The beginning of an autocracy

When Muhammadu Buhari won the 2015 presidential elections, the country was deeply divided between the All Progressives Congress (APC) and the People’s Democratic Party (PDP). As I remarked then, the results of the elections showed that Buhari was not the will of all Nigerians. Give or take a couple of million votes and PDP could have won. In his admirable inaugural speech, Buhari seemed to be aware of this division, making his now famous assertion: “I belong to everybody and I belong to nobody”. He also reached out to the country’s south-south promising to “invest heavily” in amnesty projects and extending his “hand of fellowship” to them.

But like mobile data on an open hotspot, this availability did not last long. In July 2015, when he was questioned on the Niger Delta amnesty and inclusive development, he answered: “I hope you have a copy of the election results. The constituents, for example, who gave me 97% cannot in all honesty be treated on some issues with constituencies that gave me 5%.”Across Nigeria, politically innocent hearts were broken.

But this was just the beginning of walking back promises and shifting goal posts. The APC media machinery, which had hitherto blitzed Nigerians with promises of paradise commenced a process of hurried denials. One of the first casualties of these repudiation of campaign promises was the infamous “100 Days Covenant”. Once there was nothing to measure, Buhari was able to complete his first hundred days with no targets, no goals, and no problems.

For those who had problems with “the new sheriff in town”, Buhari’s media team had a new label: “wailing wailers”. By September 2015, Femi Adesina was all over the news denouncing all critics of the government. In December 2015, Ibn Na’Allah of the APC would sponsor a bill to legislate a jail term for any person who used social media (including Whatsapp and texts) to make “an abusive statement” against government officials. Fortunately, pressure from civil society killed that attempt. Yet, these were early warning signs of coming intolerance towards Buhari’s critics.

Those who  enabled Buhari’s madness

Less critical Nigerians simply entered a phase of Buhari praise and worship. Politicians and other groups beat a path to Aso Rock to pledge loyalty and assure Buhari of their support in his new fight against corruption. The Nigerian Labour Congress, under Ayuba Waba, strayed from pressure group into partisan fan club and went to pay homage to Buhari, even demanding a death sentence for those convicted for corruption.

In this way, Nigerians gave Buhari a latitude arguably few past leaders have received. When Buhari failed to appoint a cabinet for months, Nigerians defended him. When he appointed alleged corrupt people into his cabinet, Nigerians excused this. When he failed to come up with an economic blueprint for months and then drove the economy into a recession through arbitrary fiscal and monetary policies, Nigerians justified it as a consequence of anti-corruption. “Corruption is fighting back”. When Buhari disappeared for months on medical tourism without any communication, Nigerians supported this. And when the unjustifiable surfaced, like the 2016 budget (so-called Budget of Hope) which was peppered with waste and inconsistencies, everyone was blamed except Buhari.

Nigerians slid into a habit of blaming “16 years of PDP” and Jonathan’s government, blaming Buhari’s ministers, blaming his media team, his advisers, anyone but Buhari. Buhari himself did not volunteer to take responsibility for anything. It was as if Nigeria removed PDP just so that it could excuse APC from working. Brave social critics under Jonathan would timidly criticise Buhari by first affirming their support for his regime and denying any connection with PDP. If Buhari ever believed himself to be a tin god, Nigerians affirmed this between 2016 and 2017.

A regime of sorrow, tears, and blood

And what of the grand fight against corruption? As early as 2016 it was clear, to those who wanted to see, that the government was keener on blackmailing critical or dangerous opposition than on investigating, prosecuting, and trying corrupt public officials across board. The rule of law was not observed. The capacity of federal policing, investigating and prosecuting systems was not improved. The judiciary was not strengthened. Buhari never took unprompted action against corrupt party and cabinet officials. In fact, the Buhari administration embraced former PDP stalwarts, forgiving their sins once they became APC team players. The fight against corruption was dead on arrival.

