Nigeria: The Suspension of Chief Justice Onnoghen – Is it Constitutional for the President?

Alao Abiodun
20% Complete
 26-Jan-2019

The dramatic suspension of Justice Walter Onnoghen as the Chief Justice of Nigeria by President Muhammadu Buhari, and the subsequent swearing-in of Justice Tanko Muhammed as the Acting CJN has continued to generate heated debates and controversies among Nigerians.

There have been a lot of mixed reactions regarding the allegations against the Chief Justice of Nigeria. The Nigerian Bar Association (NBA) and a number of lawyers have condemned the actions of the CCB and the presidency tagging it an attempt to intimidate the Judiciary.

The Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, has been charged to court over a six-count criminal charge due to his refusal to declare his assets.

The charge which was filed Thursday, 10th January 2019 by the Code of Conduct Bureau (CCB) alleges that the CJN not only failed to disclose his assets as required by law, but also operates multiple foreign bank accounts.

According to reports, Onnoghen, who is the highest judicial officer in Nigeria, was arraigned on Monday, 14th January 2019 before the Code of Conduct Tribunal (CCT). The case includes a motion for the tribunal to compel the CJN to vacate his office and concentrate on clearing himself.

Who’s the Chief Justice?

The Chief Justice of Nigeria or CJN is the head of the judicial arm of the government of Nigeria, and presides over the country’s Supreme Court and the National Judicial Council. The Chief Justice of Nigeria is nominated by the President of the Federal Republic of Nigeria upon recommendation by the National Judicial Council and is subject to confirmation by the Senate of the Federal Republic of Nigeria.

The appointment of the Chief Justice of Nigeria, President of the Court of Appeal and Chief Judge of a state and that of the Federal High Court is provided for under the 1999 constitution.

For the CJN, it is provided under section 231(1). The President makes the appointment on the recommendation of the National Judicial Council (NJC) subject to confirmation by the Senate. It is the same procedure for the President of the Court of Appeal, which is provided for in section 238 (1).

The Appointment of CJ Walter Samuel Nkanu Onnoghen

Before his emergence, there was so much frenzy, furor and hysteria over the appointment of the Hon Justice Walter Samuel Nkanu Onnoghen as Acting Chief Justice of Nigeria (CJN), rather than the substantive CJN.

The debate took every dimension possible, including accusing the Federal Government of trying to suppress the right of one part of the country in favour of another.

He was appointed acting CJN on November 10, 2016, when Mahmud Mohammed, his predecessor, retired.

A controversy had brewed over President Muhammadu Buhari’s delay in sending his name to the senate for confirmation as CJN.

Acting President Yemi Osinbajo eventually forwarded his name to the upper legislative chamber, but not until two days to the end of his tenure, which was renewed by the National Judicial Council (NJC).

Onnoghen is remarkably the first southerner to be CJN since 1987 when Ayo Irikefe retired.

The Suspension of the Chief Justice, Walter Onnoghen

The Federal Government on Friday suspended the embattled Chief Justice of Nigeria (CJN) Walter Onnoghen following the order of Code of Conduct Tribunal of January 23rd.

To replace him, President Muhammadu Buhari swore in the acting CJN in the person of Justice Ibrahim Tanko Mohammed from Bauchi State.

According to the President, the suspension stands till the conclusion of his trial at the Code of Conduct Tribunal.

Justice Ibrahim Tanko Mohammed was conveyed to the Presidential Villa at about 4:30pm in a black Mercedes Benz C240 with number plate GWA: 900FA.

President Buhari, at the short ceremony, said: “A short while ago, I was served with an Order of the Code of Conduct Tribunal issued on Wednesday 23rd January 2019, directing the suspension of the Chief Justice of Nigeria, Honourable Justice Walter Nkanu Samuel Onnoghen from office pending final determination of the cases against him at the Code of Conduct Tribunal and several other fora relating to his alleged breach of the Code of Conduct for Public Officers.

What does the law say?

While it is true that Justice Walter Onnoghen did not declare his assets in line with the Declaration of Assets Act, the executive’s preparation for his arraignment does not follow the due process.

In the recent 2018 case of Nganjiwa vs F.R.N, the Court of Appeal addressed the issue of whether or not a serving judicial officer can be subjected to criminal prosecution without complying with the condition precedent of subjecting the judicial officer to the disciplinary jurisdiction of the National Judicial Council. The CA held that no serving judge in Nigeria can be investigated or tried in a court of law, without first being removed from the Bench.

