Jungle Justice for Chief Justice?

With the main opposition Peoples Democratic Party (PDP) latching on to the trial of Chief Justice of Nigeria (CJN), Walter Onnoghen to make all manner of accusations and the ruling All Progressives Congress (APC) responding in kind, what is going on today is akin to what followed the suspension in 2011 by President Goodluck Jonathan of the then President of the Court of Appeal, Justice Ayo Salami. Interestingly, the antagonists of yesterday are now the protagonists of today. Meanwhile, Mrs. Ayo Obe has clearly spelt out the moral, political and legal principles regarding this matter in her Monday intervention on Twitter.

A Yoruba adage teaches that when trees fall on trees, any attempt to clear the debris must begin from the top. So, it is important we first look at the political issue. The petition was received on 9th January and two days later, charges were already filed for the CJN to appear before the Code of Conduct Tribunal (CCT). By linking his allegations to “the imminence of the 2019 elections and the overwhelming role of the judiciary both before and after the election”, the petitioner, who once worked for the president, has given the game away. That a private individual could access the assets declaration form of the CJN and secure his bank details speaks to an abuse of power at certain levels. Besides, the letter written on Monday by the office of the Attorney General of the Federation seeking to freeze the CJN bank accounts confirms that the so-called NGO was acting a script written elsewhere.

On the moral side, serious questions also arise about how the CJN, a public official and head of the judiciary in our country, came about such a huge amount of money which he reportedly forgot to declare in his Code of Conduct Bureau assets declaration form. Since the CCB form is usually backed by court affidavits, failure to list all assets and liabilities presents a possible element of perjury. Whatever may be our misgivings about the politics of the issue, those who judge others cannot be excused when found wanting in matters of public probity. While Onnoghen remains innocent of the allegations before the CCT, the concerns of some people are captured in the eternal words of Claude-Frédéric Bastiat, the French writer and economist credited with developing the concept of opportunity cost: “When plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it.”

Now to the legal issue. I am not a lawyer, so I will rely on the two competing systems of values as constructed by the late American law professor and criminologist, Herbert Lesley Packer in his famous book, ‘The Limits of the Criminal Sanctions’. The first, called ‘the crime control model’, is founded on the notion of presumption of guilt for any person on whom serious allegations are levelled. This obviously was the model applied by the federal government to arraign Onnoghen before the CCT on the basis of a petition brought by an NGO of doubtful credibility.

The second Packer construct of criminal justice system is ‘the due process model’. It is founded on the principles that in the prosecution of alleged crimes, government should be held accountable to rules, procedures, and guidelines to ensure fairness and consistency in the justice process. This, according to Packer, “should look like an obstacle course, consisting of a series of impediments that take the form of procedural safeguards that serve as much to protect the factually innocent as to convict the factually guilty.” This is the model President Muhammadu Buhari and his Attorney General, Abubakar Malami, SAN, have always applied in dealing with all the cases involving people close to them.

From Abdulrasheed Maina to Kemi Adeosun and several others, no matter how overwhelming the evidence may appear, this administration always insists on due process when dealing with friends. The problem is that they don’t offer the same legal protection to people outside their circle. For instance, in December 2016, the then Secretary to the Government of the Federation (SGF), Mr Babachir Lawal was indicted by the senate for allegedly embezzling hundreds of millions of Naira meant for the Internally Displaced People (IDP) in the North-east. Despite the monumental evidence provided in the report, the president refused to act on the senate resolution.

This was the reason the president gave to the senate in defence of Babachir Lawal: “You are invited to note that non-application of principles of fair hearing by the senate ad hoc committee is a clear contravention of section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended and against all principles of rule of law as initiated in the Nigerian legal system as well as the rules of the National Assembly committees on handling of public petitions. Consequently, I am of the view that barring other considerations that may arise as a result of subsequent investigation of Lawal by the interim ad hoc committee, the current report, as presented to the presidency in its own right, does not meet the principles of fair hearing and compliance with the senate rules for conduct of investigations in matters relating to abuse of office by public officers.”

