Onnoghen case ends anticlimactically

ONCE the Muhammadu Buhari presidency latched on to the controversial January 23, 2019 ex parte order given by the Code of Conduct Tribunal (CCT) to effectuate the suspension of the Chief Justice of Nigeria (CJN), Walter Onnoghen, it was all but clear that the jurist was a marked man, in fact a dead man walking. It is only on rare occasions that a citizen is vindicated by the law in his battle against the state, particularly a state that pretends only to constitutional rule but is at bottom authoritarian. Even when the lone warrior is squeaky clean, the outcome is rarely in his favour, let alone when some dirt is found ensconced in his cupboard. It took a little over two crazy and dizzying months for Justice Onnoghen to fight the system, a fight that was both hopeless and ruthless, but in the end, with his retirement last Friday, the case has appeared to end anticlimactically.

It no longer matters whether Justice Onnoghen was innocent or not, or whether he will get a soft landing or not, or even whether the case against him will continue in the courts or not. What matters is that even before he was confirmed as CJN in March 2017, after occupying that office in acting capacity for three months, he was still not the president’s choice. In fact the president did not seem averse to enduring a constitutional crisis in his bid to bar Justice Onnoghen from becoming the CJN. Was the president guided by concerns over Justice Onnoghen’s competence, or was he persuaded by ethical concerns in view of the reports in some quarters that the eminent jurist was mentioned in the Justice Kayode Eso report that indicted some judges for corruption? The president did not say, and perhaps may continue to resist any attempt to coax him to give an explanation. But by keeping silent, the president allowed suspicion to fester that his action was inspired by ethnic rather than national considerations.

After a valiant two months or so of fighting the state in a case that traversed the CCT and the Court of Appeal, Justice Onnoghen finally threw in the towel. He thus disappointed those who hoped he would fight to the bitter end, no matter the cost, and especially because he was beginning to look good in the eyes of the law just as the presidency was becoming more desperate and reckless. He had been tried in the media and found guilty to the dismay of the judicious but the satisfaction of government supporters. However, the government’s case against him was wilting badly under cross examination. Justice Onnoghen suggests that his notice to quit is based on his desire to spare the judiciary further punishment and bad image. But he knew the dangers his initial determination to pursue the case exposed the judiciary, including the unprecedented humiliation of putting him in the dock before the chairman of a quasi-criminal court.

Even though the real reasons for throwing in the towel are probably known to only him and his counsel, there are suspicions in other circles that perhaps he had had enough, his mind becoming wrought up, and his blood pressure too agitated by the attention and relentless battering in the press to keep responding very positively to medication. There is a limit to which the heart can be tormented. Others suggest that the government was prepared, in its desperation, to push matters up a shattering notch in order to stave off a constitutional crisis which the effort to confirm Acting Chief Justice Ibrahim Tanko Muhammad might elicit. Justice Muhammad is a product of an illegitimate CCT order, not the advice of the National Judicial Council (NJC). It would take a careless and indifferent NJC building something on the CCT’s nothing to butt in on the process and recommend an extension of the acting appointment of the Acting CJN. But if Justice Onnoghen could be cajoled into retirement, the NJC, having already been inoculated against reason and the principles of natural justice, would feel relieved to make the long-awaited recommendation. They were not expected to feel embarrassed to recommend someone who by their rules should be forced to quit on account of being used by the executive branch to supplant the natural order of appointment of judges.

If in the beginning Justice Onnoghen thought he could get justice, especially someone of his calibre and juristic experience, many Nigerians, including this writer, had felt drawn to associate with his idealistic and legalistic dreams and daredevilry. They hoped he would keep fighting, even though they knew more than he that the fight was unequal and hopeless. His sympathisers were more shocked and disturbed by the impunity of the government and the persecution it had authored and inspired than by whatever administrative or ethical warts were alleged against the CJN. As it turned out, the CJN’s case was holding up surprisingly, if a little admirably, well in the courts despite the hostility, bias and incompetence of the judges arraigned against him. But Justice Onnoghen himself, it turned out, had more sense than many gave him, and than the government and the media gave him. He knew when to quit. He had entertained some slim hope that the NJC would be smitten by conscience and would lend his cause, nay the cause of an independent judiciary, some solid support by resisting the meddlesomeness of the executive branch. He was cured of that disease last week. On Wednesday, after many rigmaroles, the NJC finally threw their CJN under the bus and hissed at him. Despite his idealism, Justice Onnoghen should have known the character of the NJC he headed for more than a year and a half.

The legal profession is regarded as conservative, even when some judicial activists happen along the way. But the NJC is even more conservative than the law. The law on its own has some character. But it is difficult to determine what resides in the heart of the NJC, character or something unmentionable else. They are trained to be sceptical about the guilt or innocence of an accused. But like many lawyers and general commentators, they seemed easily persuaded that Justice Onnoghen had been damned over and over again. They may know the law, but as far as the law goes, the practitioners of the law need spine to push and defend their knowledge of the law. When Justice Ayo Salami stepped on powerful judicial cum political toes in 2011 under the Goodluck Jonathan government, a few top members of the NJC were instigated to rise against him. When it became clear that Justice Salami had indeed been the wronged man rather than the wrongdoer, the NJC could not muster the grit to defend or exonerate him, even when he confronted them openly and with witnesses with enough exculpatory evidence. Justice Onnoghen unwisely reposed too much hope in the NJC, not minding whether they had many ambitious jurists among them and others whose calculations had nothing to do with the law, constitution or reason.

