CCB, CJN and indeterminate future By; Idowu Akinlotan


It is all but certain that the next few weeks before the fateful 2019 elections, particularly the presidential election, will be pockmarked by bitter wrangling between opposing parties and open, provocative plots by the government. It is also certain that the All Progressives Congress (APC), as evidenced by the Information minister’s Friday disclosures on the collapse of Bank PHB, will be on the offensive throughout, and the Peoples Democratic Party (PDP) will be on the defensive throughout. If the APC triumphs as a result of its relentless chicaneries, it will be because voters are not too discriminating to read between the lines of the ruling party’s propaganda. But if the PDP escapes the guillotine by the skin of their teeth and wins the poll, it will be because voters are excessively indulgent. Faced with a Hobson’s choice next month, a choice the judicious will find very unpleasant to make, perhaps the most unpleasant since the founding of Nigeria, voters will troop to the polls in fewer numbers than they used to, hold their noses, and cast their ballots with a hiss and a regret.
To make the outcome certain, however, the Muhammadu Buhari presidency in quick succession last week dragged Chief Justice Walter Onnoghen before the Code of Conduct Tribunal (CCT) for offences connected with non-declaration of assets, and are lying in wait for Atiku Abubakar, currently travelling in the United States, whom they accused of having a hand in the collapse of Bank PHB. There will be more jokers and shenanigans in the coming days. For now, the most topical of all the subterfuges orchestrated by the presidency is the Justice Onnoghen case, a case that has bitterly divided the country into almost two equal halves, with lawyers and laymen disputing the propriety of the case using complicated and extenuating legal and moral arguments. The case is anchored on two counts: one is that the government has acted in good faith on point of law, and the other is that the government has acted mala fide both morally and legally. The gravamen of both counts is that the Buhari presidency, according to some critics, has been reckless and short-sighted.
Aware that one half of the country has stridently argued that the case against the CJN was a conspiracy by the presidency, a conspiracy anchored on Justice Onnoghen’s alleged opposition to the government and refusal to do the government’s bidding, Vice Presidnt Yemi Osinbajo has suggested on his honour that the president did not even know until the evening of January 12, 2019 that the CJN would be dragged before the CCT. He did not indicate how the president got to know. However, according to him, “I can tell you for a fact that (the president) did not even know about this until Saturday evening.” Then he added: “He did not even know that there will be any kind of arraignment until Saturday evening. He has said categorically, ‘do not interfere with whatever institutions are doing’; sometimes, it has consequences such as we have today; such that people say how can such an important person be subjected to a trial without the federal government knowing? But I can tell you without any equivocation whatsoever that he was not even in the know because it is a specific instruction that he gave.”
The public doubt the vice president because the federal government does not have a tradition of not micromanaging the country and subordinating and subjugating the country’s institutions. They are uncomfortable with the legislature and judiciary running independently, especially at cross-purposes with them, and are hostile to and wary of anyone in government having a mind of his own. Though the Kaduna State governor, Nasir el-Rufai, has tried to corroborate the argument of the vice president, few people think he is really convincing. According to Mallam el-Rufai: “Why should the President know about the prosecution of anyone? Let us please stop personalising institutions. Won’t you be worried if the President is worried about prosecution? Institutions should be allowed to function. I am the governor of Kaduna State. The constitution requires that I declare my assets before being sworn in. Also, the constitution states this specifically, in plain language. This is not law; we don’t need law to tell us this. I don’t have to know if the Attorney-General of Kaduna State goes and murder or rape someone, and the police arrest him; I don’t need to know. They should charge him to court. Institutions should be allowed to work, and we should stand up to protect the integrity of institutions. Saying that the President doesn’t know, I think it is a compliment to the president; it shows that he does not interfere with institutions and doesn’t get involved in it.”
