challenging the jurisdiction of the tribunal to try him.

    “Once the CCT affirms jurisdiction, the CJN will undergo trial on the allegations against him. But if the tribunal has no jurisdiction, the Chairman of the tribunal, Justice Danladi Umar, will strike out the case against the CJN.

    “And any decline of jurisdiction implies that the ex parte order which led to the suspension of the CJN will become a nullity. The tribunal will also not be able to hear the interlocutory application of the prosecution before it.”

    As at press time, the CCT was yet to receive the Court of Appeal ruling which ordered it to stay action on the trial of Onnoghen.

    The CCT source said: “The Court of Appeal on Wednesday restrained this tribunal from going ahead with the trial of Justice Onnoghen. We have not been served the ruling.

    “If we are served the order before sitting, we will, out of respect, obey the order of the Court of Appeal and adjourn the matter to a date. But the tribunal will not adjourn sine die (indefinitely.”

    The presidency opted to file an application for ex parte order to suspend the CJN in the light of the provision of Section 231(4) to enable Justice Onnoghen face his trial in CCT and attend to other related cases in court, The Nation learnt.

    The section states: “If the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.”

    The source said: “The suspension of the CJN is actually meant to allow him enough time to concentrate on his arraignment before the CCT and his applications before other courts, including his likely appearance before the National Judicial Council (NJC).

    ”Like in other jurisdictions, the CJN cannot remain in office and be attending court sessions here and there. He needs this leverage to be able to answer all the allegations against him.

    “Unless the CJN is pretending, his arraignment before the CCT and other issues have distracted him in the last 10 days. He could not even attend the last Council of State meeting. The President decided to take the bull by the horns because allegations of corruption are involved.”

    On the tenure of the Acting CJN, the source added: “He will be in charge for at least three months. It is not an absolute appointment.

    “Go and read Section 231 (5) of the 1999 Constitution. This action was not based on sentiments at all.”

    Section 231 (5) says: “Except on the recommendation of the National Judicial Council, appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not reappoint a person whose appointment has relapsed.”

    Another source also attributed the suspension of the CJN to the abrupt postponement of the 88th meeting of the NJC by Justice Walter Onnoghen.

    The source said security reports indicated that the postponement was allegedly a “plot” to prevent the NJC from allowing the government to present a petition to the council for discussion which might lead to the suspension of the CJN.

    The 88th meeting was to hold on January 15.

    But the NJC’s Director of Information issued a notice of postponement.

    The notice said:  ”Sir/Ma, I am directed by The Honorable, The Chief Justice of Nigeria and Chairman of the National Judicial Council, Hon. Justice W. S. N. Onnoghen, GCON to inform you that the 88th Meeting of the Council slated for Tuesday 15th, January, 2019 has been postponed to a later date to be communicated to you.

    “Any inconvenience this might cause you is highly regretted. Please, accept the assurances of the high.

    A government source said: “The Federal Government will submit a petition and heaps of evidence against the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen next week.

    “When the NJC takes its decision, the law will then run its full course on Onnoghen. Nigerians will then have the opportunity to have the details of the allegations of corruption against His Lordship, Hon. Justice W. S. N. Onnoghen, GCON.”

    “There was an ambush somewhere to block the wheel of justice by preventing the NJC from sitting. No responsible government will allow that,” the source added.

    As at press time, there were indications that the Federal Government may still submit a petition and evidence against Justice Onnoghen to the National Judicial Council (NJC).”

    The Socio-Economic Rights and Accountability Project, (SERAP) has sent an open petition to the Next-In-Rank to the Chairman of the National Judicial Council (NJC), Acting CJN Justice Tanko Mohammed, urging the NJC “to immediately take over from the Code of Conduct Tribunal the case of Onnoghen”.

    A statement by SERAP Senior Legal Adviser, Ms Bamisope Adeyanju said it had asked NJC to set up a committee to “investigate the allegations of breach of constitutional asset declaration requirements against him.”

    The organisation also urged the NJC to “ask Justice Onnoghen to step aside from his role as Chief Justice, pending the outcome of your investigation into the allegations against him.”