What of the fight against insecurity? For those who could see, it was clear that the president was keener on maintaining state security in the Niger Delta where oil assets were located, than on safeguarding human security across the country. The government went after the Independent People of Biafra (IPOB), the Niger Delta Avengers, and other similar groups with a passion matched only by the administration’s lukewarm attitude to other security challenges. Boko Haram continues to attack targets at will while the presidency censors information and ambiguously insists that the group has been “technically defeated” yet, as late as 2018, still requests funds to combat the terrorists. Similarly, an escalating decades-long conflict between pastoral herders and farmers over grazing routes is still troubling towns and villages in the country’s middle-belt. A recent attack by herders in November 2018 left up to 1,801 persons killed and 50,212 others displaced in Plateau state.

What of the grand plans for the economy? In May 2016, Buhari’s government raised the pump price of fuel to 145 naira per litre, outdoing the 141 naira suggested by the Jonathan era that sparked the Occupy Nigeria protests. This time, there was just a whimper of protest from a cowed civil society. The NLC tried to switch into role as a pressure group but it was too late: its call for a general strike went flat. By the end of 2016, Nigeria’s economy had gone into a recession and the country is still suffering from the effects of this. Today, the unemployment rate is at 23.1 per cent, increasing from 18.8 per cent in the third quarter of 2017. In 2018, the World Poverty Clock reported that 86.9 million Nigerians lived in extreme poverty, almost 50 per cent of a population of 180 million.

To keep the people docile, Vice President Osinbajo started public relations rounds in 2016, selling dreams of the Promised Land. On one occasion in October 2016, the vice president preached: “We are on our way out of the wilderness. We should not be like the children of Israel when he took them out of Egypt and after a few problems, became grumblers-in-chief”, likening critical Nigerians to rebellious biblical Israelites.

If the people do not constantly criticise the government, the government will start criticising the people. Buhari was good at arraying criticism against Nigerians while refusing to take criticism. He deplored the Nigerian people several times, calling us lazy, fraudulent and entitled, failing to see his own outbursts in front of a foreign press as a reckless lack of self-discipline by a supposed representative of a country. When he got a chance to represent Africa and confront Donald Trump on his “shithole countries” remark, Buhari dodged the issue.

2017 defined Buhari’s disdain for human life. His administration was racking up an increasing mountain of dead bodies. A massacre of members of the Shiite sect in 2015 by the army killed 300 people including children. A 2017 bombing by the air force of an IDP camp in Rann had left 167 people dead; a similar bombing in Numan killed 86 people. Till date, there has been no accountability for these crimes. Meanwhile, the number of dead continued to rise: in Agatu, in Southern Kaduna, in Udeni Ruwa of Nassarawa state, in Demsare, Dikajam and Taboungo areas of Adamawa state, in Buruku of Benue state, in Dori and Mesuma of Taraba state. Nigeria’s towns and villages flowed with the blood of innocents. But Buhari’s administration glibly responded that the body count was not yet as high as those under the PDP.

How to fix a terrible regime

By the end of 2017, it had become clear to admirers who had a conscience that the Buhari administration was unsustainable for the wellbeing of ordinary Nigerians. On social media, previous voters and supporters began a trend of repudiating their decision to align with the APC government. Within the political elite too, there was a perceptible shift in the power blocs. Obasanjo penned a criticism against Buhari in January 2018, officially launching the election season and a rash of elite-sanctioned defections from the APC. But rather than listen to criticism from both ordinary Nigerians and the political elite, Buhari’s government only consolidated its grip on power, favouring nepotism in the staffing of executive positions and attempting to overwhelm the judiciary, the legislature, and critical press and civil society through police intimidation and media trials.

But one day is for the owner. On Saturday, February 16, Nigerians will go to the polls to essentially cast a referendum on this government. In December 2014, at the height of the campaigns, I asked my readers whether the removal of Jonathan’s inefficiencies was worth the risk of a Buhari autocracy. At the time the answer was a toss-up for many people, including myself, who saw no good choice between either men: a dangerous position to be in. But today, only the very stupid or the very sycophantic will claim not to see the nakedness of the current emperor.

In 2015, Nigerians gave Buhari a chance to redeem his dictatorial image and a second chance to commit himself to the equality of all, social justice, and the rule of law. He blew it. Buhari does not deserve a third chance. He deserves nothing more from Nigerians.

