How to save judiciary, by democratic lawyers

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The National Association of Democratic Lawyers (NADL), in this piece, charts the way forward for the judiciary.

The National Association of Democratic Lawyers (NADL), a body of lawyers, being a major stakeholders in the justice administration sector and in the operation of the rule of law in Nigeria, has good reasons to critique the ongoing processes embarked upon to straighten the ethical bearings of the Nigerian Judiciary, and offer suggestions on the way forward.

The NADL disagrees with the filing of charges against the suspended Chief Justice of Nigeria, Hon. Justice W.S.N Onnoghen by the CCB before the CCT. In Nganjiwa v F.RN, 2018, 4NWLR, Part 1609, 301 at 341 and 349, the Court of Appeal ( Lagos Division) had held that before a judicial officer in Nigeria who is accused of an act of misconduct which may constitute a criminal offence could be investigated, prosecuted and tried in a court of law in Nigeria, the judicial officer so accused first must have been subjected to the administrative disciplinary jurisdiction of the NJC ( under Sections 153 and 158 of the Constitution, and Part 1 , Paragraphs 20 and 21 of the Third Schedule to the Constitution ) , and removed from office, and stripped of his judgeship. The Judgment, in the view of the NADL is a protectionist judgment, calculated to grant judicial officers a cloak of immunity, similar to the executive immunity granted under Section 308 of the Constitution, thereby shielding judicial officers from criminal investigations of prosecutions. In spite of the fundamental objections of NADL to the judgment of that Court of Appeal, now on appeal at the Supreme Court, every authority and person in Nigeria is bound by that Judgment. For this sole reason, therefore, the CCT charges against Hon. W.S.N Onnoghen ought not to have been filed. The NADL, therefore, continues to call for the withdrawal of the charges.

However, since the charges nevertheless had been filed, the NADL expected both the Federal Government of Nigeria (the Executive Branch of Government of the Federation) and Hon. Justice W.S.N Onnoghen to shun abuse of court processes and abuse of powers in prosecuting and defending the charges at the CCT, the judgment of which is appealable to the Court of Appeal. Thus, the desperate resort to the National Industrial Court and the Federal High Court by the CJN, his allies and lawyers to obtain ex-parte orders of injunction, which were procured and granted with astounding and unusual alacrity to gag the CCT, so as to prevent the arraignment and trial of CJN Onnoghen, is condemnable. It is an abuse of court process. The NADL hopes that at the appropriate time, the NJC shall revisit the actions of the Judges who granted these orders.

In this connection, the NADL finds as bizarre the order ex-parte that was said to have been obtained on the 23rd of January, 2019 by the Executive Branch of Government (the CCB and their lawyers), mandating the President to suspend the already charged but yet to be arraigned CJN Onnoghen, from office, pending the conclusion of his trial, and his immediate replacement, in an acting capacity, by the most senior justice of the Supreme Court, next to CJN Onnoghen. The CCT had a hearing on the matter on the 22nd of January, 2019, when a motion on notice praying for the same orders purportedly sought and granted ex-parte was adjourned with the entire proceedings to 28th January, 2019. It was, therefore, odd that in the intervening period, a motion ex parte was granted and an order was given, which the President claimed he relied upon to take his decision suspending Onnoghen, CJN and appointing an acting replacement for him.

The NADL condemns the suspension of CJN Onnoghen from office, and his replacement, as aforesaid by the President of Nigeria, Muhammadu Buhari. Under Section 292 of the Constitution, judicial officers, including the suspended CJN, have security of tenure, which guarantees that they can only be removed or suspended from office in accordance with the dictates of the Constitution. The NADL, therefore, calls for the rescission of the decision of the President, suspending CJN Onnoghen, and replacing him with an acting CJN.

The NADL also expresses serious reservation about the hasty disposition of Hon. Justice I T. Muhammed, Acting CJN in accepting to be appointed and sworn in as Acting CJN, when judges of the lower bench who in the past had demonstrated that grave error of judgment or seeming unbridled ambition had, in the past, been visited with career terminal sanctions by the NJC.

The NADL blames the suspended CJN Onnoghen for frustrating the holding of the 88th Statutory Meeting of the NJC on the 15th January, 2019, a day after 14th January, 2019, when the CJN Onnoghen was scheduled to be arraigned in Court, by an inexplicable indefinite postponement. By that heedless postponement, the NJC was denied of the earliest opportunity it could have had to discuss the CJN’s code of conduct challenges, and charges that were filed against him. If that meeting had held, perhaps, the NJC, based on the I.N. Okoro, J.S.C   and N.S, Ngwuta, J.S.C precedents, could have placed Hon. Justice W.S.N Onnoghen, on suspension, for undergoing a quasi-criminal trial, like an interdiction in the public service. NADL assumes that the said postponement must have goaded a restive Executive Branch of Government into reaching for the misguided suspension of the CJN on Friday, the 25th of January, 2019.

Following the realisation that there was fire on the mountain of the Nigerian Judiciary, the NJC, which was prevented from having a meeting on the 15th January, 2019, had to meet on Tuesday, 29th January, 2019 , by requisition. The meeting, from which suspended CJN W.S.N Onnoghen and Acting CJN I T Muhammed recused themselves, and which was chaired by Rtd. Hon. Justice Umaru Abdullahi, PCA, decided, amongst other resolutions, to query both CJN W.S.N Onnoghen and Acting CJN I T Muhammed regarding the petitions submitted against them; one petition against the CJN regarding the code of conduct infractions, and two against the Acting CJN regarding his presenting himself for appointment and swearing in by the President, upon the suspension of the CJN by the President. Both of them were given seven days (an abridgment of time from the regular fourteen (14) days query answering period ] to answer the queries, to enable the NJC determine the matters on the 11th February, 2019.

