Onnoghen: Buhari cuts Gordian knot, executes coup against constitution

LESS than a week after ex-president Olsuegun Obasanjo characterised the Muhammadu Buhari presidency as a return to the Sani Abacha dictatorship, the president last Friday summarily suspended from office the Chief Justice of Nigeria (CJN), Walter Onnoghen. The president claimed to be executing the orders of the Code of Conduct Tribunal (CCT) which on January 23, 2019, asked him to swear in a replacement for the CJN. In his speech before swearing in the replacement, Tanko Muhammad, a Justice of the Supreme Court, the president chivalrously bemoaned seeing “the full weight of the Chief Justice of Nigeria descend on the tender head of one of the organs of justice under his control”. It is clear he spoke of the CCT. He also adds that “There is simply no way the officers of that court, from the Chairman to the bailiffs, can pretend to be unaffected by the influence of the leader of the Judiciary.”

Switching to accusatory mode, in consonance with the instinct and culture of his government, the president lamented that “Practically every other day since his trial commenced, the nation has witnessed various courts granting orders and counter-orders in favour of the Chief Justice of Nigeria, all of them characterised by an unholy alacrity between the time of filing, hearing and delivery of judgment in same.” Blinded by venomous rage against lawyers whom he accused of insisting “that (court) orders, whether right or wrong are technically valid, and must be obeyed till an appellate court says otherwise”, the president betrayed his suspicion of the judiciary, if not distaste for their methods. “No doubt, that it is the proper interpretation,” he acknowledged with his unfailing inquisitorial tone, “but is it the right disposition for our nation?”

Insisting that “In the midst of all these distracting events, the essential question of whether the accused CJN actually has a case to answer has been lost in the squabble over the form and nature of his trial”, the president magisterially decreed that “This should not be so”. Not done, the president adds in a tone that suggests that he knows justice when he sees it: “If Justice cannot be done and clearly seen to be done, society itself is at risk of the most unimaginable chaos. As a Government, we cannot stand by wailing and wringing our hands…” Then he launches into his default anti-corruption mode, rails against corruption, all but trying the CJN on media platforms, and convicts him without recourse to fair hearing or even appeal. Satisfied that he stood on unimpeachable ground, the president proceeded to cut the Gordian knot, leaned on the lame feet of the CCT order, and swore in the next in rank to Justice Onnoghen, the Justice he had all along wanted in the topmost judicial office in the land, Justice Muhammad.

It mattered little to President Buhari that the Federal High Court, Appeal Court and Supreme Court are all headed by the Bauchi-Gombe axis. He will of course see it, as usual, as a co-incidence, perhaps in the same meritorious way he sees the concentration of the nation’s security apparatuses in the hands of his northern compatriots. As he often says, most of those appointees are people he had not met before. The president’s backers insist it is not obligatory for him to spread his appointments, or even see the country from the expansively nationalistic prism that conduces to stability and representativeness. But the question the president has never answered, and which traducers like Chief Obasanjo often needles him with is whether he needed to be persuaded to see Nigeria’s existential issues, particularly its national question, from a wide perspective.

President Buhari anchors his suspension (which in Nigeria is tantamount to removal) of the CJN on the order of the CCT and his reading of the judicial process or, as he surmises it, judicial travesty. He says, for instance, that he deplores the alacrity with which the CJN’s lawyers and the courts were achieving their aims with “unholy alacrity between the time of filing, hearing and delivery of judgment”. The president is now widely recognised as forgetful and distracted, but even he exceeds himself when he spoke of unholy alacrity — obviously not his words, but that of a speech writer or a conspirator in the unfolding constitutional crisis in the land — between the courts, and insinuates a judicial conspiracy in favour of the CJN. Alacrity? It took more than two weeks for the CJN to get the courts to grant him some weak and tentative reprieve, from the time a former media aide of the president, Dennis Aghanya, filed a petition at the Code of Conduct Bureau (CCB) on January 9, 2019, and the stay of proceeding ordered by the Appeal Court on January 24, 2019.

In contrast, it took only three working days — January 9 and January 14 — to deliver Mr Aghanya’s petition and then arraign the CJN. Though the petition was dated January 7, the CCB received it January 9, investigated it post haste before or by January 10, and filed a six-count charge against the CJN on January 11. It was obscenely hasty, far more provocative and deplorable than the alacrity the president alluded to in his speech. And as it is characteristic of conspiracies and hurried, malevolent actions, too many loopholes were created by the government action. The president claimed to have acted upon the CCT ex parte order. By now it is well known that the president is not gifted in paying attention to both logic and details. Otherwise why would it not occur to him, even if his aides had quoted some mischievous laws, that a tribunal that is not a court of superior record could not order the dethronement of a Chief Justice? Indeed that sweeping power does not inhere in any court in Nigeria.

Even more damning is the chronology of the conspiracy against the CJN. The CCT claimed to have acted on a motion ex parte brought on January 9, 2019 by one James Akpala, an investigator of the CCB, praying the tribunal to order the CJN to step aside pending the determination of the Motion on Notice dated January 10, 2019, and for the president to swear in a replacement. Motion on Notice often comes before Motion Ex parte, or at worst the same time. Motion ex parte does not come before motion on notice as occurred in the CCB case before the CCT. Also, note very carefully that obviously, given the dates on the motions, and except the CCT made a mistake in typing its order, everything had been prepared to skewer the CJN when Mr Aghanya delivered his so-called petition on January 9. Clearly, Mr Aghanya was just a willing, idle hand to actuate a wide-ranging conspiracy that had little to do with the law and anti-corruption war.

