On the 19th day of January, 2019, Saturday Punch (Online) had an interesting headline: “FG asks Court to remove Onnoghen as CJN, NJC Chairman”.
Part of the news read thus: “The Federal Government prayed the tribunal for an interlocutory order ‘directing the defendant/respondent to step aside as the Chief Justice of Nigeria and Chairman of the National Judicial Council over an allegation of contravening the provision of the Code of Conduct Bureau and Tribunal Act, CAP C15 Laws of the Federation of Nigeria 2004 pending the determination of the case’.
‘An interlocutory order of the honourable tribunal directing the President of the Federal Republic of Nigeria to take all necessary measures to swear in the most senior Justice of the Supreme Court as an acting Chief Justice and Chairman of the National Judicial Council in order to prevent a vacuum in the judicial arm of government pending the determination of the case’ “.
It is for the reason of the above news that this write-up became necessary so as to consider whether or not the Code of Conduct Tribunal (CCT) actually has power(s) or jurisdiction to direct the stepping aside and or removal of the Chief Justice of Nigeria (CJN) from office or to grant any of the reliefs sought above based on an interlocutory application filed before it by another arm of government! In doing justice to this discourse, we shall consider the constitutional provisions relating to the appointment and removal of the CJN on one hand and the powers or jurisdiction of the Code of Conduct Tribunal with reference to the punishments it can impose and when it can impose same, on the other hand.
On the appointment of the CJN, section 231 (1) of the Constitition of the Federal Republic of Nigeria, 1999 (as amended), provides that it shall be done by the President upon recommendation by the National Judicial Council (NJC) and subject to confirmation of such appointment by the Senate.
On the removal of the CJN, section 292 (1) (a) (i) of the 1999 Constitution provides that, “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”.
A close consideration of the above constitutional provision clearly shows that the section has to do with the removal of judicial officers who act as heads of Courts and whose appointments are done by the President of Nigeria. The removal of other judicial officers who are not heads of courts is covered under section 292 (1) (b) of the Constitution. In the latter provision, such removal shall be done by the “President or, as the case may be, by the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct”. I repeat, this latter provision does not apply to heads of Courts whose removal must be supported by two thirds majority of the Senate or House of Assembly as the case may be.
Thus, whereas the removal of the Chief Justice of Nigeria and other heads of federal courts requires the the support of two thirds majority of the Senate, the removal of other judicial officers other than heads of federal courts does not need the approval of the Senate. In other words, the Constitition of the Federal Republic of Nigeria requires the approval of the Senate in the removal of the CJN just as it does in his appointment. This constitutional approval by the Senate cannot be shortchanged by the executive arm of government through the back door by way of an interlocutory application before the Code of Conduct Tribunal or any court at all. It therefore, goes without saying that being the Head of the Supreme Court of Nigeria, Onnoghen, can only be removed from office as CJN before his age of retirement “by the President (Muhammed Buhari) acting on an address supported by two thirds majority of the Senate”. Hence, apart from this trite procedure as stipulated in our Constitution, no other form or means of removal of the CJN or any other judicial officer mentioned in the said section, is contemplated and or recognized in the Constitution of the Federal Republic of Nigeria. Specifically, I make bold to say that, the Constitution of the Federal Republic of Nigeria does not contemplate or envisage the removal of the Chief Justice of Nigeria or any judicial officer at all through an interlocutory application in respect of an allegation of breach of Code of Conduct before the Code of Conduct Tribunal for which the person alleged against is still presumed innocent until proven guilty. See section 36(5) of the 1999 Constitution (as amended). This is what the Nigerian Constitution, the grundnorm, provides and it is supreme and binding on all persons and authorities by virtue of section 1(1) of the Constitution (as amended).
As a matter of fact, to have filed a motion before the CCT praying for the removal of the CJN pending the determination of the allegations against him as done by FGN, is tentamount to presuming the CJN guilty already and calling on him to prove his innocence before the Tribunal, which is contrary to the letters and spirit of our Constitution. It must never be!
