Averting a Needless Constitutional Crisis

On Tuesday, the National Judicial Council (NJC) directed both the suspended Chief Justice of Nigeria (CJN), Justice Walter Onnoghen and the acting CJN, Justice Ibrahim Tanko to respond to the petitions against them. Similarly, the petition against the Chairman of the Code of Conduct Tribunal (CCT), Danladi Umar, was referred to the Federal Judicial Service Commission (FJSC) for consideration. Those decisions by the NJC should help to clear one strand of what has become a constitutional crisis. But it does not resolve the entire problem.

Onnoghen—already subjected to a media trial with details of his alleged offences in the public domain—has now been availed the opportunity to clear his name. Tanko—who once joined colleagues to punish a former Chief Judge of Abia State for doing exactly the same thing he did last weekend—must also explain what he saw in the soup pot, as a Yoruba adage says, that pushed him into packing the locust beans into his palms. And then Umar, the CCT chairman who sought to bring the chief justice of Nigeria to justice must now show proof that he himself is above board.

However, at the centre of this crisis is President Muhammadu Buhari who took an unprecedented step last Friday by suspending Onnoghen and swearing in Tanko as acting CJN. The questions being posed are not only about whether the president has the powers to do what he did but also his motive. That precisely is the kernel of the interventions by the U.S. Embassy in Nigeria, the UK High Commission and the European Union Election Observer Mission.

The decision to suspend the CJN, according to the Embassy of the United States, “undercuts the stated determination of government, candidates, and political party leaders to ensure that the elections proceed in a way that is free, fair, transparent, and peaceful – leading to a credible result”. The British High Commission felt “compelled to observe that the timing of this action, so close to national elections, gives cause for concern. It risks affecting both domestic and international perceptions of the credibility of the forthcoming elections.” In its own statement, the European Union wondered whether “the timing – just before the swearing in of justices for electoral tribunals, and the hearing of election-related cases” was auspicious.

In a country where it is difficult to sustain any meaningful argument without name calling and where too many are quick to rush to judgement, it is understandable that emotions rather than reason dictate the ongoing conversation. Today, anybody who voices an opinion which suggests that both the president and the suspended CJN have questions to answer (the former, on legality; the latter, on morality) runs the risk of being attacked, especially in the social media. Yet, if there is anything my experience teaches, it is that the president of Nigeria is almost like Horne Fisher, the famous protagonist in Gilbert Keith Chesterton’s collection of stories, ‘The Man Who Knew Too Much’.

President Buhari came to office with a pledge to fight corruption and the office he occupies puts him in a position to understand the linkage between the greed of a few individuals and the abject poverty of a great majority of our people. Not to take action under such a situation would have been unpardonable. But like Fisher in Chesterton’s novel, President Buhari must have also realised “how darkly and how terribly crime can be entangled with law”. Resolving that contradiction cannot be easy for the president, even though some of his choices leave him open to attack.

By resorting to extra-judicial means, by being selective in his anti-corruption targets and by violating the principle of due process in dealing with the CJN, the president has cast serious doubt on the real intention behind his anti-corruption war. Now, there are stories that the travails of Onnoghen have more to do with the cold calculations about the role of the court in the coming general election than the efforts to instil transparency and accountability in the judicial arm of government.

Meanwhile, the appointment of Tanko as the acting CJN has further deepened the ethno-religious suspicions that have dogged this administration since inception. Justice and the application of law in a secular state should be blind to the ethnicity or religious leanings of a judicial officer. It should be about the protection of the rights and liberties of citizens and the promotion of the rule of law. But with his parochial disposition in making appointments, perhaps very few would give the president any benefit of doubt that the elevation of Tanko, albeit in acting capacity, is not another ploy to install ‘one of his own’.

Announcing the suspension of Onnoghen last Friday, President Buhari said Nigeria “… is a constitutional democracy and no one must be, or be seen to be, above the law”. Yet, with a reputation for disobeying court orders (Sambo Dasuki, Ibrahim el-Zakzaky and others), the president has done so much in the past three years to undermine democracy and the rule of law. No matter the gravity of the allegations against Onnoghen, recourse to self-help in dealing with the head of the judicial arm of government in Nigeria is damaging to the principle of separation of powers.

