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By David Augustine
The action of President Muhammadu Buhari in suspending the Chief Justice of Nigeria, is a clear constitutional aberration and a nullity, as it breaches the spirit and letters of Section 292 of the 1999 Constitution of The Federal Republic of Nigeria, which states:
“(1) 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.”
Many have tried to distinguish between removal as envisioned under section 292 (1)(a)(i) of the constitution, and suspension, as loosely used by President Buhari in his speech announcing the suspension of Justice Onnoghen as the CJN. Those who subscribe to this argument see removal as permanent, while suspension is akin to IBB’s “Stepping aside”, a temporal setback that could be remedied after the CJN had been found not culpable after his trial.
Those of this view rely heavily on Section 11(1) of the Interpretation Act provides that where an enactment confers a power to appoint a person either to an office or to exercise any function whether for a specified period or not, the power includes (a) powers to appoint a person by name or to appoint the holder from time to time of a particular office, (b) power to remove or suspend him.
We must however, be circumspect when dealing with constitutional issues. It is my opinion that the appointment of the Chief Justice of Nigeria, cannot be said to be strictly that of the president, in the same sense as that of the EFCC chairman, for instance. The constitution did not envisage anything like suspension and so, importing it into the mix is more or less a disingenuous sidestepping of our grand norm. To reconcile the true import and meaning of suspension, we must go back to the cannons of legal interpretations. Here a recourse must be made to the mischief rule, which takes into account, the mischief a legislation seeks to cure. In the instant case, I think the mischief sought to be cured by Section 292 of the constitution is the arbitrary removal of the Chief Justice, and thereby safe guard the independence of the judiciary and ensure the sanctity of his tenure. To that effect, the word used by Mister President to effect the removal of the CJN becomes immaterial, as it can be legally construed to mean removal.
Having established the illegality and the unconstitutionality of the removal of Justice Onnoghen, it now behoves on any patriotic Nigerian to take a look at the worries and concerns of President Buhari that is driving him into such dangerous grounds.
There is no doubt about PMB’s commitment to the fight against corruption and the disruptive effect of corruption on our national life and institutions. To a president who yearns for a better country, devoid of corruption, the thought of an Onnoghen, with all the baggages of corruption, superintending the nation’s judiciary, is simply intolerable.
Hon Justice Walter Samuel Onnoghen, is not just any other personality. He is the head of the judicial arm of government. He is the head of the quasi judicial body charged with disciplinary powers over judicial officers, the National Judicial Council. Such a man should be above board. When the case is the reverse as in the Onnoghen case, every patriotic Nigerian should become worried.
A little peep into Justice Onnoghen’s filthy cupboard would certainly yield some sympathy to President Buhari’s frustrations. The Former Chief Justice is an example of all that is wrong with our judiciary. Looking at the number of accounts credited to him and the funds trapped in them and the alleged 50 houses traced to him, would make any responsible President or any Nigerian, still with some sense of revulsion against crime and corruption flitch. Nobody seems to be in doubt as to how corrupt and ineligible he has become to head an important arm of government such as the judiciary.
President Buhari, in his fight against corruption has had to contend with very porous and permissive legal system that allows criminals with money get away with their crimes and boast about it openly. Nigerian judges are today a mockery of the revered position they represent. Gone are those days when Nigerians look up to a judge to be upright and unyielding when it comes to bending the rules and Justice for pecuniary reasons. The raid on the houses of top judicial officers two years ago exposed the terrible underbelly of a rotten system.
Nigeria is running a legal system that many so called Senior Advocates merely thrive on bribery. They manufacture all forms of ways of giving gratifications, recently the nation witnessed how Senior Advocates who paid various sums as bribes to judges come out to dare the rest of us, claiming the bribes were gifts. We have seen election petitions gradually becoming a gold mine for judges, who pervert Justice and award Justice depending on how deep the pockets of the litigants are. The assemblage of our notorious SANs in a confederate aid to the head of the corruption unit of Nigeria is instructive. They had already initiated their time tested antics of arm twisting the law, to as usual, circumvent the law in favour of corruption. This is frustrating, not just to our president, but to all sane Nigerians.
Corruption in the judiciary has become so pervasive, permissive and endemic that the National Bureau of Statistics in the National Corruption Survey in 2017, recorded Judges and Magistrates as the third officials in relation to whom bribery prevalence is highest at 31.5 percent, with the police coming first with a prevalence rate of 46.4 percent and Prosecutors, coming second at 33 percent.
In the same survey, Judges and Magistrates made an inglorious second to Custom officers, as the public officials who receive the largest average cash bribe in Nigeria. These are indeed very worrisome indices of corruption that would hurt the sensibility of a president worth his title.
With such Judiciary, there is no amount of fight against corruption that can yield any positive result. A thief has no moral right to jail another thief and that has been the unfortunate lots of the country’s anti corruption battle. For a president who rode on the back of fight against corruption to power, nothing can be as frustrating.
President Muhammadu Buhari, rather than resorting to self help should gather the courage to pursue a radical restructuring of the country’s judiciary. One would suggest a reform that would introduce the inquisitorial legal system to try corruption cases. This system allows the courts to be actively involved in the investigation of corruption cases, as opposed to merely playing the role of impartial referees in the battle between opposing parties. The presumption of innocence until proven guilty should also give way in corruption cases. This way, the Onnoghen of this world will be able to tell Nigerians how he came on the humongous funds traced to him.
This will be a rather tall order to achieve, unless there is a radical overhaul of the country’s constitution, which can never be possible with the National Assembly as presently constituted. An assembly populated by the ultra corrupt politicians, can never carry out the radical changes in our constitution to guarantee any reasonable and winnable fight against corruption. This is where the president’s patriotism is required. President Buhari will earn his place among the sages if he can by any means possible convoke a sovereign national conference to tinker with the 1999 constitution. Let the people decide directly what they truly want. The National Assembly is too tainted to make any radical legislation to tackle corruption. Yet our country cannot survive the way we are carrying on.