Source: www.ayosogunro.com 

The Section on Legal
Practice Law Journal (SLPJ) is a high impact peer review publication of the
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Practice

1 Examples are provided
below as guides;

Books

Goldface-Irokalibe, I.J.(2007)
Law of Banking In Nigeria. Malthouse Press, Lagos, Nigeria.P.3

Journal

Nwabuoku, M.O.I, (2018)
Unmasking the Big Masquerade Called Ex-parte Injunction In Nigeria: Emergent
Issues and The Law. Section on Legal Practice Law Journal, Vol.4, p. 105.

Case Law

Chief Livinus Ezemegbe vs,
The Nigerian Stock Exchange & 1Or. (2009) 3 NISLR 112.

Statute

Companies and Allied Matters
Act, CAP 124, Laws of the Federation of Nigeria. Section 18.

Electronic/Web page

Denwigwe, D.C, Guide to
Fundamental Rights Enforcement in Nigeria. http://www.slp-nba.html 
Retrieved October 21, 2018.

NIGERIAN BAR
ASSOCIATION (NBA)
National Secretariat:

NBA House, Plot 1101
Mohammadu Buhari Way,

Central Business District, Abuja,
F.C.T, Nigeria
Tel: + 234 (0) 810 820 8068

The Nigerian Judiciary and
by extension the Nigerian Bar Association has always been revered and regarded
with the utmost respect. Looking back at the time when Jurists such as Justice
Kayode Eso and legal titans such as Timi – The – Law practiced in this jurisdiction,
one can say those were the good old days.

However, currently things
are not so good and the tales of woe within the Bar and Bench can be traced to
the political class, who have invaded our honourable chambers with the poisoned
wine.  Of the 3 arms of government, the Judiciary
is the most reserved as our learned justices cannot so powerfully use the media
like their counterparts in the Legislature and the Executive. Moreso, the
Judiciary is guided by a code of ethics and the rule of law, one thing we can
debate is lacking in our political class who make up the Legislature and leadership
in the executive.

Many Nigerians complain
about the slow process of justice and sometimes the inability to get justice.
This is because the Executive made up of past and present Presidents and
Governors have bastardized the process with the intention of keeping the
Judiciary under their thumb. For instance, why have State Governors blatantly
refused to ensure the financial independence of the Judiciary but have been
satisfied to allow their Chief Judges come to them with begging bowls. No
State Judiciary can buy cars for their Judges without approaching the Governor,
this is an intentional whim of politicians and the Executive to silence the
voice of the people.

President Buhari who leads
the current Federal Government is no exception as since he entered power in
2015, his government has waged a war of control over the Judiciary. A war that
began with the invasion of the homes of various Justices, a media trial and no
convictions for lack of evidence. The most recent being the illegal suspension
of the Chief Justice Of Nigeria, Hon. Justice Walter Onnoghen and the rationale
behind the unlawful suspension is exhibited in the speech of His Excellency
where he stated and I quote –

“ It is no secret that this government
is dissastified with the alarming rate in which the Supreme Court of Nigeria under
the oversight of Justice Walter Onnoghen has serially set free, persons accused
of the most dire acts of corruption, often on mere technicalities”.

From the above it can be
seen that the President wants the Chief Justice of Nigeria, not only to give
judgments that are favourable to his government but for the CJN to meddle in
the trials before his court and most importantly to ignore the provisions of
the law and due process by ensuring a conviction by all means. An act which is
in fact an abuse of power. Certainly, one must wonder if with the imposition of
the acting Chief Justice, President Buhari may have found his man.

With this background, one
must salute the 20 Senior Advocates of Nigeria, who have risen to offer
themselves as champions and titans for the rule of law. For in their joint
statement, they have stated theirs is a cause to reform the Bar and Bench by
engaging with relevant stakeholders. Most especially the Nigerian Bar
Association, the body recognized to act on all things bordering on the welfare
of lawyers.

