On Onnoghen’s suspension

The suspension, last week, of the Chief Justice of Nigeria (CJN), Walter Onnoghen, by President Muhammadu Buhari has sparked a series of debate across a spectrum of Nigerians as to its constitutionality or otherwise.

As a matter of fact, reactions trailing Justice Onnoghen’s suspension and the immediate swearing in of Ibrahim Tanko Mohammed as an acting CJN are suggestive of a nation’s democracy on the tenterhooks.

 It is instructive that Onnoghen had challenged the jurisdiction of the Code of Conduct Tribunal (CCT) to try him on charges bordering on the breach of the Code of Conduct for public officers. Curiously, while the CCT is yet to rule on the issue of jurisdiction, which is foundational to the commencement of any trial, the tribunal went ahead to issue an order based on an ex parte motion to suspend Onnoghen.

Although President Buhari said he removed Onnoghen based on an order of the CCT dated January 23, 2019, legal opinions are divided on the president’s powers to suspend the CJN. Yusuf Ali, SAN, stated that the National Judicial Council (NJC) remained the body empowered by the constitution to suspend the CJN.

He said, “The constitution is clear on who can remove the CJN and in what circumstance. No person, individually, can remove the Chief Justice of Nigeria, no matter how highly placed. The law is clear on how the CJN can be removed and even how he can be suspended. It is the NJC that can suspend a serving judge or justice.”

The Nigerian Bar Association (NBA) in a statement by its President, Mr Paul Usoro (SAN), described Buhari’s action as a coup against the Nigerian judiciary. “The action of the Executive portends a slide into anarchy and complete deconstruction of the rule of law and due process. It amounts to an absolute breach of the Constitution and the usurpation of the powers of the Senate and the National Judicial Council”.

The United States and the European Union said they were “deeply concerned by the impact of the executive branch’s decision to suspend and replace the chief justice and head of the judicial branch without the support of the legislative branch on the eve of national and state elections.” However, the Chairman of the Presidential Advisory Committee against Corruption, Prof Itse Sagay (SAN), said Buhari was legally empowered to suspend Onnoghen.

He said, “It is constitutional. If you look at Section 292 of the constitution, paragraph one clearly makes provision for that where the chief justice is guilty of a code of conduct. “The provision is very clear. It states that where the chief justice is guilty of a breach of the code of conduct, he can be removed by an address of two-thirds majority of the Senate. It is quite clear that the Senate itself cannot initiate that address; there is only one person who can do that and that is the President.”

 Section 292 (1) of the 1999 Constitution of Nigeria (as amended) reads in part, “A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances – “In the case of 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.”

 The Third Schedule Part 1, section 21 (b) also vests the National Judicial Council (NJC) with the power to recommend to the president the removal from office of the CJN. We are miffed by the fact that the president did follow any of these provisions thereby tending to render his action void and a nullity. It bears emphasing here that the judiciary, just like the executive and legislature, is an independent arm of government created by section 6 of the constitution.

Consequently, the CJN is to the judicial arm of government what the president is to the executive arm which implies that Mr President cannot appoint or remove the CJN unilaterally. The constitution has explicitly stated the procedure for the appointment and removal of the CJN and anything inconsistent with the constitution is void to the extent of its inconsistency.

By Section 231 (1) and (2) of the constitution, the appointment of the CJN requires the compulsory involvement of the three arms of government. The president appoints the CJN on the recommendation of the NJC subject to the approval of the Senate. We are, therefore, in sync with the view that President Buhari should have acted within the ambit of the law in the suspension of Onnoghen. While urging the president to redress the anomaly, it is expedient to call on the Senate and the NJC to defend the rule of law, the sanctity of the judiciary and Nigeria’s fledgling democracy. This must, however, be done devoid of any form of partisanship or vested interest.

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