    “Also, if following your investigation, the allegations against Justice Onnoghen are established, the NJC should refer the case to appropriate anti-corruption bodies for prosecution. Similarly, Justice Ibrahim Tanko Muhammed should recuse himself from the process, as the Acting Chief Justice of Nigeria.”

    The organisation asked the NJC to “consider the issue of appointment of Justice Muhammed with a view to ensuring strict compliance with constitutional provisions. The NJC should take the recommended action within five days of the receipt and/or publication of this letter, failing which SERAP will take appropriate legal action to compel the NJC to take action on the case.”

    The petition said: “The urgent intervention by the NJC would remove the allegations against Justice Onnoghen from the vicissitudes of political controversy, and a clear and present danger to the independence and authority of the judiciary. It would also help to reverse the country’s increasing movement toward anarchy or despotism.”

    ”It is in time like this that the NJC must be most vigilant and alive to its constitutional duties, if it is not to permit a diminution of our treasured constitutional rights.”

    A copy of the petition was sent to Mr. Diego García-Sayán, UN Special Rapporteur on the independence of judges and lawyers.

    It added:  ”Neither knee-jerk reactions by politicians nor abuse of the legal and judicial process by the government and some senior lawyers would be acceptable to break the constitutional logjam. The NJC ought to be concerned with the gravity of allegations against Justice Onnoghen.”

    “This matter has inevitably thrown our country into a judicial-cum-constitutional crisis which, if not urgently addressed would lead to political crisis that would seriously put at risk Nigeria’s fledgling democracy, consequently exacerbating the declining respect for human rights at all levels of government.”

    “The NJC should not and cannot stand-by while the authority and independence of the judiciary are diminished to the point at which the citizens lose confidence and trust in its ability to render justice to those in need.”

    “SERAP is concerned that the politicisation of our judiciary poses the greatest threat to the independence of the judiciary, to Nigeria’s fledgling democracy and would”, if not urgently addressed lead to denial of access to justice to the most marginalised and vulnerable section of the population.”

    “The politicisation of the judiciary by politicians would endanger Nigerians’ fundamental human rights and the country’s international human rights obligations, and consequently, the fundamental principles of our constitutional democracy.”

    “It is the responsibility of the NJC to ensure the preservation of our constitutional values and to prevent the politicization of the judiciary and politicians from running roughshod over sacred judicial functions, and consequently, the rights of citizens.”

    “Nigerians deserve a judiciary capable of serving as essential bulwark of constitutional government, a constant guardian of the rule of law, and owing fidelity to no person or party. Unless the NJC acts as requested, the mandates, ability and authority of the judiciary to act as a check on the political branches of government and to protect citizens’ human rights would be drastically curtailed.”

    “The allegation that Justice Onnoghen failed to declare his assets as required by the Nigerian Constitution of 1999 (as amended) and the arbitrary response by the Federal Government have thrown our judiciary into a crisis, with politicians seemingly taking full advantage of the crisis, resulting in the politicisation of the judiciary.”

    SERAP expressed concerns over the politicisation of the allegations against Justice Onnoghen.

    A statement by SERAP Senior Legal Adviser, Ms Bamisope Adeyanju, said: “Many politicians have failed to consider the matter through a constitutional lens and have in fact made statements that may be considered prejudicial to the cause of justice, the interests of the judiciary and Nigeria.”

    “As the Senate prepares to sit to discuss the matter, the situation is likely to be even more politicized, especially at the time of election when politicians jostle for position, power, and relevance. Any intervention by the Senate is likely to be politically motivated and would not satisfactorily break the logjam.”

    “Many Nigerians would see the suspension of Justice Onnoghen as outright intimidation of the judiciary in the hope of making it more deferential to certain politicians, as judges prepare to hear flood of election petitions that are expected to follow the general elections in February and March 2019.”

    “Suspending the Chief Justice of Nigeria by an ex parte order obtained via an apparently flawed legal and judicial process is an absurdity too gross to be allowed to stand. It suggests the constitution is no longer the supreme law of the land.”

    “Furthermore, SERAP is concerned that the allegations of violation of asset declaration provisions by Justice Onnoghen have created a palpable and rising distrust of the judiciary by the citizens, a distrust that may be exacerbated by the politicization of the judiciary by politicians across party lines.”

