Before Onnoghen resigns

NO issue has so divided Nigerians this year as the suspension two Fridays ago of the Chief Justice of Nigeria, Walter Onnoghen, by President Muhammadu Buhari acting on a spurious and untenable ex parte order by the Code of conduct Tribunal (CCT). While the controversy was still raging about the propriety of the suspension of a head of an arm of government by the head of another arm of government, and many legal minds were still queasy about the abridgement of the process used in carrying out the disciplinary measure, speculations became rife that the government and the Nigeria Bar Association (NBA) were meeting minds to find a win-win way out of the legal and constitutional quagmire. They are very ambitious. This newspaper’s report on the meeting, though yet to be confirmed by the NBA, suggests that the win-win solution involves finding a soft landing for Justice Onnoghen. According to the report, the CJN will resign or retire, since all the government appears to desire is his exit, and the government, which is used interchangeably with the Code of Conduct Bureau (CCB), will withdraw all charges against him.

With the refusal of the Court of Appeal to halt the Code of Conduct (CCT) trial of the CJN, a decision they gave late last week, the so-called win-win solution being cobbled together by the NBA and government negotiators may have acquired strident urgency. If Justice Onnoghen, the highest ranking judicial officer in Nigeria, is to stave off the ultimate indignity of being put in the dock by a junior court, not even a court of superior record, it is hard to see him not falling on his sword. Indeed, before this newspaper’s report was published, and in many circles around the country, the resignation of the CJN was thought to be a foregone conclusion. Those who seemed to support him, but in reality advocated due process, hoped he would stay on long enough to test the discipline of the judicial process and the validity and application of a number of rulings in similar or tangential cases. From all indications, they are unlikely to get their wishes.

To Justice Onnoghen, each day is like a 1,000 years. His trial is expected to be restarted on Monday. It is doubtful whether the framers of the constitution envisaged that awkward and humiliating position the CJN has found himself. But whether they envisaged it or not, no one can pretend not to appreciate the consequences that arraignment would bring upon the independence of the judiciary, the doctrine of the separation of powers, the subtle power grab by the executive, and the future of democracy and the rule of law. Nigerians may of course pretend not to appreciate these dangers, or they may even attempt to downplay the significance and consequences of the CJN’s arraignment, but without doubt, sometime in the future, the chickens will come home to roost.

Yesterday, there were also reports that Justice Onnoghen’s counsels were engaged in a last-minute effort with members of the executive arm to stave off the humiliating arraignment. It is not clear whether they will succeed; but for a presidency that has postured monarchically like its predecessors, there is no judicial sleight of hand they cannot conjure. If the NBA representatives are to get their wish, they must hope that they can stomach the cost of indirectly subverting due process and the rule of law, for the cost would be punitive. If they do not succeed in staving off the arraignment, the situation will get more sordid. For, as it is, the CJN and his counsels, and the NBA representatives and perhaps other goody two-shoes, have their backs to the wall. Indeed, they have been boxed to a corner. Some see the developing situation as a triumph for the anti-corruption war; but others see it as a humiliation for the rule of law and the constitution. Perhaps there are elements of both. What is at play, as a matter of fact, is a race for time. The government is not sure that all things considered, should the trial proceed, it can ensure a judicial victory for its position. On the other hand, in the short run, the CJN is hopeless and helpless to avoid arraignment, even though it is not mandatory for him to appear in person on Monday when the CCT restarts the trial.

Whether they can get the win-win solution they all desire or the CJN would throw in the towel, nothing will ever remain the same again. Without prejudice to what the law says, the position of the CJN is obviously no longer tenable. He will leave office, even if how he does that may not be immediately clear. It is also unlikely that the acting CJN, Tanko Muhammad, and the CCT chairman, Danladi Umar, would both survive the punishing gale being inadvertently unleashed without consideration for the aftershocks. More, those who seemed to support Justice Onnoghen may have already failed in forcing an adherence to due process. And those who advocate the independence of institutions to make them run in a way that reinforces the rule of law and help strengthen the system and entrench democracy appear to be headed for a major collapse. Nigerians have not been exactly rational and dispassionate in their appreciation of the issues at stake, particularly the wider tangential but no less crucial issues of constitutional checks and balances. In fact, they may be sleepwalking into a future blowup.

The NBA and the government meeting of last week reportedly considered, as part of the solution, the resignation of the CJN and the dropping of all charges against him. The meeting probably misunderstands those who, like this column, argue that the government had behaved malevolently and unconstitutionally in generating and managing the controversy. No one has seriously suggested that the CJN does not have a case to answer, or that he is above the law. But by seeking a shocking and disingenuous compromise, the NBA has demonstrated a lack of courage, and the government has also indicated that it has really never been fired by altruistic considerations in its anti-graft war. It is important for the CJN to have his day in court to convince everyone that the system possesses enough shock absorbers to ensure that unlawful acts or destabilising activities can be managed, and that the country can work well without puppeteers controlling affairs behind cynical, steel doors. But more importantly, it is indispensable that the laid-down procedure for bringing the CJN to trial must not be abridged or short-circuited. The end does not justify the means, for if a system is to endure, if democracy is to be firmly rooted, the end result must be considered to be as important as the process.