The presidential system of government that we practice in Nigeria is anchored on that sacred principle in order to safeguard the rights and freedoms of citizens. With the state divided into three organs—executive, legislature and judiciary—and each performing different functions, the design is that no one branch can become so powerful as to control the system completely. Each one of these three arms of government is also expected to serve as a ‘check’ on the others. That was the red line crossed by the president with the suspension of Onnoghen as the CJN. No matter the justification for the action, it is a gross violation of that cardinal democratic principle.

I am well aware of the challenge of corruption within the judiciary in Nigeria. The problems are legion. In our country today, courts of concurrent jurisdiction often give conflicting orders on the same matter; politicians not only buy ‘justice’ but boast about it to opponents; some senior lawyers are known to write judgements for some judges to adopt, many of our prominent citizens are no longer content having as many SANs as their lawyers, they have their own judges too. These and many more other anomalies do not encourage respect for our judiciary as an institution. When, for instance, a judge has as many as 32 children, most of them schooling abroad, it is a given that the money to fund such indulgent, if not irresponsible, lifestyle cannot be derived from legitimate means. Despite all these, only the law can moderate whatever may be the misgivings of the executive about those who man the temple of justice in our country.

Since we borrowed the presidential system of government from the United States, it is noteworthy that no American president has ever suspended a federal judge. Indeed, the most secure job in that country is the membership of the Supreme Court where no Justice has ever been successfully removed. The closest to a removal happened in 1805, when Justice Samuel Chase was accused of “tending to prostitute” the court and his position. The House of Representatives passed the articles of impeachment against him, but Justice Chase was acquitted by the Senate so he remained on seat until he died in 1811.

The story of the late Justice Abe Fortas offers interesting insights. Nominated to replace Earl Warren as chief justice in 1968, the American senate declined to confirm him for the office, on grounds that he received $15,000 as speaking fees for a series of lectures he gave at a University. Since the money for these talks had been raised through contributions from private companies, according to many senators, Justice Fortas might not be objective in the event that cases by these firms were brought before the Supreme Court.

Although Fortas retained his seat as a Justice of the Supreme Court after failing to become the chief justice, he became embroiled in another scandal a year later. It was discovered that in exchange for $20,000 per year for life, Fortas was providing counsel to the Wolfson Foundation, then being administered by Mr Louis Wolfson, a controversial Wall Street businessman who died in December 2007. Despite public outcry, Justice Fortas said he was not going to resign. When the pressure became overwhelming and the Congress was forced to initiate impeachment proceedings against him, Fortas had little choice left. He remains till date the only United States Supreme Court Justice who left office not on account of death or of his own volition.

By refusing to call a meeting of the NJC, Onnoghen was behaving like Justice Fortas. But given the dismissal yesterday, by the court of appeal sitting in Abuja, of a motion seeking stay of proceedings on his ongoing trial at the CCT, it is very clear that the law is capable of dealing with this matter. Therefore, if the presidency had been more restrained and had exercised a little patience, with the damaging information already in the public domain, it was only a matter of time before Onnoghen would be compelled to answer questions about his assets. What that teaches is that the rule of law may be slow but it remains the best way of resolving crisis in a constitutional democracy.

In my piece, ‘Jungle Justice for Chief Justice?’ published two weeks ago, when the crisis started with the filing of charges against Onnoghen, I dealt with the moral, political and legal issues in the matter. By taking an action that has no basis either in law or precedence, those who have described the suspension of Justice Onnoghen as a presidential ‘coup’ are not too far wrong. That is why his reinstatement is important, even when it buys him no comfort. A combination of his (Onnoghen’s) 2013 judgement, affirming the jurisdiction of the CCT to deal with all violations contravening any of the provisions of the Code of Conduct Bureau, the NJC decision of Tuesday asking him to respond to the charges before the CCT and the Appeal Court ruling of yesterday, which declined the relief he sought, has already paved the way for Onnoghen to submit to the law.

Given the foregoing, what the president must understand is that the only bulwark against misconduct in public office is to apply the law, following the principle of due process. A fight against corruption that is selective, arbitrary and anchored on self-righteousness is not only reprehensible, but a sure route to dictatorship.

All said, since Nigerians are now divided on this matter along partisan lines, I encourage the NJC to be firm and expeditious when they reconvene on 11th February to resolve the logjam.

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