Constitutional Crisis and Opportunity

Neither Onnoghen nor Mohammed

There is always an opportunity in every crisis. A crisis of opportunity is often worse than the opportunity of crisis itself. As we predicted in this column a fortnight ago, a judicial snafu has now snowballed into a full blown constitutional crisis with the three arms of government in open confrontation even as their hierarchs work at hostile cross purposes.

In the long and tortured history of the country, the executive has occasionally been at daggers drawn with the legislature even where the ruling party holds the majority, and the judiciary has occasionally double-crossed the executive even as it came under its despotic hammer. But this is the first time in the chequered history of the nation that all three are openly embroiled in an asymmetrical political warfare which can only end in the mutual ruination of all and —God forbids—the Fourth Republic itself.

And this coming barely a fortnight to a make or mar presidential election. The omens could not be more dire for the nation. It is time for the few remaining Nigerian patriots to put on their thinking cap about how to rescue the nation from a constitutional quagmire inflicted on it by elite perfidy.

The legal profession which could have acted as a moderating and modulating influence on the three arms of government appears to have lost its old sheen and sinews, split down the line and polarized along ethnic, political and cultural lines. Civil society is weak and enfeebled.

The old Nigerian civil society which reached the zenith of its glory during the struggle against autocratic military rule may be gone forever. Only a deeper and stronger civil society can call to the deep state. There are many reasons for this development, one of which may well be the transformation of civil society itself along class lines. But this is not the place for this.

In the event, everybody is behaving badly. The judiciary is clutching at straw and resorting to empty legal technicalities. The legislature, having threatened fire and brimstone, simply fled to its rat hole. They have not been missed by anybody.

The executive is in execrable haste to nail its perceived judicial adversary and has resorted to self-help and political desperation reeking of authoritarian distemper. If he is returned to office, General Buhari must be persuaded by his handlers to tone down his self-righteous truculence and obstinate inflexibility particularly when they do not conduce to national cohesion.

Let us begin to pick our way through the legal and judicial landmines. Given the enormity of the allegations against him, the weighty severity of the indictment and his own scandalous self-indictment obtained without duress or arm twisting, it is hard to see how Justice Walter Onnoghen can remain or reclaim his seat as the judicial helmsman of the nation.

But given the shady circumstances of Justice Tanko Mohammed’s ascension to the judicial throne, the government obvious resort to self –help and murky highhandedness, it is also hard to see how the learned jurist can garner enough legitimacy and authority to function unimpaired and unimpeded by legal hostilities as well political disapproval from many quarters.

Power pragmatists may argue that this does not really matter since occupancy is seventy per cent possession. But they will soon realize that in a fractious multi-ethnic nation, mere occupancy of the seat of Chief Justice does not confer automatic legitimacy or the sacred aura of righteousness and rectitude required for secular authority.

An example of the combustive religious framing of the judicial crisis is the statement credited to a Christian  forum led by the normally taciturn and reticent General  T.Y Danjuma which alleged that the Onnoghen saga is a manifestation of religious  warfare perpetrated against Christians by Islamic adherents. The statement has attracted an equally strong response from appropriate quarters.

As it is at the moment, the nation is saddled with two critically impaired judicial juggernauts, the one a mortally wounded suspended Chief Justice on life support at the emergency ward, the other a fundamentally hobbled acting Chief Justice battling for life in the incubator reserved for premature babies. Neither has a fighting chance of survival except we want to further complicate the National Question.

Justice Walter Onnoghen has become a judicial corpse openly decomposing before a dazed and disturbed nation. Having spurned all quiet attempts to make him throw in the towel in a honourable manner and with the last shred of his tattered integrity, he has resorted to an outlandish abuse of the judicial process and an abasement of the very profession that he owes so much.

This is the story of the contemporary Nigerian elite. But if a corpse is not buried as a gesture of goodwill to its relations, it will have to be disposed of as a precautionary measure against further public health hazards.

Once Walter Onnoghen goes, so must his putative successor, Tanko Mohammed, who has allowed himself to be sworn in in controversial circumstances and in a manner that is an affront to the constitutional integrity of the nation. There must be no equivocation or quibbling about this if the nation is to avoid an ethnic and religious maelstrom in the coming months.

This may well be a case of honourable misjudgement and as a sweetener, Justice Tanko Mohammed must be allowed to retain the privileges and perquisites of office as a former Chief Justice of Nigeria. Whether by presidential fiat or executive diktat, there can be no denying that he has served as the Chief helmsman of the nation’s judiciary. These are the indignities that a society in the process of transiting from authoritarian rule to viable democracy has to put up with.

In searching for the next substantive Chief Justice of Nigeria, the authorities must cast their net far and wide and well beyond the confines of the current Supreme Court. The Supreme Court, as currently constituted, is too traumatized and enfeebled by internal contradictions and sundry shenanigans to provide judicial leadership for the nation. It should be spared further indignities and humiliation. The situation is so terrible that any attempt to propose any of its current leading lights as Chief Justice is likely to provoke a rash of petitions in a matter of days.

These trying times should be seen as a period of emergency for the Nigerian judiciary. But as we have noted in the opening paragraph, there is opportunity in every crisis. This is the time to push for the kind of radical innovation which led to the emergence of the distinguished jurist and outstanding legal scholar, Teslim Olawale Elias, as the Chief Justice of Nigeria after the retirement of the incumbent in 1972.

It is possible to ride roughshod over the feelings of an injured and traumatized people in the short run but not in the long run. This is not the time for presidential obstinacy and truculence which affront national cohesion and ethnic harmony. The judicial imbroglio is merely the tip of the iceberg of a profound crisis of the post-colonial state and the nation-state itself. The subsisting impasse is not about to go away.