  • Judiciary is in a trying time, by Tanko Muhammad

    • Swears in members of the 2019 Election Petition Tribunals

    The newly inaugurated Acting Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad, observed on yesterday that the country’s Judiciary was currently going through a trying time.

    Muhammad urged all stakeholders, particularly members of the nation’s Judiciary to stand up against destructive forces and protect the honour and integrity of the judicial arm of government.

    He spoke in Abuja on yesterday while administering oath of office on the 250 members of the 2019 Election Petition Tribunals.

    The members were sworn-in in one of the courtrooms of the Supreme Court. The event was Muhammad’s first official assignment since he was sworn-in on Friday by President Muhammadu Buhari, who also suspended the CJN, Justice Walter Onnoghen.

    Onnoghen and about 13 other Justices of the court, except Justice Dauda Sidi Bage, stayed away from the event.

    Muhammad said: “The Judiciary is in a trying time. We must. And, I repeat, we must stand to protect and uphold the integrity of this arm of government.

    If any other person is trying to destroy it, we should try to protect it. If we don’t protect it ourselves, no one else will protect it for us.

    “So therefore, it is our bounding duty to see that we protect the Judiciary wherever you find yourself,” he said.

    To the newly inaugurated chairmen and members of the election tribunals, Muhammad said: “I congratulate you on this appointment. And I urge you to see this assignment as a call to duty and service to our nation.

    “As you have all known, you have taken the oath of office as chairmen and members of election petition tribunals.

    “Permit me to remind you that this oath taking is a solemn appeal to the Almighty God. Therefore, it is to God the Almighty, that you will, ultimately be responsible.

    “It is from this oath the your duties and responsibilities as members and chairmen of the election petition tribunals, in your various places of assignment, spring forth and have a binding effect on each and everyone of you.

    “This is an ethical undertaking, just as we should uphold the rule of law in our various courts and tribunals.

    “As such, I implore you to discharge your onerous duties diligently and with the fear of the Almighty God.

    “I implore you to uphold and enhance the honour and dignity of the Judiciary,” Muhammad said.

    As against the usual practice of the court, only Muhammad and Justice Dauda Sidi Bage, serving Justices of the Supreme Court, were at the event that held for about 30 minutes.

    Other Justices of the court, about 13 of them stayed away. No reason was given for their absence.

    The President of the Court of Appeal, Justice Zainab Bulkachuwa and President of the National Industrial Court of Nigeria (NICN), Justice Babatunde Adjumo were also in attendance.

    The event, witnessed by many, commenced slightly after 2pm and ended before 3pm.

     

  • Does the CJN personify the judiciary?

    The recent purported arraignment of the Chief Justice of Nigeria (CJN) expectedly raised serious controversy among Nigerians. Central to this controversy is the argument that the CJN incarnates or personifies the judiciary; hence he should be accorded the respects and dignity expected of his status. Some, including Professor Ben Nwabueze, a highly respect constitutional law jurist, also go to the extent of saying that there is a limit to equality before the law principle in the constitution so as not to subject the CJN to arraignment in Code of Conduct Tribunal. Against the background, this piece will examine whether the CJN truly incarnates the courts or the judiciary under the Nigerian constitution.

    The main feature of a court in constitutional sense is more determined by its impartiality and independence as well as the procedure for its determinations and proceedings. Attributes of courts are: i] absence of bias i.e. courts should be free from bias of and should be independent of the parties to the dispute and should have no interest in the subject matter of he disputes; ii] its proceedings must be held in open unless as provided by the constitution i.e. in the interest of public safety, public order, public morality; iii.] Parties to the disputes must present their cases; iv.] Facts in issue must be ascertained by means of evidence on oath or affirmation; v.]parties or their counsel must submit arguments on facts with the law; and v.] decisions, disposing the matters after application of the law to the fact as authoritatively found by the courts, must be binding on the parties.

