About a month before what is arguably the most trepidiously anticipated election in contemporary Nigerian history,the administration of President Muhammadu Buhari, who is seeking reelection, charged the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, to the Code of Conduct Tribunal with false declaration of assets. The prosecution went further to seek (and subsequently receive) an order from the Code of Conduct Tribunal to suspend the CJN. President Buhari then promptly swore in Justice Ibrahim Tanko as acting CJN.
The legalities of this sequence of events are still being hotly debated across the country. The Nigerian Bar Association (NBA) was quick to condemn the moves, and went further to pretty much call for a partial strike by asking all lawyers to stay away from courts for two days in protest.
I’m no Lawyer, but…
Going from the little I’ve been able to glean, the principle of separation of powers means that disciplinary action against a judicial officer must begin with the National Judiciary Council (NJC), which is constitutionally mandated to investigate petitions against judicial officers and then, if found wanting, suspend them and recommend prosecution. This was clearly not done. According to human rights lawyer, Mr Femi Falana, the NJC was due to meet a week or so before the federal government moved against the CJN but the meeting never took place. As chairman of the CJN, Mr Onnoghen could easily have been the source of the delay, denying the NJC the opportunity to entertain a petition against him, but that’s pure speculation right now.
Anyway the NJC have since met, notably in the absence of both Mr Onnoghen and Mr Ibrahim, and have given both absentees 7 days to respond to petitions against them. It appears the usual period is 14 days but that was shortened due to the extenuating circumstances and the limited time left before the general elections. I guess we will see how that works out.
Mr Falana also pointed out that the decision of some lawyers to approach the National Industrial Court was likely a failure of judgment. His argument was twofold: first, only an aggrieved party can file a complaint, hence making their case frivolous. Secondly, by filing at the NIC, the lawyers are implying that the CJN is an employee of Mr Buhari, which is not the case and further makes the present actions appear more legitimate than they really are. Touche.
Another legal mind, Mr Emeka Nwadioke, has pointed out that a similar case occurred almost exactly a year ago, albeit at state level. In that case the Abia state House of Assembly had suspended the Chief Judge of the state, Justice Theresa Uzokwe, following which Governor Okezie Ikpeazu appointed and swore in Justice Obisike Orji as acting Chief Judge. However, the NJC determined that neither the suspension of Justice Uzokwe nor the recommendation of Justice Orji (though he was technically the next most senior offier) was via the recommendation of the State Judiciary Council and thus declared both “unconstitutional, null and void.” In other words, dead in the water. The NJC also suspended and queried Justice Orji for presenting himself to be sworn in by the governor “and thereby colluding in, and aiding an unconstitutional process. His reply was unsatisfactory and the council recommended his compulsory retirement.”
Now, it is to be expected that Mr Buhari likely consulted with the Attorney-General of the Federation and Minister of Justice, Mr Malami before taking action on Mr Onnoghen. After all, what’s the point of hiring the man if you can’t pick his legal brain? Mr Malami is likely to have informed the president and his handlers of this and other loopholes (if not, he’s probably sitting on hot coal right now) and yet they still decided to go through with it. The reasons are currently in the realm of speculation, but the mindset, however, is crystal clear (we’ll get there in a minute).
The stated position of the federal government, frankly, would be laughable if it wasn’t insulting. According to presidential spokesman, the president is simply following the rule of law and will not interrupt the courts as they go about their business. I needn’t remind anyone of Mr Sambo Dasuki, Mr Ibrahim El-Zakzaky (and his wife), all of whom have been held by the federal government despite multiple court orders to their release (including by the ECOWAS Court of Human Rights). This is not to mention multiple Freedom of Information requests ordered by courts to be honoured but remain ignored, or indeed the case of Mr Babachir Lawal who was indicted by a presidential panel of corruption 2 years ago but was only reluctantly fired (released might be a better word), has reportedly been involved in the president’s re-election campaign and only recently is being charged to court (we’ll see how far that goes). To hide behind the cloak of rule of law by an administration that has consistently rubbished the same is mind-boggling. So ignore those claims, because while the legalities are being debated, the move itself was driven by politics.