Could the vice president and Kaduna governor be right? The balance of argument shifts badly against them on closer examination. Dennis Aghanya, the civil society activist who authored the petition against the CJN, was a ranking member of the president’s former party, the Congress for Progressive Change (CPC). He was a media aide to the president in their CPC days, and publicity secretary to the same party. Since 2015, he has had a history of siding with the president on controversial issues such as spending money to buy arms without appropriation, and was a chief convener of one of the president’s myriad support organisations. No one has resolved the question of how Mr Aghanya procured the CJN’s assets form. Crucially, too, Mr Aghanya presented the petition to the CCB on January 9, 2019, and in two days, the bureau had concluded investigations into the matter, obtained a badly worded and panicky response from the CJN, and then filed a six-count charge at the CCT. The pro-government forces make light of the indecent and unprecedented haste, insisting that the public should instead focus on the CJN’s admission of guilt, an admission they have ridiculed. But they are mistaken.
Even more damning, say critics, is the synchronisation between the Justice minister’s furiously fast directive to the Nigerian Financial Intelligence Unit (NFIU) to freeze the CJN’s accounts and the other actions taken against the eminent jurist. The directive to freeze the accounts was dated the same day the trial was to commence, January 14, 2018, implying a preconception days or weeks before the execution. The NFIU also received the letter the same day. The entire affair was obviously synchronised. By Thursday, January 17, the federal government had filed another motion before the CCT asking the court for an interlocutory order to compel the removal of the CJN and for the president to replace him with the next in rank, Justice Ibrahim Muhammad, their preferred candidate for the great office since the departure of the former CJN, Justice Mahmud Mohammed, in 2016. Clearly, the intention is to attack Justice Onnoghen on many fronts until he caves in. Whether he will throw in the towel is not known, however. But there is no doubt that the attacks are coordinated.
Prof Osinbajo may suggest that the president did not know about the Onnoghen arraignment until two Saturdays ago, and Mallam el-Rufai may applaud that unsubstantiated fact, thereby indicating simplistically that it pointed both to the independence of institutions under President Buhari and the president’s own sagacity in letting things run on their own, but few people will believe them. The president’s Justice minister was deeply involved in the plot, despite knowing what the law says on the matter. And because he unfortunately holds the two offices of the Justice ministry and the Attorney General of the Federation, it is totally inconceivable that a Justice minister would hide such a huge case that was certain to reinforce the president’s insensitivity to the South-South. No one knows who the arrowhead of the conspiracy is; but there was undoubtedly a conspiracy. Indeed, the argument about whether there was a conspiracy or not has not even weighed on the minds of the anti-Onnoghen forces as much as the CJN’s so-called admission of guilt and the wrongdoing implied in the controversial assets declaration, especially at a time when the anti-corruption war had become the main focus of public discussions.
The coordinated but controversial case against the CJN clearly shows that the Buhari presidency does not expect that the case would be resolved in their favour in the courts. In fact, they expect the case to end either in stalemate or, going by precedent, in favour of the defendant. The Justice minister is not so unlettered in law that he does not remember the acquittal eight months ago of Supreme Court Justice, Sylvester Ngwuta, who was also accused of concealing some of his private assets and doing private business contrary to the provisions of the law. In dismissing the case, the same CCT, before which the CJN has been brought, concluded in a ruling read by William Atedze, a member of the three-man CCT panel, that “What this means is that any allegation of official misconduct will first have to be referred to the National Judicial Council to the exclusion of any other body, court or Tribunal”. And citing the Court of Appeal verdict in the Justice Hyeladzira Nganjiwa case, further held that “Judicial precedent is binding for as long as it is subsisting and until such precedent is overturned by a higher court”.
Those who support the case against the CJN hiss at the deployment of technicality by the Justices to escape censure. They also point out that in the Justice Ngwuta case, the CCT made a Freudian slip of drawing attention to a distinction between misconduct, as contained in the constitution and official/judicial misconduct, which is not in the constitution. They suggest that the CJN case is one of general misconduct, which the CCT has jurisdiction over, not a misconduct committed in the discharge of official duties which must first be addressed by the National Judicial Council (NJC). But even the most liberal interpretation of the relevant provisions of the constitution dealing with how a judicial officer can be removed does not draw a distinction between ordinary misconduct and judicial misconduct. The constitution speaks of misconduct, nothing more and nothing less. Furthermore, there is no part of the Third and Fifth Schedules of the constitution, nor of Sections 158 and 292, that makes the trial and removal of Judicial officers a complex affair. The provisions may be inadequate — and this column thinks they require amendment — but they are not complicated. Until an amendment is done, however, the law remains the law. The Buhari presidency knows this; and that is why it has preferred to try the case in the media, hoping that public sympathy and pressure would help force the resignation of the CJN.