    Clearly, section 6 of the constitution vests judicial powers in ‘the courts’ not in ‘the judges or the Chief Judges or Chief Justice of Nigeria’ as persons as the case may be. It is correct that courts’ power can be exercised by the people who compose it. Nevertheless, there is a considerable difference between a judge in court and a judge outside the court. A judge is the court at the time he is sitting there and he is vested with full authority, dignity, power, and independence of the court. He does not cease to be a judge once he is outside the court. Yet, he occupies a different position and this justifies why non-judicial functions can be vested and it is indeed vested in the individual judges to be performed outside the courts but not in the courts. For instance, judges can conduct public enquiries. The chief judges can be appointed by the Speakers of the Houses of Assembly to chair a seven-man-panel meant to investigate allegations of gross misconduct against governors to be removed from office (section 188, CFRN 1999 as altered). Chief judges as the head of judiciary in the states also have some administrative functions since the judiciary needs to be administered like any other public institutions. They need to attend to the disbursement of staff remuneration, welfare, accommodation, books and so on.

    In the same vein, the constitution vests legislative powers of the federation in the National Assembly which consists of the Senate and a House of Representatives (sections, 4, and 47 of the constitution). Legislative powers are not vested in the Senate President or Speaker of the House of Representatives. They are not also vested in the committees of the National Assembly. This accounts for why the Supreme Court in the AG Bendel vs. AG Federation nullified the Allocation of Revenue etc. Bill of 1981. The constitution clearly separates the Heads of the National Assembly from the institution of the National Assembly by not vesting legislative powers in the persons but the institution of the National Assembly.

    The position of the president under the constitution is totally different. This is because section 5 of the constitution vests executive powers of the federation in the person of the president not in the executive. He can exercise such powers directly or through the vice-president, or ministers or other officers in the service of the government of the federation. This is different from judicial powers that are vested in the courts established for the federation not the Chief Justice of Nigeria. Likewise, as earlier stated, legislative powers are vested in the legislature as an institution not in individual lawmakers.

    The implication of the above is that while it is correct to assert that the president personifies or incarnates the executive and he is vested with executive powers, the same cannot be said that the CJN personifies the judiciary or the courts to enable the constitutional vesting of judicial powers in the CJN. No doubt, he is the head of judiciary and plays enormous constitutional role as the head. Yet, judicial powers are not vested in the CJN. This accounts for why courts’ decisions under section 287 of the constitution bind all authorities and persons in Nigeria, including the CJN.

    Thus, the constitution does not intend the CJN to incarnate the third arm of government. That is why the constitution does not vest judicial power in the CJN but in the courts established for the federation. This position is further fortified by the fact that the CJN does not have any special qualification for his appointment different from the justices of the Supreme Court (section 231 of the constitution). Likewise, the president of the senate does not have any special qualification under the constitution different from the members of the senate. This is because the constitution does not intend the president of the senate to incarnate the National Assembly. However, section 131 of the constitution clearly states the qualification of a president different from other members of the executive. This shows that the president incarnates the executive and the Nigerian Head of State (section 130(2) of the constitution.

    From the foregoing analysis, it can be said that although the CJN is the head of the judiciary, he doesn’t incarnate or personify the courts or the judiciary. The intention of the constitution is not to make the CJN or the president of the senate incarnate the courts or the National Assembly as the case may be. This is the reason why the constitution does not vest the judicial power in the CJN but rather in the courts. The same applies to the president of the senate. More so, the qualification of the CJN is not different from his learned brothers in the Supreme Court. However, the position of the president is different. This is because the executive powers of the federation are vested in him. His qualification is also stated in the constitution different from the ministers. He therefore incarnates or personifies the executive. Thus, the equality before the law principle applies to the three heads of the institutions of government. While the president has immunity from criminal prosecution, the others do not.

     

    • Dr Sambo is of the Faculty of Law, University of Ilorin.

  • Onnoghen: Executive attempting to intimidate Judiciary – NBA

    The Nigerian Bar Association, (NBA) and other lawyers have condemned plans by the Code of Conduct Bureau (CCB), to try the Chief Justice of Nigeria, Justice Walter Onnoghen.

    Onnoghen is set to be arraigned by the bureau at the tribunal on Monday on six counts of alleged false asset declaration at the Code of Conduct Tribunal (CCT) in Abuja.