By coaxing a deal that precludes the trial of the CJN, the system is not well served at all. If the government and its supporters do not understand this, then they can never understand anything. For the umpteenth time, let it be restated that no one is saying the CJN is above the law, or that his financial affairs do not raise eyebrows. However, by brusquely tampering with the system, a culture idiosyncratic with President Buhari whose capacity for deep reflection has been frequently tested and faulted, the government has done more harm than it imagines. Even more appalling is the coordinated media trial it has subjected its quarries to. The government first released the CJN’s asset declaration forms to stooges; then it disclosed the CJN’s financial affairs to the press provocatively and destructively piecemeal; and finally it arm-twisted both the CCB and CCT into assuming powers neither the constitution nor the law gave them.

The constitution and the laws of Nigeria assume that there will always be infractions. Consequently, there are provisions for dealing with the problem. It must never be suggested that anyone who complains against the government’s peremptoriness in dealing with high-profile suspects are wrong to overlook the presumed guilt of the offenders. In the case of the CJN, not only did the presidency behave most irresponsibly in the sloppy manner it has handled it, but noting the lack of critical thinking in the public, it also presented the case against him as if he was already pronounced guilty. Most commentators thereafter proceeded from the point of view of the CJN’s financial dealings, particularly the bank lodgements and his forgetfulness, to skewer him and condemn him. This issue may still boomerang in the near future.

Nigerians have unwisely embraced President Buhari’s inoperable approach to the anti-graft war. He had proceeded from the quaint mindset, probably influenced by his many electoral losses between 2003 and 2011, that the judiciary was irredeemably corrupt, yet he has neither propounded a single fundamental reform of the law nor taken any meaningful step to systematise the war against corruption. Lacking a scientific approach, the president has thus wrapped the war with emotions and, like caviar to the general, instigated the public to engage in constant judicial lynching. But the main problem is that even if the president were to be enterprising enough to propose a coherent and scientific body of judicial and legal reforms, and if he were to be capable of eschewing selfish interest in his many stillborn battles to sanitise the system, he would still be unable to achieve success. The reasons are clear.

No thoughtful legal expert or analyst, after considering the written responses of the justices whose residences were raided by the Department of State Service (DSS) in October 2016, will not be astounded by the justices’ less than sterling written responses challenging the legality of the raids. If at the highest level of the judiciary, as the CJN has himself sadly indicated, so much mediocrity can be exhibited, where the gravitas and ethical profundity that accompany jurists are lacking, how can anyone expect justice, let alone inspiring ones, from those desecrated chambers? The appointment, promotion and discipline of judges and other judicial officers have been compromised and politicised, and mostly the wrong jurists have often been appointed to the bench. Very little profundity comes from the bench in recent years, and judges of poor character and learning have populated and overwhelmed the judiciary. Even the award of Senior Advocates of Nigeria (SAN) has also been deeply politicised and polluted by a system that operates like a camorra. President Buhari has proffered no single thought on these problems and does not seem to notice the lack of profundity in many of today’s judges, nor does he understand the demands and nuances of jurisprudence as a national leader should. Why would there not be a huge problem?

The urgent challenge today is to identify persons and organs who can initiate the fundamental reforms needed to salvage the judiciary. The government is more reactive and censorious than it values championing needed reforms through the legislature. The NJC itself has proved over the years to be too incompetent and slothful to inspire the changes sorely needed, especially in terms of firming up and quickening that institution’s disciplinary procedure, a disciplinary regime capable of deterring judicial malfeasance or adequately punishing misconduct within the ambits of the law. It is not everyone that becomes a judge that must be promoted beyond his capacity simply because it is administratively sensible; and it is not everyone trained in law that qualifies to be a judge simply because he has the right connections. Clearly, the judiciary needs a saviour, or a group of saviours. The challenge is to find those saviours, and nudge them to promote the necessary changes without damaging or weakening the judicial arm of government. The Buhari government is too partial, too schizoid, and too insular to be of any help.

More crucially, it must be patently clear to nearly everyone by now that the judiciary is not insulated, and cannot be isolated, from the rest of the society. With the appalling funding of the sector as recorded over the years, not to say the deliberate infiltration of the judicial arm by governments who have failed to grasp the overarching goals of a great and lofty judiciary, it is hard to see the requisite changes manifesting in the years to come. The disease afflicting the sector has metastasised, and it remains to be seen how it will be prudently managed. In addition, with a jaded and unworkable national structure, a misshapen national identity, and a crooked reward system, the judiciary will continue to fare badly until there is a massive restructuring of the federation to staff the country’s leadership with brilliant and forward-looking patriots. Hard as he may give the impression, President Buhari does not meet the expectation of nationalists, and, what is worse, none beside him fits the bill of a brilliant change agent.

In a system rotten to the core, it is futile singling out the judiciary for a general and fundamental makeover. It won’t work. The judiciary may be lost, though not irretrievably, but so are the presidency, legislature, and a critical public quite unable to take the log from their own eyes before deigning to remove the speck from other people’s eyes. It is sad that the Buhari presidency has pulled the wool over the eyes of the people, baiting them with a judicial crisis that masks its own incompetence and egocentrism; there is no telling where the monster they have unleashed will berth. But it is at least helpful that regardless of their ulterior motives, they have helped shine the light on a crooked part of the system that once was the pride of black Africa.