While the NADL commends the NJC for eventually taking charge of the damaging allegations against the suspended CJN, the NADL has serious reservations about the patent lack of exhibition of urgency by the NJC in the consideration and resolution of the crisis. The Judiciary in Nigeria today is in a state of emergency. The NJC and its members would not have sacrificed too much for Nigeria and the Judiciary, if it had elongated its sitting, accelerated its proceedings and conducted an expedited hearing and fast track determination of the petitions. The petitions could have been reacted to in one day, the focal issues being whether the suspended CJN fully and faithfully declared his assets, and if not why; and whether the Acting CJN offered himself for appointment, and if so why? . Thus, a verdict in the form of recommendations to the Executive Branch of Government (the President) could have been rendered in three  days. By extending the petitions resolution period, the NJC, wittingly or unwittingly, is elongating the nightmare of the legal profession community in Nigeria and the people of Nigeria. The adjournment of the NJC Meeting to 11th February, 2019, four days to the conduct of the Presidential and National Assembly Elections will further generate an avoidable state of paralysis, uncertainty and acrimony in the Judiciary, in the legal profession and in the polity.

The NADL condemns the leadership of the Nigerian Bar Association for its handling of the CJN Onnoghen charge and suspension issue. In its statements, pronouncements and resolutions, the NBA Leadership has restricted itself to flaying the action of the Executive Branch of Government, mouthing hackneyed phrases about rule of law, due process, independence of the judiciary, separation of powers and adherence to constitutional principles, without paying equal attention to ethical demands in a legal profession that prides itself as honourable, and giving necessary attention to the issue of integrity and credibility in the Judiciary and how to effectively combat cases of corrupt practices in the legal profession, Bar and Bench. By this lopsided disposition, the NBA Leadership has helped in portraying Nigerian lawyers as supporters of infamous conduct in the Judiciary, before the Nigerian people, especially non-members of the legal profession.

The NADL commends the Court of Appeal, Abuja Division, for striking out, on Wednesday the 30th of January, 2019 the appellate request for stay of proceedings of the CCT, made by CJN Onnoghen, in affirmation of the inviolability of Section 306 of the Administration of the Criminal Justice Act, which prohibits stay of criminal proceedings; and in obedience to and  fidelity with the decision of the Supreme Court in Olisa Metuh v. FRN, 2017, 11 NWLR, Pt. 1575, 157,

The NADL calls on political power holders and interest groups to refrain from further politicising the current crisis in the Judiciary. The current “clash of power” is between the Executive Branch of Government and the Head of the Judiciary. It is not a clash of power with the entire Nigerian Judiciary. Even if it was assumed that it was a clash of power between the Executive and the Judiciary, the Legislature is not, at this stage, involved in the dispute to warrant the rumoured bid of the Senate or National Assembly to trigger the original jurisdiction of the Supreme Court under Section 232 of the Constitution, by filing an action in the Supreme Court of Nigeria. Bringing an action between the National Assembly or Senate, under contemplation, to the same Judiciary will mean that the three arms of government will be entangled in a suit, the outcome and dimension of which may be unpredictable. To be clear, there is no cause of action between the Senate and the President on the CJN Onnoghen issue yet, as the Senate is yet to sit or have any session to adopt a resolution on the matter since CJN Onnoghen was charged to the CCT or suspended by the President. The statements being made “ from the throne” by the Senate Leadership cannot be a substitute for sittings and resolutions, as the power to confirm the appointment of a CJN or to remove him from office resides in the collectivity of the Senate, and not in the Senate Leadership alone. In the same vein, it is very doubtful whether the Senate Leadership can institute an action in the Supreme Court under the Original Jurisdiction of the Supreme Court without a formal authorising resolution to that effect. If such an action is ever permitted by the Supreme Court, the Court may render itself open to individual senators or groups of senators bringing applications to challenge the competence of such an action, which being an action akin to a representative action must have the concurrence of all the unnamed represented parties.

In the prevailing situation, the NADL calls on CJN Onnoghen to seriously consider a resignation from office in the interest of the Nigerian Judiciary. While doing so, he may wish to explore the plea bargaining provisions under Section 270 of the Administration of Criminal Justice Act and other similar provisions.

Finally, the NADL believes it is time to revisit the constitution and composition of the NJC in a constitutional amendment. The NJC has twenty-two (22) members, including the CJN and a Supreme Court Justice next to him in ranking. The CJN appoints twelve (12) out of the twenty members. There is an obvious difficulty in making the NJC work to sanction Supreme Court Justices in deserving cases, let alone exercise disciplinary control over the CJN, except when pushed and forced as it is the situation now. The oddity of having serving Supreme Court Justices, largely exercising disciplinary control over themselves needs to be cured in a creative constitutional re-engineering exercise. The time has, therefore, come for retired jurists, including retired Supreme Court Justices, Court of Appeal Justices, eminent legal scholars and professors of law and lawyers of impeccable integrity to be the members of the NJC, including the Chairman and Deputy Chairman of the NJC.