When Justice Salami was sacrificed in August 2011, and stayed suspended for more than two years, few knew how far down the misty and murky road the country’s judiciary would be compelled to travel less than one decade later. Now the NJC has behaved true to type and done even meaner things than they did eight years ago. The decision they took to recommend Justice Muhammad as the next CJN, regardless of the atrocious use of ex parte order by the CCT to emplace him in acting capacity, will still return to haunt them. When the Justice Salami suspension took place, it was on the recommendation of a compromised NJC frivolously punishing the President of the Court of Appeal for refusing to apologise to the then CJN, Aloysius Katsina-Alu. No one thought the country would one day witness a president seizing upon the flimsy order of a tribunal to suspend the CJN. Well, it has happened, and the NJC is at peace with that anomaly. Indeed, the country, short-sightedly thinking the president’s unprecedented measure enhances the fight against corruption, has backed it with a ferocity and recklessness typical of the black race’s lack of perspective thinking.

In the two or more obscene months that the case lasted, Justice Onnoghen had seemed to weather the surprising collusion of the judiciary with the executive arm. Whether he meant it or not, he gave the impression that he would be exculpated at the end of the mistrial. But gradually, his confidence began to erode when the chairman of the CCT, Danladi Umar, forsook the law and began to approach the case conspiratorially  and inquisitorially like a presidential appointee. It got so bad that Justice Onnoghen’s defence counsels wondered whether this was still the Nigeria they knew, or whether what was happening in the CCT had any pretence to be described as justice. In the matter of recusal, the CCT chairman bluntly refused to recuse himself. In the matter of jurisdiction, Mr Umar, despite the provisions of the law, insisted he would rule on that at the judgement stage pari passu with the substantive case. And what of the controversial ex parte order? Why, of course, it would be addressed after the final judgement. All three issues are before the Court of Appeal, already argued, but obviously kept meanly in abeyance. The obvious interpretation is that the Court of Appeal simply stayed away from the matter because it was too risky and they too were living in a glass house.

The last few months have been very bad for the judiciary in Nigeria, with judges and many legal experts playing ignoble roles. On the whole, under the Buhari presidency, the judiciary has not fared well at all. It will get worse. In the coming months, with the ruling party dominating the legislature, and the judiciary weakened by relentless assault by a presidency which can’t seem to understand the principles of democracy, Nigeria will need special effort to stave of fascism, open or disguised. It will become harder to get justice in Nigeria in any case the government is interested in. In the past one or two decades, appointment to the bench had been corrupted by sundry considerations, and increasingly judges without depth and character had begun to populate the bench. The consequences are beginning to manifest. Unfortunately, the Buhari presidency, which sees itself in the military mould as a corrective government, has also failed like its predecessors to understand the urgency of laying a solid and inspiring foundation for democracy. It doesn’t understand the principles of democracy, not to say of federalism, and so it can’t fathom why the future implications of a policy must always be taken into cognisance.

It is possible that Justice Onnoghen may be guilty of one or more of the allegations levelled against him by either the Code of Conduct Bureau (CCB) or the increasingly politicised Economic and Financial Crimes Commission (EFCC). But it was important that the judicial process must not be corrupted, distorted or abridged in bringing him to book. President Buhari has spoken disdainfully of the judiciary as a whole and the exploitation of technicalities in particular. Had he spent a part of his first four years in office reforming the law, rather than hating it, technicalities could have been written out of the Nigerian legal system like some other legal systems elsewhere in the world have done. Until he does that, however, he and his government must find the discipline to respect the law, whether some of the provisions favour them or not. In any case, to what extent did Justice Onnoghen even exploit technicalities in seeking justice? The Buhari presidency has not been profound at all, and it has seized upon a country so superficial in its approach to and understanding of the rule of law that it is exploiting mass ignorance and emotions to build a dangerous legal and legislative template for a disastrous and illiberal future.

The interventionist rot in the judiciary started, in recent years at least, with the suspension of Justice Salami, President of the Court of Appeal. Now, it is Justice Onnoghen, the Chief Justice of Nigeria, who is being thrown casually under the bus. Who is next? Inconclusive elections began with Kogi State in November 2015. Now it has become a national and despicable template for controversial polls. What is next? A people’s liberties, as Germany in the late 1930s showed under the NAZIs, are lost inch by inch, not in one fell swoop, until the whole society is itself imperilled. Can’t Nigerians take a look at their country and see whether it is becoming more liveable or less liveable, more democratic or less democratic, more secure or less secure? Who has bewitched them? It must be stated clearly and forcefully that nothing good will come out of the appalling manner Justice Onnoghen has been treated, whether he offended the law or not. The future is indeed pregnant with terrible auguries, particularly because of the presence in office of a government which no one has ever accused of acting with altruism in anything.

• The second part of APC, Buhari and 2023 will be published next week