    A statement issued by the NBA on Sunday in Abuja said the move was an attempt by the executive arm of the government to intimidate the judiciary.

    The statement which was signed by the NBA President, Mr Paul Usoro, condemned the speedy nature of the investigation and trial of Onnoghen, saying the established precedent for such a trial was not followed.

    “If one contemplates the fact that the CCT arraignment is scheduled to take place on Jan.14, we have in total a record number of 3 (three) working days between the receipt and processing of the petition, investigation, preparation of charge and ancillary processes and the arraignment.

    “With such unprecedented speed and efficiency in Nigeria’s criminal justice administration, it is clear that the NJC was not privy to it and did not conduct its mandatorily required disciplinary processes prior to the filing of the charge before the CCT.

    Usoro said it was difficult for a disinterested observer not to see a pattern of consistent assault by agencies of the FGN on the heads of the two independent arms of government.

    On his part, Mr Sebatian Hon, (SAN) said that the haste with which the charge was filed indicated that it was a political witch hunt and not an honest investigation.

    According to Hon, there is an attempt to destroy the judiciary or gag it; and in the latter situation, to hector it into submission.

    “I personally say no to this and all Nigerians must say no to this unprovoked assault on the judiciary.

    “Nothing stops the Federal Government from deferring, in the interest of national peace and cohesion, the filling of those charges till an opportune time since there is no limitation of time in criminal proceedings,” Hon said.

    He counseled the CJN not to heed what he described as the obviously unholy call that he should step aside.

    Similarly, Mr Mike Ozekhome, (SAN) also described the act as an attempt to gag the CJN who was constitutionally empowered to inaugurate the presidential election tribunal, against the 2019 election.

    According to Ozekhome, the trial is undoubtedly politically motivated because as head of the judiciary, the CJN will be the one to empanel the presidential election tribunal that will try cases which emanate from the elections.

    “There are many questions to be asked: When have Nigerian security agencies optimized and displayed such efficiency that a petition by an NGO, dated Jan.7 and received Jan. 9 was acted upon with such automatic alacrity that by Jan. 11, charges have already been filed against Onnoghen.”

    The senior lawyer maintained that the criminal charge filed against the CJN was politically motivated.

    He added that the CJN could be removed from office only where he had been convicted or if under zSection 291 of the Constitution, the senate, by two-third majority vote, affirms a request by the president to remove him. (NAN)

  • Is judiciary ready for 2019 polls?

    In Nigeria, elections usually end at the tribunals. With the general elections around the corner, is the judiciary ready for the disputes which may arise therefrom? ROBERT EGBE asks.

    THE elections will start on February 16 with those of the President and the National Assembly.

    Governorship and State Assembly/Federal Capital Territory (FCT) council elections follow on March 2.

    The presidential contest will pit President Muhammadu Buhari of the All Progressives Congress (APC) against no fewer than 13 other candidates. His main challenger, however, is former Vice President Atiku Abubakar of the People’s Democratic Party (PDP).

    According to analysts, so far, electioneering has been heated, but largely non-violent. They submitted that a credible vote would strengthen democracy.

    But they warned that a tight contest followed by controversial election tribunal rulings could fuel events that would test the country’s stability, especially where such decisions conflict with legal precedents.

    Election-related matters are usually contentious and are often considered and treated by politicians and other stakeholders as do or die.

    To some, the bitter exchanges between party loyalists and claims of fake news and hate speech are signs that the elections will be contentious.

    A January 3 report by Time Magazine listed the polls among the five global elections to watch this year. The others are in India, Israel, Ukraine and the European Union (EU), where parliamentarians would be elected.

    On December 15, the United States Government expressed fear that the elections might be marred by violence.

    It noted, however, that the public disturbance that the elections would cause might not be “large-scale nationwide conflict” but “localised violence.”

    The US Assistant Secretary of State for the Bureau of African Affairs, Tibor Nagy, made this known in his presentation at the US Congress hearing on Nigeria’s forthcoming elections in Washington DC.

    Nagy said: “I can tell you from my impressions during my travels and my previous service in Nigeria that I fear there will be some violence around these elections, as has been the case with previous elections.