Some of our international partners have expressed their concerns regarding the move and, in particular, its timing. The angry retort from by the president’s camp that internal affairs should not be their concern does not hold water. As some have pointed out (can’t remember where, sorry), the current presidential spokesman, Mr Garba Shehu, in 2015 announced that the APC was lodging a petition at the International Criminal Court over the alleged behaviour of former President Goodluck Jonathan’s supporters. More recently, the federal government took the astounding step of publicly requesting the USA to not grant a visa to the opposition presidential candidate. Even more recently, the president held a reelection campaign rally in Kano state alongside two governors from a foreign country, the Republic of Niger, while fully aware of the allegations that have been making the rounds that his support base in that part of Nigeria is bolstered significantly by foreigners illegally crossing over to vote in Nigeria. But that’s a story for another day. The thing to take away from this is the fact that this administration is not really concerned about foreign interference but is rather bristling at being called out.
The choice of Mr Tanko Muhammed is, in my view, very fortuitous for the president. Aside from the ethnic angle, an accusation which has followed this president in his almost 4 years in power and which he does not appear to consider worth addressing, let alone getting over, there is another side. It appears to me that Mr Tanko found himself in the fortunate position of being able to provide this government the opportunity to be able to claim that it followed due process by appointing the next most senior officer, as opposed to simply selecting its preferred officer. But the more cynical would ask, did Mr Buhari intend to appoint Justice Tanko all along when he refused to confirm Mr Onnoghen as the substantive CJN in early 2017? Recall that after the retirement of the former CJN, the NJC, as is its constitutional responsibility, nominated Mr Onnoghen but Mr Buhari just couldn’t seem to find the time to forward his name to the National Assembly for confirmation. It took the president’s illness for the country to resume functioning when the acting president swore in Mr Onnoghen. Maybe the infamous “cabal” never quite got over that. Anyway, it further places a spotlight on Mr Tanko, even beyond him accepting to be sworn in so haphazardly without being absolutely sure that due process had been followed.
In all this it is safe to assume that the federal government’s moves were clearly premeditated,as evidenced by the discrepancy between the dates of petitions received, case initiated, orders sought and approved, etc. Not only that but on the balance of probabibility the timing was deliberately chosen. Indeed when the story broke I found myself scanning the news for other stories, just in case it was meant to distract while the president’s niece got away with murder or something.
You see, any adviser worth the name would have taken into account that Mr Buhari has been accused of not restraining his supporters from post-electoral violence and, combined with the accusations that a high level official of the electoral commission is a blood relation of the president, there are also major fears that the ruling party intend to not only rig the elections but also to stifle any opposition or court processes. Indeed the potential for an Internet shutdown this month is very likely. Nigerian elections are often heart-in-mouth events but this one has generated even more concern and not just in the country or the region but across Africa and indeed the world. All that said, one would have expected the president to focus more on dousing tensions than raising them. This leads us to one inescapable conclusion…
All be Damned
The federal government cares not for rule of law, public opinion, or the norms of democracy (some might say even the pretense of if). But you already knew that. This administration, like pretty much all others before it, is hell-bent on winning the general elections at whatever cost. But you knew that too when you listened to the infamous Amaechi audiotape and wondered why someone who would happily express disillusionment and incredulity with the administration would still remain its campaign director.
Remember when we talked about the mindset behind the decision to move against the CJN? What you maybe overlooked is that the do or die nature of Nigerian politics has become even more institutionalized and ingrained by this administration. Because, likely as not, the president’s political advisers and handlers had the information on Mr Onnoghen long before. I’m not convinced that a former aide of the president just happened to stumble upon the information and the CCT just happened to have some free time. No, it’s more likely that the information was known and probably other suspicions being held. There is talk that Mr Onnoghen is suspected to be in the pocket of the opposition party and may do their bidding, despite the fact that in previous election tribunals, he was the minority opinion who sided with Mr Buhari. We can speculate all day and get nowhere, but I think we can agree that the timing of the release and action was deliberately intended to give opponents little to no time to react. That’s just good politics.
Mr Onnoghen, it must be said, has also not covered himself in glory. In my opinion, he should probably do the honourable thing and step down. Indeed he might have, if it didn’t feel so much like a national ambush, which is one of the things that has drawn so many to his defence. I haven’t heard many attempting to defend him or his “forgetfulness”, but rather the rule of law.
Which is why it would appear to many that this government, in its desperation to prove that its win at the last elections was not an anomaly, has adopted a scorched earth policy to win the next elections at whatever cost. And considering that Mr Buhari has apparently not accepted that he lost his last three attempts fair and square but rather appears to blame those losses on judicial decisions (“God dey” is the prayer of one who has been cheated, not one who lost) it explains why the general feeling in the country is that this election will bring us a world of hurt.