The Presidency has tried to give the impression that the CJN case is simply and solely one of fighting corruption. This is not true. The case, despite the legal lacunae enveloping it, is more of politics than anything else. Since 2015, the Buhari presidency has indicated that it trusts no one with sensitive offices but those with kinship ties. Sadly, the choices have been sectional and iniquitous to fairness, leading to allegations of insularity and ethnic bigotry. The government, some suggest, expects the 2019 election to be tight and perhaps controversial, and might end in the courts. In addition, there are a number of pre-election matters that require the input of the judicial hierarchy. The government worries that nothing should be left to chance, hence the rather clumsy efforts to streamline and control things, regardless of public reservations and opposition.
If, without conceding, the vice president and Kaduna governor are right that the president was not part of the decision to haul the CJN before the CCT, it may mean more frighteningly that the popular impression of a president not really in control of his government may be true after all. Those of his household who draw this conclusion have shouted themselves hoarse about the hijack of the presidency by cabals, and those who describe the president as inattentive to details and the affairs of state may not be as malevolent as presidential aides have campaigned. The president’s views and arguments on the farmers/ herders crisis, the replacement last September of the acting director-general of the Department of State Service (DSS), Matthew Seiyefa from the South-South, with Yusuf Bichi from the North, and the skewing of security appointments in favour of the core North have all given indication of a gross lack of depth and capacity. The CJN affair may very well fit the bill.
Last week’s performance of the president on the Nigerian Television Authority-organised town hall meeting is an example. It was bad enough that nearly all the answers given by the president were inadequate and uninspiring; it was much worse that he hardly indicated he understood most of the questions. It was not stage fright that numbed and stifled him; he has been around public office for far too long to be discomfited by interviewers, even merciless ones. It had to be a lack of profundity and too much jadedness. The country may in fact be dealing with a leader who cannot seem to tackle issues holistically, nor, more damningly, appreciate the import of his decisions, policies and appointments. There is corruption in the judiciary, as in nearly all facets of the society. But the president has had about four years to inspire lasting reforms to tackle the rot and fight corruption in such a manner that a leg can be amputated without killing the patient. He chose to employ mundane tactics, such as orchestrated public lynching, aka media trial, and promote a disconcertingly archaic and sectional style that humiliates the country and black people everywhere, and hamstrings his own government.
There will be no let up in pressuring the CJN to relinquish office. The Justice minister, who has shown a disturbing proclivity for regime protection than advancing the cause of the law and democracy, has already indicated in the government’s motion before the CCT whom they wish to replace the CJN. Justice Onnoghen may have surprised everyone by his response to the CCB investigations, a response he is unlikely to be proud of in the years to come, and many Nigerians may have emotionally already concluded, as is usual in media trials, that the CJN is guilty of corrupt practices. But the framers of the constitution, as exampled by Section 158 (1), were anxious to preserve the independence of, and make co-equal, the three arms of government.
The Buhari presidency, despite the sham and intemperate support Mallam el-Rufai gives them, has done nothing visionary and substantial to preserve, protect, and advance the cause of the constitution, nor, worse, help the country make a ‘more perfect union’. For the sake of the future, Nigerians must not pretend to be unaware of the devices of the presidency. They must not because of their position on Justice Onnoghen inadvertently help the Buhari presidency weaken an already imperfect constitution and expose the people needlessly to creeping totalitarianism. Making Nigeria great transcends the sometimes insular goals of the presidency, any presidency for that matter.
Culled from TheNation