In response to President Buhari’s letter, the chairman of the senate ad hoc committee which investigated the matter, Senator Shehu Sani, then a member of the ruling APC, said: “It is unfortunate that we have a political atmosphere where you have a saintly and angelic presidency and a devilish and evil society. We must in every respect fight corruption within the kitchen as we do in the verandah. If we don’t do that, then we are being hypocritical.” It took ten months and an executive committee headed by Vice President Yemi Osinbajo before Lawal was eventually sacked. Again, in December 2016, following a damning report by the Department of State Security (DSS) against the acting Economic and Financial Crimes Commission (EFCC) chairman, Mr. Ibrahim Magu, the senate declined his confirmation. In giving Magu the benefit of the doubt, the president rejected the reports of both the senate and the DSS. That is why up till today, he remains on the job in acting capacity.

Given the foregoing, no matter the gravity of the allegation against the CJN, the manner in which this case is being handled cannot be right. After surreptitiously leaking the charges to the media, the government prosecution team came to court on Monday to admit that the CJN had not been properly served. That sort of treatment should not be given to the head of the judicial arm of government in our country.

It may be necessary to make a clarification here. I am not one of those who believe that the CJN is above the law. In my column, ‘Arrest of the Untouchables’ dated 16th October 2016, I cited examples from the United States, Indonesia and several other countries where Judges have been arrested on charges of corruption. To buttress my argument, I borrowed the words of a former Indian Chief Justice that “in the hierarchy of values, judicial integrity is above judicial independence”. Therefore, I believe, like most people, that the judgement of Justice Hyeladzira Nganjiwa, in the case involving a judge accused of unlawfully receiving $260,000 and N8.6 million, should not stand. Since the EFCC has already filed an appeal, we await the outcome but no country confers such omnibus immunity on Judges or any set of public officials for that matter. The question is, in the light of this assault on the CJN, would the Supreme Court not see that judgement as the only protection they have under the current dispensation?

Just like the Justice Salami saga, the travails of the CJN has divided the nation along partisan lines. With a crucial presidential election less than a month away, it is understandable that very few people are prepared to examine this matter dispassionately. But the almighty God, according to the late Justice Chukwudifu Oputa, “gave us two ears so that we may hear both sides”. Sadly, it is also clear that, because of the politics of the moment, those opposed to the continued stay in office of the CJN are not interested in his side of the story. They just want him out despite the fact that the presumption of innocence, a cannon of our law, is on his side.

As I told the president in the course of THISDAY interview with him last week, the reason many Nigerians have become cynical about the war against corruption is because of a strong perception that there is no equality under the law. It is very clear that certain people, especially those who belong to the ruling party, get treated differently than others when there are criminal allegations against them. That explains why those who should ordinarily feel scandalised about the enormity of the allegations against Onnoghen would rather focus on the politics of it. When you create such a trust deficit on a serious agenda as fighting corruption, the society is the loser.

Last December, the Shehu Musa Yar’Adua Centre, with support from the MacArthur Foundation, held an anti-corruption conference attended by critical stakeholders in government and civil society. While the fight against corruption, according to the communique, is already a difficult mission, “The abuse of state power compounds Nigeria’s accountability challenge. The government must be seen to be fair in applying sanctions and anti-corruption agencies must operate independently and within the scope of the law.”

As late in the day as it may seem, it is important to look at the bigger picture, which is the point being made by Chief Afe Babalola, SAN. The federal government, according to the respected lawyer, “is unwittingly or perhaps deliberately creating a wrong impression in the minds of millions of Nigerians that the Judiciary is a criminal organisation. For the sake of our democracy this is a misconception that must not be allowed to fester. No country, no matter how well intentioned its political leaders are, can aspire to greatness if its judicial arm is denigrated and held in contempt. While the Judiciary itself must be awake to its huge responsibilities, its efforts in this regard will surely not be helped by the erosion of its independence.”

Whatever may be the outcome of the current drama, the damage is already done both to the reputation of Onnoghen, who is now expected to prove his innocence if not in the court of law, at least in the court of public opinion; and the system of justice administration in Nigeria. But it should also not be lost on President Buhari that when a government begins to apply different standards in the prosecution of the war against corruption, whatever success that is achieved in the process can only be ephemeral.

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