It is believed and hoped
that though a number of the 20 SANs did not support the current NBA President
in his elections, they have put aside all resentment from the loss and are now
willing to work with the NBA President to ensure proper reforms are put in
place, as to do otherwise would be to act like the politicians who have
continued to disguise self interest as national interest and buried the Rule Of
Law under the altar of political expediency.

Furthermore, it is hoped
that they will engage the Judicial Reform Committee, most recently Chaired by
the Learned Silk, Olisa Agbakoba SAN and the Regulation of Legal Profession
Committee chaired by Tony Idigbe SAN. Most importantly, well – meaning
advocates of reforms should key into the programmes of those committees.

Lastly, we must all work
together to remove politics from our judiciary.

Photo – Cross Section of Senior Advocates OF Nigeria
Photo Credit – www.dnllegalandstyle.com 

@Legalnaija 

What are the intentions of the learned silks who orchestrated this reform? If it is not self seeking why are they not collaborating with the leadership of the NBA for a better or the said reform?

 It is crystally pellucid with due respect to the undersigned learned silks, the disposition, allegiance and position of most of the SAN’s who signed this ‘reform’  shows that they are not in support of the present leadership of the NBA. This is more of a tussle against a constituted authority,the NBA,than a reform. My opinion.

These questions are directed to the silks that signed this ‘reform’:

1.Wouldn’t it have been better for the silks to liaise with the NBA for a better reform?

2.Majority of the silks who signed the said reform move, did not support the present leadership of the NBA and they have on several occasions displayed their disgust and hate for the PU administration. Is the said reform not geared towards antagonising the NBA for personal aggrandisement?

3.Are these silks showing a good example to young lawyers in obedience to constituted authority as enshrined in the NBA bye laws?

4.Are these silks having the backing of The Body of Senior Advocates of Nigeria?

5.Under whose authority are they operating to bring about the desired reform to our justice sector system, without the backing of the NBA?

6.Will this not amount to ‘treason’ against your Association?

7.If most of the silks who undersigned, had their preferred candidate at the helm’s of NBA affairs. Would they have signed this reform? or collaborate with their candidate to build a better association?

8.Why is there more rancour, envy, bitterness and jealousy in the Inner Bar than we have at the outer Bar?

9.Did the undersign truly represent unity and One Nigeria in their composition?

10.Can the undersigned learned Silks in their translucent moment, state that this Present administration hasn’t been doing well in piloting our affairs?

11.Are lawyers from the outer Bar not knowledgeable enough to drive the said reform? Why only learned silks?

How good and how pleasant it would be, before God and man, to see the unification of all Nigerian lawyers. Most especially the learned silks.

Our strength should be In our diversity and struggle. laced with our bond of been learned and our camaraderie.

We need to shun hatred, backbiting  and pull him down syndrome. If he is down *”na wetin you gain”* .The success, prestige, good image, and potency of NBA should be the pursuit of every member thereof. 

Even if I do not like the face of the President, I am bound to cooperate with him,criticise him constructively and don’t go against the decisions of NEC *(@Bayo Akinlade, lkorodu Chairman)* for the rest of his tenure. By that I am not doing him a favour, but myself. For the glory of the association is the glory of the individuals who make up the association.

I find strong wisdom, in the words of MR. A. B MAHMUD,SAN. OON

*”We must not allow anything to distort our unity as an institution. We must come out strong and united,let us be cautious not to divide ourselves.”*

If our learned silks are sincere,without any bias or ill motive,they should join hands and forces together with this present administration for a better reform of our Association and the Judiciary.

*#kindness is the language the blind can see#*

Just passing bye,what do I know, am just a young lawyer.

Yours, in truth.

Ogaga Emoghwanre, Esq

I have read that some 20 senior lawyers want to reform the legal profession. There is nothing wrong with reform. I Iove genuine, selfless and evenhanded reforms. My problem is we must be careful so that we don’t mistake rebellion or self-serving activities or initiatives for reform. 

I have NOT seen any genuine move towards any credible reform because any attempt at reform without rule of law is doomed to derail. One Major way the Justice sector could be reformed is by the NBA setting up a Committee to that effect or by convening an all-stakeholders’ Conference to dispassionately discuss the real such issues. Reforms do not come through the back door. 