    “I do not anticipate large-scale nation-wide conflict, but rather localised violence. We are already seeing increased tensions and polarization as the election approaches.

    “We assess that politicians are turning to narratives of identity politics in an attempt to improve their popularity, with potentially serious consequences for national unity.

    “However, Nigeria’s political system and society have weathered such tensions before.”

    INEC’s alarm

    On January 18, last year, the Independent National Electoral Commission (INEC) Chairman Prof. Mahmood Yakubu said the commission was hamstrung by conflicting court orders.

    He told the Chief Justice Walter Onnoghen that the commission was served with six conflicting judgments and orders from courts of coordinate jurisdiction within a short period of three months in 2016, during the PDP leadership crisis.

    Yakubu said: “Similarly, the commission was confronted by conflicting pronouncements by the lower courts on matters already decided by the superior courts, including the Supreme Court. This is making the work of the commission very difficult and creating unnecessary negative publicity perception for INEC and, I must say, the judiciary as well.”

    INEC’s Director, Legal Services, Mrs. Oluwatoyin Babalola noted several cases where lower courts failed to be bound by decisions of superior courts or their own decisions on similar facts.

    Babalola observed that in Labour Party vs. INEC (2009), the Supreme Court decided that where an election was nullified on the ground that the winner of an election was not qualified to contest the election, the disqualified candidate and the political party that sponsored him are not allowed to participate in the fresh/re-run election.

    But Hassan Abdullahi v. Abdul Ogwu Alhassan, as well as Idoko Moses Ododo v. Oshodi Isaac Ausa, both delivered on January 2, 2016, the Court of Appeal nullified the election of the disqualified candidates and ordered INEC to conduct fresh elections with the same disqualified candidates and their political parties.

    Babalola said: “Where the courts depart from precedents, it creates uncertainty as to the state of the law and consequence of particular conduct. Where courts of coordinate jurisdiction give conflicting decisions/orders, it can lead to disobedience of court orders, cause confusion in the polity and to the Election Management Body.”

    ‘Deluge of litigations’

    According to the Yakubu, INEC has been subjected to more litigations than any public institution.

    He said within two years (2016 and 2017), the commission was involved in 1,134 court cases, comprising 454 outstanding cases and 680 determined cases, arising from the 2015 general elections.

    In the party primaries of the 89 registered political parties contesting next month’s general elections, the commission said 396 petitions are already pending in court.

    At a two-day training workshop for INEC correspondents in Abuja, the INEC chair described the primaries as most acrimonious in the nation’s recent history.

    He said apart from the 396 petitions filed, INEC had also received 302 requests for Certified True Copies (CTCs) of reports of party primaries and copies of personal particulars of candidates.

    Yakubu added: “These requests are obviously a prelude to more court actions. In addition, we have also received 52 petitions and protests from aggrieved party aspirants.”

    Election tribunals

    As in previous elections, the courts, beginning with election tribunals, will play a major role in resolving election disputes.

    Their role is as defined in the Electoral Act, 2010 (As amended), which provides that appeals arising from governorship and presidential elections terminate at the Supreme Court while the National Assembly and state Houses of Assembly appeals also end at the Court of Appeal except where they are pre-election matters.

    Section 134(2) and (3) of the Act provides a 180-day time limit for election petitions to be concluded, while similar provisions are contained in Section 285(6) and (7) of the 1999 Constitution (as amended).

    Section 285(6) reads: “An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”

    Subsection (7) provides: “An appeal from a decision of the election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment.”

    Following the 2015 polls, the judiciary set up 110 Election Petitions Tribunals manned by 255 judges.

    Seven hundred and forty-nine appeals emanated from the tribunals’decisions, while the Abuja division had an additional 75 appeals in the year 2016/2017.

    Seven hundred and thirty of the petitions from the 2015 polls were heard by the Court of Appeal.

    They consisted of 39 governorship elections petitions, 79 Senatorial petitions, 179 House of Representatives and 380 State Houses of Assembly petitions.

    In addition, 32 election petitions were filed in 2016 which included Bayelsa and Edo States and other re-runs, and 21 petitions were filed in 2017, including Anambra State governorship and other reruns.