Under the Nigerian Constitution, the Code of Conduct Tribunal has no jurisdiction to remove or to direct the removal/stepping aside of any serving judicial officer and by extension any public officer at all in Nigeria based on mere interlocutory application filed before it. In the same vein, it is not within the jurisdiction of the Code of Conduct Tribunal to direct the appointment or swearing in of a judicial officer (Ibrahim Muhammad, JSC) as acting CJN in place of another serving judicial officer (Onnoghen, CJN) based on an interlocutory application in respect of an allegation of which he has not been found guilty.
On the power(s) of the Code of Conduct Tribunal, section 18 (1) of the Fifth Schedule, Part 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that, “Where the Code of Conduct Tribunal finds a public officer guilty of contravention of any of the provisions of this Code it shall impose upon that officer any of the punishments specified under sub-paragraph (2) of this paragraph and such other punishment as may be prescribed by the National Assembly”. The guiding words in this section are where the Tribunal “finds a public officer guilty of contravention…” In other words, by the above constitutional provision, the Code of Conduct Tribunal can only impose punishment on a public officer (CJN inclusive) after (and not before) such public officer has been found guilty of contravention of the Code of Conducts for public officers. (See also section 23 (1) of the Code of Conduct Bureau and Tribunal Act, Cap. C15, LFN, 2004).
Now, what are the punishments that the Code of Conduct Tribunal can impose upon finding a public officer guilty of contravention of the Code of Conduct? Section 23 (2) of the Code of Conduct Bureau and Tribunal Act, which is also in the same spirit (but with little variations) with section 18 (2) (a), (b) and (c) of the Fifth Schedule, Part 1 of our Constitution provides thus:
‘The punishment which the Tribunal may impose shall include any of the following-
(a) vacation of office or any elective or nominated office, as the case may be;
(b) disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and
(c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office.”
A cursory look at the above provisions shows that the FGN’s application for the removal or stepping aside of the CJN before the Code of Conduct Tribunal pending the determination of the allegations against him, does not have any constitutional backup. It is very strange to our legal system as it appears. It is, to say the least, a birth of desperation in yet another suicidal assault on the last hope of the common man (the judiciary). The Tribunal has no power or jurisdiction to impose ‘punishment in the interim’ pending the conclusion of a trial before it. To allow this unconstitutional style of “fighting” corruption is to set a very bad precedent in the running of our legal system.
What is more, the Court of Appeal in NGANJIWA V. FRN (2017) LPELR-43391 (CA), held that no serving judicial officer in Nigeria can be tried for any alleged misconducts without first being subjected to the investigatory and disciplinary jurisdiction of the National Judicial Council (NJC). This is the law as it is for now which is binding on all courts in Nigeria, including the Code of Conduct Tribunal until same is upturned by the Supreme Court of Nigeria. The questions therefore are; Has the Federal Government petitioned Onnoghen, CJN for misconducts to the NJC? No! Is the Federal Government’s determination to remove the CJN supported by two thirds majority of the Senate? No! Can Justice Umar Danladi-led Code of Conduct Tribunal order the removal or the stepping aside of the CJN in fragrant disobedience to the Court of Appeal decision in Nganjiwa v. FRN (supra) as well as the ruling of an Abuja Federal High Court which ordered it to hold on until the determination of the substantive application before it? To do so would amount to judicial impenitence or rascality!
Thus, it is clear that the whole drama about Onnoghen’s case is nothing but a persecution of a perceived obstacle in the manipulation of the judiciary in respect of post-2019 election petition cases which are bound to occur. This must not be allowed. The executive arm of government in Nigeria under the regime of President, nay, General Muhammed Buhari, must not be allowed to continue to harrass, intimadate and desecrate other arms of government with such impunity and shamelessness. The other time time, it was a failed “police coup” to overthrow the leadership of the National Assembly, and today, it is a desperate plot to remove the CJN through an interlocutory application before the Code of Conduct Tribunal. This prostitutional crackdowns on on our cherished democratic institutions must stop, and stopping same must be now.
(Solomon Akobe is a Constitutional Lawyer, formerly with N.O.O. Oke (SAN) & Co., Ibadan, Southwest, Nigeria).