Anyone who wants reforms in the justice sector should go through the right channel and within Rule of law. The Nigerian Bar has a Leadership. Everyone ought to cooperate with the existing Leadership.  *If we NO LONGER want our current Bar Leaders, we should follow due process of law and remove and replace them.* It is allowed. But until then, we have a duty to respect our leaders. And to make disinterested suggestions and offer constructive criticisms aimed to achieve progress for the bar and Bench. Else, I remind us that One good turn deserves another. Let’s not forget that what goes round comes round.  

I am aware that NBA currently condemns and denounces  all acts and forms of corruption. *The day NBA Leadership supports any corrupt person, NBA loses my support.* Because corruption is a cankerworm. However, corruption extends beyond stealing of money or public funds. Abuse of and desecration of the Constitution and rule of law is a worse act of corruption.* Corruption can only be effectively dealt with within the ambits of rule of law, due process, evenhandedness and impartiality. 

Anything other than that is JUNGLE JUSTICE and totalitarianism which would take us back to the dark ages of Might is Right. And I assure you that NO Nigerian is safe under such a crude system. 

NBA’s current stand on CJN Onoghen’s is RIGHT in my view. NBA wants all things to be done according to laid down legal processes and procedures. The axe of justice may grind slowly, but it sure will get to its destination successfully. NBA’s position, if I get it right, is that if CJN Onoghen is found to be corrupt, there’re LEGALLY ESTABLISHED procedures for disciplining the CJN or for removing or suspending the CJN and for punishing him. If what we are now saying is that anyone accused (but not proven to be corrupt) could or should be immediately taken and LYNCHED, then let’s note that no one among us (citizens) is safe. 

I will illustrate with a brief conversation held between *William Roper* and *Sir Thomas More* as reported  in the book, *A Man for All Seasons,* by Robert Bolt:

*1⃣William Roper:* 

“So, now you give the Devil the benefit of law!”

*2⃣Sir Thomas More:*

 “Yes! What would you do? Cut a great road through the law to get after the Devil?”

*3⃣William Roper:* 

“Yes, I’d cut down every law in England to do that!”

*4⃣Sir Thomas More:*

“Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

This is just to illustrate to us that society is at an end the very day you put a stop to supremacy of rule of law.  Indeed, to call for suspension of the operation of rule law, the only safeguard for a sane society, is to call for enthronement of the worst form of corruption! Any action or decision of the people, or of leaders or of anyone else, which goes contrary to rule of law is an anathema, a threat to the very foundation of society and National security and an invitation to chaos. 

The greatest and safest way to civility and progress for any society/nation is to embrace rule of law as its inviolable creed, to which both the leaders and the led are subject. A society that ignores rule of law welcomes rule by arbitrariness, the subjective predilections of people in authority. 

Rule of law is the basis for any constitutional democracy. And without the rule of law in democracy, you have chaos. We cannot build foundations of a state without rule of law. The clearest way to show what the rule of law means to us in everyday life is to recall what has happens when there is no rule of law.

Further, IS NIGERIA’S JUSTICE SECTOR SEPARATE FROM NIGERIA? It a big question we often mischievously ignore. My humble take: I agree that Nigeria’s justice sector needs reform. Yes. But Nigeria itself and its system of governance are in much more more urgent need for radical reforms. When you reform Nigeria and its style and system of governance, you’d get/have the best justice delivery system in the world. 

Our justice sector is part of a rotten society. You can’t separate one from the other. Clean up the Nation and rid it of ethnicity, tribalism, religious bigotry, oppression, political persecution and suppression of opposition, and other ills that currently bedevil and threaten Nigeria’s governance existence and, i assure you, you’d get the  type justice sector and system you want. As Paulo Coelho observed, “… everything is connected,  all the roads meet, and all rivers flow into the same sea.” 

Finally, 

*There’s no profession without bad eggs.* We see them in all professions. In the legal profession, we should continue to weed them out until we’re totally clean. Therefore, let misbehaving judges and Lawyers be PROMPTLY dealt with according to law. That’s the best reform. Let’s not label the entire Nigerian judiciary “corrupt” simply because of the conducts of some bad judges. Let’s not see all Nigerian lawyers as corrupt simply because some lawyers are found to misbehave. You don’t set an entire house on Fire because you want to catch one thief inside the house. 

