Beyond CJN Onnoghen By Abdu Rafiu

 

For those who are conscious of the loftiness of the Office of the Chief Justice, the victory of the Hon. Justice Walter Samuel Onnoghen at the Court of Appeal is cause to heave a sigh of relief, indeed for rejoicing. It was release from the entrapment and weight of dross that had settled on the nation’s soul for nearly five years. I was convinced the trial of Chief Justice Onnoghen was ill-motivated and the judgment perverse. In most countries of the civilized and free world, the Office of a Chief Justice is by far more hallowed than that of a President. The reason is not far to seek. The hallowed chamber of a Chief Justice is indeed one that is rarely discussed and when it is done, it is in whispers! It is an office that is approached with trepidation and in awe. A President is a politician and is exposed. While a President is heard and seen, a Chief Justice must necessarily be an introvert of a sort, heard but not seen—and when heard, only sparingly. What could be a more apt picture to prove this than that painted by General Yakubu Gowon, then the Head of State? It was at an event in Lagos chaired by the then Chief Justice of Nigeria, Dr. Teslim Elias. You can trust the General to draw effortlessly from his armoury of humour. Explaining why he arrived early for the programme, the Head of State said he did not want to be charged with the contempt of court with Justice Elias already seated!!

As I did promise last week, following is one of two articles I wrote in January, 2019, on the trial of the then Chief Justice Walter Onnoghen:
It is in the nature of Nigerian politics that when elections draw close and the contending parties seem equally matched, we begin to witness strange developments. The most dramatic and alarming has to do with charges bordering on assets declaration by Walter Samuel Onnoghen, the Chief Justice of Nigeria. The six-count charge is in public domain. Lawyers have been engaging themselves as they are wont to do in brickbats even before they get to court in their wig and gown, predictably because of the personality and the office involved, and evidently because it is suspected the charges have political undertones—at this late hour. Look at the speed. An attempt was made on Thursday, 09 January, to serve the CJN court papers. He was expected to have studied them and filed his reply the following day, that is by Friday, 10 January, and by Monday, 14 January he was expected to report at the Code of Conduct Tribunal to stand trial and answer to allegations against him by the Code of Conduct Bureau. That is the Chief Justice being treated this way, like a common felon.

Justice Onnoghen was confronted with the charges 36 days to the country’s most crucial elections, the Presidential and National Assembly polls. As I write, the election is only 28 days away. We do not know how the election will go. If it is disputed the CJN will have a pivotal adjudicatory role. When the trial begins at the Code of Conduct Bureau Tribunal, being on trial, the Chief Justice will be required to recuse himself—recuse, a word strange to our lexicon but today made popular and forced into our consciousness by erstwhile dumped Donald Trump’s Attorney-General, Sessions. How anyone expects political meaning will not be read into the move against the Chief Justice beats me hollow. Professor Itse Sagay is right in saying that no one is above the Law. But while that is true what could lend itself to an embarrassment is when and how the forces of the Law are deployed against a Chief Justice, the Chief Justice of Nigeria. The Chief Justice is the chief priest in our Temple of Justice. He is the embodiment of justice and our judicial system. He is chairman of the National Judicial Council and also of the Federal Judicial Service Commission. In these roles he is the face and head of the third arm of the government. In these onerous and sacred responsibilities he is expected to, like Caesar’s wife, be above board. What a Temple connotes is a certain sacredness and sanctuary that bows the spirit.

What happens if the CJN is found not to be above board and unworthy of his high office will necessarily agitate our minds. I will come to this presently.
To begin with, what does the law say? Lawyers are in their elements in matters of this nature, displaying not just knowledge of the law, but skills in the elucidation of the light the law is supposed to beam to the dark recesses of living. And they are at it in the court of public opinion.
“Subject to the provisions of this Constitution”, the Law reads, “every public officer shall within three months after coming into force of this Code of Conduct or immediately after taking office and thereafter:
a). at the end of every four years, and
b). at the end of his term of office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets and liabilities and those of his unmarried children under the age of 18.

“Any statement in such declaration that is found to be false by any authority or person authorized in that behalf to verify it shall be deemed to be breach of this code.’’

A powerful team of 47 senior lawyers have lined up and, indeed, announced their presence to defend the Chief Justice. They are joined by 43 other lawyers who consider themselves up to the task. Their first task is to establish that the Tribunal has no jurisdiction to try a judicial officer without the complaints against him being first examined by the National Judicial Council which can then recommend him to a court or as in this case of assets declaration, to the tribunal established for the purpose. This is also the position of the distinguished lawyer, Aare Afe Babalola. I believe this is to protect the independence of the judiciary as the third arm of the government. If it were not so, an Administration such as Buhari’s which is irritated by the Israelite’s journey of the rule of law in the courts and has complained loudly about its frustration, would have overrun the Judiciary and dealt with matters with great haste and alacrity.

