The Nigerian judiciary is under the spotlight yet again, for decidedly unsavoury reasons.
Barring any drastic change of plans, the Chief Justice of Nigeria, Honourable Justice Walter Nkanu Onnoghen will be arraigned before the Code of Conduct Tribunal (CCT) this morning on six counts of alleged false asset declarations. The charge, based on a petition to the Code of Conduct Bureau (CCB) by a self-styled anti-corruption group led by Dennis Aghanya, a former official of President Muhammadu Buhari’s defunct political party, Congress for Progressive Change, alleges that Mr Onnoghen maintains multiple undeclared foreign-denominated accounts. The move has been roundly criticised by civil rights groups, the Nigerian Bar Association (NBA) and senior members of the country’s legal community as yet another attempt by the Executive to intimidate the judiciary.
Ordinarily, the arraignment of a highly ranked official on corruption charges, or indeed any criminal charge at all, is considered an indication that all men are equal before the law and that the law is being practised impartially. It, however, does not invoke this sense of equity and neutrality in a country like Nigeria where criminal charges against high profile public officials hardly end in successful prosecutions and are known tools of political expediency.
For one, observers have noted the remarkable speed of developments in this case. Accounting for today’s arraignment, only three working days have passed between the receipt and processing of the petition by the CCB on Monday; an investigation, preparation of charge and ancillary processes; service on the Chief Justice on Friday and his arraignment before the CCT on Monday, an unprecedented feat in Nigeria’s famously labyrinthine criminal justice system that does not hint at a sudden infusion of efficiency in the system but rather at the interplay of extra-judicial factors.
But this is hardly the most consequential thing of note about this case.
The consensus of legal opinion, including the six legal practitioners SBM consulted in preparing this report, is that the CCT is not the appropriate venue for the arraignment of the country’s most senior judicial officer. There is an established line of laws, legal directives and judicial precedent, including a 2017 Court of Appeal case (Nganjiwa v The Federal Republic of Nigeria) which states that a judicial officer who has not been investigated by the National Judicial Council (NJC) and sanctioned for misconduct cannot be arraigned in any criminal court in Nigeria.
The NJC is constitutionally empowered to recommend the appointments, and removal, of all Nigerian judicial officers. A critical part of that duty is the power to investigate any “breach of a judicial oath” by an officer and if found to be so, such a judicial officer shall either face disciplinary action by the NJC, or the Council may recommend the removal of such an officer to the appropriate appointing authority, either the President in the case of a federal judicial officer, or a state governor in the case of a state judicial officer.
Most observers regard the NJC as presently constituted to be sufficiently independent and unencumbered by some of the institutional weaknesses that characterise most Nigerian regulators – it issued a Revised Code of Conduct for Judicial Officers in 2016 and a Judicial Discipline Regulations (JDR) in 2017, for example – as to be able to fulfil its responsibilities under the law. It hardly needs any help. While Mr Onnoghen chairs the Council in his position as the CJN, the JDR allows the Deputy Chairman of the NJC to preside over any disciplinary proceeding where the CJN cannot – either because of unavailability or when he is the subject of a disciplinary proceeding.
This development will undoubtedly increase the tension between the executive and judiciary under this administration. This administration started with a bang when Department of State Security operatives invaded the homes of some of the country’s most senior judges in 2016. That action, roundly condemned at the time, has not yielded any successful prosecution. Furthermore, Mr Onnoghen was hardly the President’s favoured choice for the role. In November 2016, the President delayed the current CJN’s appointment for three months under circumstances that led to speculation that he favoured a northern appointee.
That suspicion has hardly been dispensed with since. The Cross River State native’s predecessor in office was not only a northerner, Justice Mahmud Mohammed, but Onnoghen was also the first southern holder of the position since Lagos-born Justice Ayo Gabriel lrikefe in 1987 – a stretch that covers eight consecutive northern chief justices. Adding fuel to this notion, Justice Ibrahim Tanko Mohammed, a Bauchi native is next in line to Justice Onnoghen and will be the direct beneficiary of the latter’s ouster, coupled with the fact that the petition was spearheaded by a former aide to the President.
The timing of the arraignment also merits some commentary.
President Muhammadu Buhari’s major contender in the forthcoming elections, the Peoples Democratic Party’s Atiku Abubakar is unlikely ‘to do a Goodluck Jonathan;’ and neither of the two main presidential aspirants expects a concession call from the loser of what is sure to be a close vote. What this means is that it is highly likely that the judiciary will have the definitive say via election petition proceedings on who will be the next president. Coming after the country’s highest judge at this time raises questions about the motives of the ruling All Progressives Congress.
In the final summation, what undergirds all democracies is the respect for the institutional and judicial process of the state. In many cases, this respect for ‘due process’ as it is called in these parts, is slightly more important than the outcome for the simple reason that outcomes do not set precedent for future public officials, processes do.
Both Buhari and Onnoghen will come and go, but the offices of the President of the Federal Republic of Nigeria, the Chief Justice of Nigeria, and the Code of Conduct Tribunal, will remain. A future president may decide to pursue or permit the institutions of state under his direction to pursue a similar course of action with a future Chief Justice because, in 2019, one of his predecessors thought it was the appropriate thing to do.
A few weeks to an election season which many are increasingly seeing as a referendum on Nigeria’s democratic practices, the country once again advertises its challenges with entrenching democratic norms.