Moving with uncharacteristic haste, the Code of Conduct Bureau on Monday initiated the corruption trial of the Chief Justice of Nigeria, Walter Onnoghen. Regarded as a landmark trial and an audacious political gambit, the case came for mention before the Danladi Umar-led Code of Conduct Tribunal in Abuja, the CJN charged with non-declaration of assets. As expected, the stunning trial has generated mixed reactions in the judiciary and political circles. With elections due in February, Onnoghen’s trial should be handled in line with the provisions of the law so as not to derail the country’s fragile democracy.
In the past week, events unfolded at a bewildering speed. On January 7, the CCB received a petition from a civil society group, the Anti-Corruption and Research Based Data Initiative. Among other claims, the ARDI alleged that Onnoghen failed to disclose his true worth in the assets form he filed with the CCB between 2005 and 2016 in contravention of extant laws for public officers. The petition alleged that he operated three domiciliary accounts with banks and deposited foreign currencies there on different dates. By Friday, the CCB had filed six charges against the CJN before the CCT. The opening day was enmeshed in legal fireworks, which caused the Umar-led CCT to adjourn the case until January 22. In no time, the Federal Government washed its hands of the case.
With the general election just weeks away, the stakes are really high. First is the question of due process in indicting and arraigning the CJN. The views of legal luminaries have been torrential, with many of them condemning the action. Afe Babalola, a Senior Advocate of Nigeria, said filing the charges against the CJN and moving ahead with the trial, tended to portray the judiciary as a criminal organisation. “On the whole, the entire episode is one that unfairly denigrates not only the judiciary but also the Constitution of the land,” he said. The Nigerian Bar Association said it was not surprised at the development since it was in line with a “pattern of consistent assault” by the executive arm of government on other arms. In a statement by its President, Paul Usoro, SAN, the NBA said it unequivocally condemned “…this assault, intimidation and desecration of the judiciary by the Federal Government of Nigeria agencies and demands that it be stopped immediately.”
Femi Falana, a silk also, condemned the trial, just as he advised the Attorney-General of the Federation to withdraw the case, emphasising that it was bound to be a prosecutorial misadventure. Falana said the charges against Onnoghen ought not to have been instituted at the CCT, given the Court of Appeal judgement in respect of Justice Hyeladzira Nganjiwa in 2017. The judgement states that a judicial officer who had not been investigated and indicted by the National Judicial Council cannot be arraigned for criminal trial in any court. Abiodun Owonikoko, SAN, said the whole idea was disingenuous and given the state of the law today in the country, the charges were premature and misdirected. But Itse Sagay, SAN, and Chairman, Presidential Advisory Committee on Corruption, held a different opinion. He argued that the Nganjiwa case, being cited by those against the trial, was not applicable to the CJN case. He reportedly said, “We should be talking of the substance. Did he or did he not do it? That is all.”
Apart from high wire politics, it is difficult to find any rationale why the authorities could bypass constitutional provisions in bringing the CJN to book. The CJN trial should be at the request of the NJC and not the CCB. This is what the Constitution prescribes. It is true that the CCB is empowered to receive “complaints about non-compliance with or breach of the provisions of the code of conduct or any law in relation there to, investigate complaints and, where appropriate, refer such matters to the code of conduct tribunal,” but the Constitution makes provisions for the NJC to guarantee judicial independence.
Buhari’s anti-graft war is losing steam because it is selective, partisan and directionless. As a newspaper, our position on corruption is well known. Corrupt judges should not only be dismissed, they should be prosecuted as it is the norm in civilised societies. A judge who has soiled his robe should have no other place to retire but in jail, upon conviction. A retired Supreme Court Justice, Samson Uwaifo, who once drew the public attention to how corruption was creeping into the appellate court, again said recently, “Anybody who is found to be corrupt, be he a judge or not, he should face the law. If he is found guilty, he should go to jail. There is no question of giving him a fine or retiring him. Do not retire a judge that is corrupt. If you retire a judge that is corrupt you just make him happy in a way, because he will be getting his pension and gratuity. A judge who is found to be corrupt must face the music. He must be prosecuted. If there is enough evidence to convict him, he should go to jail.” He is right.
But fighting corruption, especially on the bench, should not be at the expense of the rule of law and the building of enduring democratic institutions. And for this, the process for judicial impeachment is spelled out in the Constitution. Under Section 21, sub-paragraph (b) of the 1999 Constitution of Nigeria, that power is vested in the NJC. In the case of the CJN, instead of the Presidency asking for his resignation or dashing to the court for the purpose of arraignment, the NJC is expected to recommend to the President his removal or to take disciplinary action against the CJN.
Under the doctrine of separation of powers, which holds that the three branches of government (the executive, legislative and the judicial) should be separate and independent, it is not for the President to exercise undue control over each of the other arms of government. Rather, each branch has a responsibility and powers of checks and balances under the constitution to ensure that the others do not abuse their powers. Indeed, free societies need an independent judiciary, not mouthpieces for one side of the political spectrum or the other. There are better ways to fight judicial corruption than the rule of men. A brazen resort to the rule of power was why some judges and justices earlier accused of fraud and misconduct escaped justice.
This government is dangerously jettisoning the rule of law and checks and balances of democracy in favour of the strictures of authoritarianism. But Lord Acton, an English Historian, had warned, “Power tends to corrupt and absolute power corrupts absolutely.” Any attempt to undermine judicial independence, especially in an election period, is a grave threat to our democracy. Therefore, the CCB should discontinue/withdraw the case immediately. The petition should go through due process, which is to forward it to the NJC for it to do the proper thing.