Beyond CJN Walter Onnoghen

It is in the nature of Nigerian politics that when elections draw close and the contending parties seem to be equally matched, we begin to witness strange developments. The most dramatic and alarming has to do with charges bordering on assets declaration by Walter Samuel Onnoghen, the Chief Justice of Nigeria. The six-count charge is in public domain. Lawyers have been engaging themselves as they are wont to do in brickbats even before they get to court, predictably because of the personality and the office involved, and evidently because it is suspected the charges have political undertones coming at this late hour. Look at the speed. An attempt was made on Thursday, 09 January, to serve the CJN court papers. He was expected to have studied them and filed his reply by Friday, 10 January and by Monday, 14 January he was expected to report at the Code of Conduct Tribunal to stand trial and answer to allegations against him by the Code of Conduct Bureau. That is the Chief Justice being treated this way like a common felon.

Justice Onnoghen was confronted with the charges 36 days to the country’s most crucial elections, the Presidential and National Assembly polls. As I write the election is only 28 days away. We don’t know how the election will go. If it is disputed the CJN will have a pivotal adjudicatory role. When the trial begins at the Code of Conduct Bureau Tribunal, the Chief Justice will be required to recuse himself—recuse, a word made popular and forced into our consciousness by erstwhile dumped Donald Trump’s Attorney-General, Sessions. How anyone expects political meanings not to be read into the move against the Chief Justice beats me hollow. Prof. Itse Sagay is right in saying that no one is above the Law. What could lend itself to an embarrassment is when and how to deploy the forces of the Law against the Chief Justice of Nigeria. The Chief Justice is the chief priest in our Temple of Justice. He is the embodiment of justice and our judicial system. He is chairman of the National Judicial Council and also of the Federal Judicial Service Commission. In these roles he is the face and head of the third arm of the government. In these onerous and sacred responsibilities he is expected to, like Caesar’s wife, be above board. What a Temple connotes is certain sacredness, a sanctuary.

What happens if the CJN is found not to be above board and unworthy of his high office will necessarily agitate our minds. I will come to this presently.

What does the law say? Lawyers are in their elements in matters of this nature, displaying not just knowledge of the law, but skills in the elucidation of the light the law is supposed to beam to the dark recesses of living. And they are at it in the court of public opinion.
“Subject to the provisions of this Constitution”, the Law reads, “every public officer shall within three months after coming into force of this code of conduct or immediately after taking office and thereafter-
a). at the end of every four years, and
b). at the end of his term of office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarried children under the age of 18 years.
Any statement in such declaration that is found to be false by any authority or person authorized in that behalf to verify it shall be deemed to be breach of this code.”

A powerful team of 47 senior lawyers have lined up and indeed announced their presence to defend the Chief Justice. They are joined by 43 other lawyers who consider themselves up to the task. Their first task is to establish that the Tribunal has no jurisdiction to try a judicial officer without the complaints against him being first examined by the National Judicial Council which can then recommend him to a court or as in this case of assets declaration to the tribunal established for the purpose. This is also the position of the distinguished lawyer, Aare Afe Babalola. I believe this is to protect the independence of the judiciary as the third arm of the government. If it were not so, an Administration such as Buhari’s which is irritated by the Israelites journey of the rule of law and has complained loudly about its frustration, would have overrun the judiciary and dealt with matters with great haste and alacrity. Babalola had this to say: “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. I am of the view that the constitution requires that any infraction by the said judges be firstly investigated and resolved by the National Judicial Council to the exclusion of any other body or authority.”

There is another set of lawyers who believe that the Chief Justice is not among the public officers covered by immunity. They do not see it as an assault on the judiciary the way their national Association, the NBA, is viewing it. It is tempting to ask: “Did he breach the code of conduct or not especially in view of the seriousness of the charges against the CJN?” That is precisely, without conceding the particulars of the charges, what his lawyers are saying, but through the laid down process of the matter first being examined by the National Judicial Council. The assets in terms of bank lodgments in local and foreign figures in the public domain are incredible. Whether the lodgments are true is another kettle of fish. The Chief Justice cannot be unaccustomed to banking rules and sanctions that make it mandatory for banks to report to authorities lodgments in excess of a given amount by individuals and companies, rules for financial houses in all free world. The CJN would know if lodgments made into his account were being monitored. If they were true, he would have played into the hands of Buhari’s boys who would be elated to triumphantly feed our huge appetite we are wont to display for scandals.

Declaration of the CJN’s assets and properties are as a result of his being a judicial officer. This means that although he may not be covered by immunity as a public officer, being a judicial officer makes all the difference. The due process laid down in the constitution for a judicial officer stipulates that his case should first be heard by the National Judicial Council. This exempts him from going straight to the Code of Conduct Tribunal.

The second point is, what will the spectacle be like seeing the Chief Justice in the dock facing criminal charges? The ugliness of such a scenario would be unprecedented and matchless. The picture that would flow before the eyes is a Chief Justice in his full regalia and power invested in that office standing in the dock! And this is the one officer of the law being dragged to stand in the dock and before a junior judge. It is not without foundation that justices are addressed as lords. It is only they that have the power of life and death over their fellow human beings. In that office, when they mount the throne, they are assumed to be half a step higher than their fellow men. They are an embodiment of the Law and Justice. And wisdom! These are precipitations of attributes of the higher Laws that govern the entire universe, indeed the whole of Creation.

Certainly the humiliation of a Chief Justice no matter the degree of moral deficit is not just a humiliation of the judiciary, but of the whole country. Assuming the charges are true, the question that would be asked is whether due diligence and exhaustive background and security checks were carried out before his appointment.

In my view, since trial of a crime is not statute barred, moving against Justice Onneghen should have waited until his retirement which is only two years away. By that time another Chief Justice would have been in place to hold the sanctity of the office.

As I reflected on this event more deeply, however, I asked myself, how some other person, say Obasanjo, for example, would have handled this situation so that an unintended grave damage would not be done to the image of the country. What was the scenario that would have played out? This is assuming again that the charges are unassailably true, and I am not saying they are. Armed with the report, Obj would have gone to meet the Chief Justice in his home in the dead of the night, say 2a.m. After pleasantries and getting his host to relax with jokes and humour, he would confront him with the document and ask him to confirm the highly explosive but confidential report. Upon confirmation, Obj would suggest to him to resign for the sake of the effects the report going out would have before the public and the international community. He would say to him that if he did not mind he might wish to see a draft he had brought for him; all he would need to do was to sign it. Reason for the resignation: On health grounds. Both would agree to keep their meeting and agreement exceedingly confidential. That would be the first visit.

On the second meeting he would go with Justice Uwais, a retired CJN and Afe Babalola whom he admires and trusts a lot, to negotiate certain terms of disengagement. The third step Obj would take is after six months or so, he would appoint Hon. Justice Onnoghen an ambassador to Tunisia!

The trial of Chief Justice Walter Samuel Onnoghen will diminish us all. The able lawyers must deploy their knowledge of laws and their skills that the CJN does not go into the dock. What is at stake is beyond the denigration of a Chief Justice, the humiliation of the head of the Nigerian judiciary.