What is also indisputable from the proceedings before the CCT is that the presidency was not even sure how to proceed from the beginning. The Motion on Notice and Motion Ex parte were obviously firs kept in abeyance until the government feared last Thursday that its conspiracy was collapsing. Nothing was said about the motions brought by the CCB’s Mr Akpala when the CCT first heard the case and adjourned twice between January 14, 2019 and January 28, 2019. Suddenly, while its jurisdiction was still being challenged, and three days before its next adjournment, the CCT granted Mr Akpala’s Motion Ex parte, when customarily, it is the injured party, the victim of oppression, that seeks ex parte orders to protect the status quo until the determination of the case. How the president still blames the CJN and his lawyers for the abuse of the judicial process is hard to understand.

There is no part of the constitution that empowers the CCT to assume the jurisdiction it claimed in the CJN case. Absolutely none, not Section 158 or 292, and not even the Code of Conduct Bureau and Tribunal Act which in Section Three enables a public officer to admit errors and make amends without being dragged before the CCT. It is unfortunate that the presidency has tried to conflate the CJN’s problem with assets declaration with the government’s anti-corruption war, to the extent of seeing everyone who defends due process as being tolerant of corruption. It is a disingenuous attempt to weaken the hands of those who have long seen the Buhari presidency as surreptitiously, but now openly, dictatorial. The natural instinct of the Buhari presidency is clearly totalitarian. It has no scintilla of democracy in its veins, and cannot have, despite its patently false claims to the contrary in his Friday speech. Indeed, it can only get worse.

No one of course suggests that the CJN had no case to answer, despite the president’s malicious inferences, however, the  constitution is abundantly clear how to deal with him, who has the power to suspend him, in this case not the president, and by what process he could be removed, in this case too, through the Senate. The clarity of the law and the constitution, particularly the role of the National Judicial Council (NJC), is to the intent that the CJN could not be tried while still a judicial officer. The president’s peremptory actions are anchored on his fears that he could not have his way in both the NJC and the Senate. He should have anticipated this a long time ago and sponsored the appropriate judicial and even constitutional reforms. After all, he had had almost two years to nurse his grudge, which he tries to paint in altruistic colours, to maturity, and find constitutional ways of tackling whatever ails him about the judiciary with which he is eternally at odds.

The president swears in his speech that he is a proponent of the rule of law and lover of constitutional democracy. There is no part of his more than three years in office, or of his response to the CJN case, that portrays him as a democrat of exponent of the rule of law. He fantasises his obedience to the unlawful CCT order as an indication of his respect for the rule of law. The public will snicker at his claims on the grounds of his appalling disobedience to court orders in the cases of Sambo Dasuki, a former National Security Adviser (NSA) more than thrice admitted to bail but still kept in chains, and Ibrahim El-Zakzaky, the Shiite leader ordered to be released and compensated by the courts, but still in chains. No one believes the president has respect for the rule of law except his speechwriters.

By embracing the CCT’s atrocious order and clearly subordinating the judiciary to the executive branch, President Buhari has empowered his government and the numerous conspirators hanging around him to gravely undermine constitutional rule. He has been honest enough not to rest his actions on any part of the constitution, but on the spurious claims and orders of the CCT. In one fell swoop, the president has managed to compromise the integrity of the leadership of the CCT, castrated the acting CJN, and poisoned constitutional democracy. Even if he reverses himself based on public protests and actions, assuming Nigerians understand that fascism begins as inexorably and surreptitiously as this, his essential undemocratic self will remain as pernicious as ever, unaffected by logical or legal arguments, and unaffected by conventions. The former CJN, Mahmud Mohammed, once warned that presidents or chairmen of tribunals, such as the Tax Appeal Tribunal and Code of Conduct Tribunal, must never be referred to as Justices. Who could tell at the time that a sitting president would sometime in the future base his illegal dethronement of a chief justice on the orders of someone who is not a justice?

No visionary president who cares about the future of his country would take these fateful steps of subverting constitutionalism, scarifying the CCT chairman and the acting CJN, and opening the country to all sorts of desperate political and judicial scheming. It can only be because, as this column maintained last week, the implications of his many actions quite seriously escape him. President Buhari’s government is used to trying cases on media platforms, social, electronic and print. Because he receives hearing and backing, he has continued the atrocious practice. He is unlikely to stop. The country campaigns to gift him another four years, despite showing his hands quite early. No people can be so remorseless and so fatalistic.

It is humiliating for everyone concerned that a controversy was stirred over the CJN matter. The president considers the CJN’s moral authority as wounded, and expected him to step aside on his own volition. His refusal to relinquish office led to the president’s drastic and conspiratorial action. The president’s address was, therefore, a litany of self-help and extrajudicial measures, unfitting for the president of the most populous black nation on earth. Nigeria faces a clear case of mindless corruption. But that corruption is not limited to only financial corruption. It also includes the kind of corruption that sees political leaders taking extraordinary and unlawful steps to short-change the society and subvert law and order. The Buhari presidency is no less guilty. It was expected to find very intelligent ways of addressing the cankerworm. It has instead chosen abominable ways of fighting the evil, ways that are bound to have painful and deleterious effects on the constitution and the future of the country.

Even though the constitution is clear on what should be done if and when a CJN is accused of misconduct, politicians and lawyers may, however, refuse to agree on how to proceed. What undermines the fight against corruption and other ills in Nigeria is not so much the provisions of the law, as the inability of those in high offices to summon the principles and intellect to fight the evils in lawful, sophisticated ways that do not damage the reputation of the country.

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