The procedure is to prepare a written petition against Onnoghen, and pass it on to the NJC for an administrative disciplinary process. The NJC then investigates the violation and notifies the CJN in writing of the allegations while providing him with reasonable time to respond.

If the NJC considers the allegations to be valid, he is to be recommended for removal from office by the executive. After his dismissal, he can be investigated and prosecuted by any anti-corruption agency such as the Economic and Financial Crimes Commission (EFCC).

Given that the CCT did not file its motion against Onnoghen in conformity with the appropriate procedure, it is only right to question the validity of his proposed arraignment.

To be precise, Section 292 (1) of the 1999 Constitution (as amended) states that ‘’A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –

(a) in the case of – (i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.

CJN’s response

In a statement sent in response to the queries raised by the CCB, Justice Walter Onnoghen said he forgot to make a declaration of his assets after his initial 2005 declaration expired:

“My asset declaration form numbers SCN 00014 and SCN 00005 were declared on the same day, 14/12/2016 because I forgot to make a declaration of my assets after the expiration of my 2005 declaration in 2009. Following my appointment as acting CJN in November, 2016, the need to declare my assets anew made me realize the mistake.

“I then did the declaration to cover the period in default. I did not include my standard charted bank account in SCN 000014 because I believed they were not opened. I did not make a fresh declaration of asset after my substantive appointment as CJN because I was under the impression that my SCN 000015 was to cover that period of four years which includes my term as CJN,” – Walter Onnoghen

Following the retirement of former CJN, Mahmoud Mohammed, Onnoghen was appointed acting CJN in November 2016.

His appointment was initially stalled by President Muhammadu Buhari until Vice President, Yemi Osinbajo forwarded Onnoghen’s name to the Senate for confirmation as the most senior judge on March 1 2017.

Eventually, Walter Onnoghen was sworn into office as the country’s 17th CJN on March 8, 2017.

Court Order flouted?

President Muhammadu Buhari’s decision to suspend the Chief Justice of Nigeria, Justice Walter Onnoghen, was in contravention of a court order restraining the President, the Code of Conduct Tribunal and the Attorney-General of the Federation from removing Onnoghen.

According to court documents obtained by our correspondent on Friday, Justice I. E Ekwo of a Federal High Court sitting in Abuja had on Monday restrained all parties from suspending or removing the CJN.

Buhari, however, went ahead to suspend the CJN, relying on an order of the CCT

Onnoghen’s Suspension – Constitutional or Unconstitutional?

The Chairman of the Presidential Advisory Committee against Corruption, Prof Itse Sagay (SAN), has defended the suspension of the Chief Justice of Nigeria, Walter Onnoghen, who is facing charges for alleged fraudulent assets declaration.

The Federal Government announced the suspension of the Chief Justice on Friday, stating that the action followed an order of the Code of Conduct Tribunal dated January 23, 2019.

It added that the suspension would stand till the conclusion of his trial at the Code of Conduct Tribunal.

President Muhammadu Buhari, on Friday, swore in Justice Ibrahim Tanko from Bauchi State as the acting Chief Justice

He said, “It is constitutional. If you look at Section 292 of the constitution, paragraph one clearly makes provision for that where the Chief Justice is guilty of a code of conduct.

“The provision is very clear. It states that where the Chief Justice is guilty of a breach of the code of conduct, he can be removed by an address of two-thirds majority of the Senate. It is quite clear that the Senate itself cannot initiate that address; there is only one person who can do that and that is the President.”

The Southern and Middle Belt Leaders forum has described the suspension of the Chief Justice of Nigeria (CJN), Walter Onnoghen by President Muhammadu Buhari as a coup against constitutional democracy

In a statement signed by Chief E K Clark (South South), Ayo Adebanjo (South West), Chief John Nwodo (South East) and Dr Pogu Bitrus (Midddle Belt), the leaders in a statement titled ‘Constitutional Crisis As Buhari Illegally Suspends CJN’ , the leaders said they have checked through the constitution and found out that President Buhari lacks the power to suspend the CJN unilaterally except by 2/3 of the National Assembly.

The statement reads: “The attention of Southern and Middle Belt Leaders has been drawn to a coup against Constitutional Democracy in Nigeria by President Muhammadu Buhari by the Suspension of CJN Walter Onnoghen this evening and swearing in a replacement. This is a constitutional crisis foisted by desperation and morbid desire to foist rule of thumb.

“We have checked through the constitution and the President has no power to unilaterally suspend the CJN.

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