Justice Walter Onoghen. |
Our
attention has been drawn to the trending news that the Hon. Chief Justice of
Nigeria, Walter Onoghen has been charged before the Code of Conduct Tribunal,
based on a petition submitted to the Code of Conduct Bureau on Wednesday the
9th of January, 2019, and is to be arraigned before the Tribunal on Monday, the
14th January, 2019.
The
prosecutorial decision that has been taken by the Executive Branch of
Government (FGN / FRN) is a very grave one. It is unprecedented in the
political history of Nigeria. Let us go down memory lane. During the blistering
General Murtala Muhammed Military Regime, in 1975, there were massive purges in
the Judiciary as well as in the public service. Many public servants were
removed “with immediate effect”. During the purges , a sitting Chief Justice of
Nigeria, Hon. Chief Justice Teslim Olawale Elias was removed as the CJN. But he
was not subjected to a criminal trial. He later went on to serve as the
President of the World Court.
In
the life of the Buhari Presidency, the leadership of the National Assembly, the
First arm of government, has been subjected to, at least, two criminal trials (Senate
Rules forgery case and CCT False Asset Declaration Case). Following those
charges and trial is now this charge and planned arraignment of a serving Chief
Justice of Nigeria, the head of the Judiciary, the third arm of government.
Being
a weighty issue, therefore, one would have imagined that the decision to put
the CJN on trial with frenetic speed, following the petition against the CJN,
was weighed very carefully.
The
general election is 35 days away. The CJN, the Supreme Court and the NJC will
play certain statutory roles, post the elections. And even as these events
unfold, these judicial authorities are playing some adjudicatory and
administrative roles regarding the determination of pre-election matters (appeals)
arising from contentious party primaries.
The
CJN is also the head of the Judiciary. Putting him on trial while he is in
office, certainly, will impact the Nigerian Judiciary negatively. The portrayal
here inevitably will be that the Nigerian Judiciary is so corrupt that its head
is put on trial. This depiction is not fair to many judicial officers whose
integrity is solid and who are free of corrupt practices.
The
CJN is, in the eye of the law, presumed innocent, until he is proved and found
guilty. Being charged at all, however, implicates his right to fair hearing, as
many will start arguing that he should step down from office. In other words, once
charged and arraigned, the likelihood is that calls will be made for him to
vacate office, albeit temporarily, for integrity reasons. If, in the end, he is
found not guilty, irreparable damage would have been done to his reputation and
the integrity of the Judiciary.
The
most important reason why the CJN ought not to have been charged before the
CCT, let alone being prepared for arraignment is because the charge is illegal
and unconstitutional. In NGANJIWA V. F. R.N, 2018, 4NWLR, Part 1609, Page 301,
at page 339, para. G-page 352, para. E, the Court of Appeal (Lagos Division)
held that no serving judge in Nigeria can be investigated or tried in a court
of law, without first being removed from the Bench. A petition first must have
been written against the judge, and he must have faced an administrative
disciplinary process of the NJC for an alleged violation of the Code of Conduct
for Judicial Officers, found guilty, recommended, by the NJC, for removal from
office, and removed from office by the Executive arm of government. In short,
only dismissed judicial officers can be investigated and prosecuted by the anti
corruption agencies. That decision is being appealed by the EFCC at the Supreme
Court.
The
position we took when that decision was handed down was that the judgment had
no constitutional basis. Judges, (unlike the President, Vice President,
Governor and Deputy Governor) enjoys no immunity from against investigation,
arrest and prosecution, while they are in service. They do not enjoy executive
immunity, and are not covered by Section 308 of the Constitution. The Court,
therefore, cannot grant to the judiciary an immunity the Constitution does not
vest in it. The concept of judicial immunity only covers the exercise of the
judicial powers of a judge and his jurisdiction. No civil action or criminal
action may be taken against him in respect of his judicial work or decisions,
but he is not shielded from criminal culpability if he commits a criminal
offence while he is in office.
The
NGANJIWA Decision, however, remains the law in Nigeria today. Nigeria is a
constitutional democracy under the rule of law. By virtue of Section 287 of the
Constitution of the Federal Republic of Nigeria, 1999, as amended, the judgment
is binding on all authorities and persons in Nigeria , including the Executive
Branch of Government at the “ Federal “ level , the Office of the Attorney-
General of the Federation, the CCB and CCT.
We
support the fight against corruption in the public sector and in the Judiciary
in particular. But this fight must be done in scrupulous conformity with the
rule of law.
In
the light of the foregoing, we call on the President of Nigeria to direct that
the charges filed against the CJN be withdrawn forthwith for its incompetence,
even as the Administration continues to explore other legitimate and
constitutional means to continue its fight against corrupt practices in our
public life.
The
allegations against the CJN may be grave, but justice cannot be served by resorting
to patent illegalities.
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