Babalola had this to say: “No country, no matter how well intentioned its political leaders are, can aspire to greatness if its judicial arm is denigrated and held in contempt. While the Judiciary itself must be awake to its huge responsibilities, its efforts in this regard will not be helped by the erosion of its independence. I am of the view that the constitution requires that any infraction by the said judges be firstly investigated and resolved by the National Judicial council to the exclusion of any other body or authority.”

There is, however, another set of lawyers who believe that the Chief Justice is not among public officers covered by immunity. They do not see it as an assault on the Judiciary the way their national association, NBA, is viewing it. It is tempting to ask: “Did the CJN breach the code of conduct or not especially in view of the seriousness of the charges against him?” That is precisely, without conceding the particulars of the charges, what his lawyers are saying, especial without going through the laid down process of the matter first being examined by the National Judicial Council.

The assets in terms of bank lodgments in local and foreign figures in the public domain are incredible. Whether the lodgments are true or false is another kettle of fish. The Chief Justice cannot be unaccustomed to banking rules and sanctions that make it mandatory for banks to report to authority lodgments in excess of a given amount by individuals and companies, rules for financial houses in all countries of the free world. The CJN would know if lodgments into his account were being monitored. If they were true, he would have played into the hands of Buhari’s boys who would be elated to feed our huge appetite we are wont to display for scandals.

Declaration of assets and properties by the CJN is by virtue of his being a judicial officer. This means that although he may not be covered by immunity as a public officer, being a judicial officer makes all the difference. The due process laid down in the constitution for a judicial officer stipulates that his case should first be heard by the National Judicial Council. This exempts him from going straight to the Code of Conduct Tribunal as the court of first instance.

The second point is, what will the spectacle be like seeing the Chief Justice in the court facing criminal charges? The ugliness of such a scenario would be unprecedented and matchless. Just for minute, consider the picture that would flow before the eyes is a Chief Justice in his full regalia, the dignity and power invested in that office standing in the dock! And this is the officer of the law being dragged to stand in the dock and before a junior judge.

It is not without foundation that justices are addressed as lords. It is because it is only justices that have the power of life and death over their fellow human beings. In that office, when they mount the throne, they are assumed to be half a step higher than their fellow men. They are an embodiment of the Law and Justice. And wisdom! These are precipitations of attributes of the higher Laws that govern the entire universe, indeed the whole of Creation. Certainly, the humiliation of a Chief Justice no matter the degree of moral deficit is not just a humiliation of the Judiciary, but of the whole country. Assuming, without conceding, that the charges are true, the question that would arise is: Was due diligence as well as exhaustive background and security checks not carried out before Justice Onnoghen was appointed the Chief Justice of Nigeria?

In my view, since trial of a criminal offence is not statute barred, moving against Justice Onnoghen should have waited until his retirement which is only two years away. By that time, another Chief Justice would have been in the saddle to hold and brandish the sanctity of the office before our gaze and consciousness.
As I reflected more deeply on this event, however, I asked myself how some other person in the Villa, say Obasanjo, for example, would have handled this situation so that unintended grave damage would not be done to the judiciary and the image of the country. What scenario would have played out? This is assuming again that the charges are unassailably true, and I am not saying they are. Armed with the report, Obj would have gone to meet the Chief Justice in his home in the dead of the night, say 2 a.m. After pleasantries and getting his host relaxed with jokes and humour, and perhaps some comestibles, he would bring out a copy of the document and ask the CJN to confirm the highly explosive and confidential report he had with him. Upon confirmation Obj would suggest to him to consider tendering a letter of resignation in view of the effects the report going out would have before the public and the international community. He would say to him that if he did not mind, he might wish to see a draft resignation letter he already brought with him for the CJN. All Onnoghen would need to do would simply be to sign it. Reason for the resignation: On health grounds.

Both would agree to keep their meeting and agreement exceedingly confidential, completely away from the prying eye of the Press. That would be the first visit. On the second visit, Obasanjo would go with Hon. Justice Uwais, a highly revered former CJN and Afe Babalola whom he admires and trusts a lot, to negotiate certain terms of disengagement. The third step Obj would take is after six months or so, he would appoint Hon. Justice Onnoghen an ambassador to Tunisia!
The trial of Chief Justice Walter Samuel Onnoghen will diminish us all. The able lawyers must deploy their knowledge of laws and their skills to ensure that the CJN does not go into the dock. What is at stake is beyond the denigration of a Chief Justice, but the humiliation of the Nigerian Judiciary and the nation as a whole.

First published on 17 January, 2019

The Guardian