    Judges’ work suffer for election duties

    Following their appointment to hear election petitions, judges will shoulder these extra duties for almost three months.

    One implication of this is that it might slow work in the judges’ courts, thus swelling backlog of cases.

    This is a cause for concern because in some court jurisdictions across the country, 10 to 15 year-old cases are still on the cause list.

    Nigerian Bar Association (NBA) President Paul Usoro (SAN) noted this last September 24 at a special Supreme Court session to mark the beginning of the 2018/2019 legal year.

    He said apart from the expected election-related appeals. “There is still a huge backlog of appeals, mostly civil appeals that are pending before Your Lordships. We note with deep appreciation, Your Lordships’ efforts, notably in the last Legal Year, to clear the deck of these backlog of matters. But then, the pile still remains.

    “We know that there are still appeals pending before Your Lordships that were filed in 2003, 2004, 2005, 2006 – appeals that remain outstanding for more than 10 years. When this time-span is added to the time span that it takes for the appeals to journey from courts of first instance to Your Lordships, then the delays in our judicial process becomes quite pronounced, frightening and discouraging not only to litigants but also to the Bar and other stakeholders in the justice administration sub-sector.”

    What should the judiciary do?

    Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, the NBA and other members of the Bar have suggested ways to help the judiciary better cope with elections fallout, backlog of cases and judicial delays.

    The CJN also recently met with the Independent National Electoral Commission (INEC) Chairman, Prof Mahmoud Yakubu, where he assured him that the appellate system of the judiciary will serve to correct anomalies created by lower courts in election petitions.

    According to him, conflicting court orders were bound to arise as a result of multiple court cases filed by politicians at different courts, which were bound to have different facts and interpretations by judges.

    ‘Judges must stick to judicial precedents’

    The CJN also warned judicial officers against giving decisions on election petitions that conflict with legal precedents.

    Justice Onnoghen, who spoke at a recent training for justices of the Court of Appeal, said judges must stick to the principle of stare decisis, i.e. the legal principle of determining points in litigation according to precedent.

    The CJN noted that there is a need for re-orientation of judges’ attitudes towards their obligation to stare decisis, “thereby creating a legal environment built on certainty of the law’’.

    He added: “On judicial precedents as it relates to election and pre-election matters, I want to remind us that the Supreme Court has decided in a number of cases that the principles of judicial review, such as Mandamus, Certiorari, Prohibition, etc, do not apply because election and election related matters, such as pre-election causes are suis generis (of its own kind).”

    ‘Professionalism, integrity required’

    According to the NBA, judges must maintain standards of professionalism, if the judiciary is to successfully weather the coming electoral storm.

    Usoro noted that judicial pronouncements in contentious and difficult political appeals “in no small way worked to maintain the peace and cement the unity and indivisibility of Nigeria, our great country’’.

    “Riots, unrests and political chaos in different parts of our Federation have been averted consequent upon Your Lordships’ decisions and pronouncements in some of these matters.”

    “These are very weighty responsibilities and functions which Your Lordships continue to carry out and fulfill selflessly and without any self-adulation or self- exaltation’’.

    According to him, the Bar and other Nigerians “expect Your Lordships to maintain, in the coming National Election season, the standards of decorum, professionalism, discipline and integrity that have always been the hallmark of Your Lordships and also ensure that those standards percolate to and are fully and strictly replicated by Their Lordships of the lower courts’’.

    Usoro advised: “Any judicial officer that is found wanting in that regard, we respectfully posit, must be swiftly and decisively punished and routed out from the pack of judicial officers.”

    ‘Prioritise digitalisation’

    Prof. Yemi Akinseye-George (SAN) urged the National Judicial Council (NJC) to prioritise the digitalisation of courts to reduce delays.

    “Court digitalisation must be a matter of priority. Locally developed software for e-recording of courts should be deployed. This will enhance speedy dispensation of justice as judges can have access to e-recorded proceedings both audio and video.

    “It will also help to address the problem associated with de-novo (repeat) trials following transfer of judges, death, promotion or retirement,” Akinseye-George said.