That’s wrong procedure. If a lawyer or judge is found to be corrupt, let him face the law and let him be punished accordingly, to serve as a deterrent to others. The best reform is to quickly bring an alleged corrupt lawyer or judge to book, according to laid down legal procedures. We have enough laws and rules to guide us. Let’s respect our leaders . And let’s route proposed reforms in the legal profession through appropriate channels. Rule of law is paramount because justice, though due to the accuser and the society, is due the accused also.William Orville Douglas rightly stated, the function of the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; his function is to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial.

Oftentimes, we hear much of people’s calling out to punish the guilty; but very few are concerned to clear the innocent (Daniel Defoe).

Lets tell ourselves the truth and stop all these shenanigans and grandstanding for selfish, partisan or sectional goals. 

I rest my case. 

I am,

UDEMS. 

It is now a week to the day since Major General Muhammadu Buhari (Rtd) the 15th Nigerian Head of State and the 6th to be democratically elected, announced the purported suspension of the Chief Justice of Nigeria (CJN), Honourable Justice Walter Nkanu Onnoghen and contemporaneously swore in the next senior Justice of the Supreme Court, Justice Ibrahim Tanko Muhammed as acting CJN. 

The President informed Nigerians that he derived imprimatur from an order of the Code of Conduct Tribunal (CCT) granted on 23rd January 2019. Predictably, the President’s actions generated an outpouring of reactions most notably from the Senate President and Speaker of the House of Representatives; the major opposition candidate and former Vice President, Atiku Abubakar; the Nigerian Bar Association; as well as the international community and in particular the European Union, the United Kingdom and the United States of America.

The aftereffects of the President’s actions continue to reverberate, the latest being the resolutions reached at the emergency meeting of the National Judicial Council (NJC) on Tuesday 29th January 2019, where the NJC issued a query to both Justices Onnoghen and Muhammed and referred a petition against the CCT Chairman, Mr Danladi Umar to the Federal Judicial Service Commission for investigation. The nation now eagerly awaits the outcome of the investigation by the NJC which is expected at the next meeting scheduled for 11th February 2019. 

In the meantime however, and consistent with any issue involving law and lawyers, diverse opinions have been, and continue to be, canvassed in favour of, and against, the actions of the President. And it is against this backdrop that the present writer contends that, whether or not the allegations against the Chief Justice of Nigeria are ultimately provided to be true, the actions of President Buhari will go down in history as the most brazen act of desecration of the temple of justice since Nigeria’s independence in 1960.

There is no doubt that President Buhari rode to power in 2015, on the back of a promise to tackle the evil of corruption that has bedevilled virtually all facets of the Nigerian society. What later emerged was that the modus operandi of the President would be to embark on this fight against corruption even if it meant sacrificing the well-established doctrines on which the Nigerian democracy is anchored to wit, the rule of law, supremacy of the constitution, separation of powers and respect for fundamental human rights. And more importantly, even in the face of demonstrable basis for the theory that the said fight is selective and not systematic.

We first saw this in August 2015, when President Buhari while addressing lawyers at the annual Conference of the Nigerian Bar Association (NBA) directed lawyers not to represent defendants who were accused of looting the treasury. For inexplicable reasons, no informed him that it is a cardinal rule of professional conduct for legal practitioners that as a general rule, they do not reject instructions; and that it is a fundamental provision in the Constitution of the Federal Republic of Nigeria 1999 (“the Constitution”), which he swore to preserve; protect; and defend, that every person charged with a criminal offence is entitled to a fair hearing; is presumed innocent until he is proved guilty; and is entitled to defend himself in person or by legal practitioners of his own choice. Three years later, the President doubled down on this by informing the same gathering that national security trumps the rule of law. This latter statement was ostensibly uttered to provide belated justification for his administration’s serial disobedience of valid and subsisting orders of courts as exemplified by the continued detention of former National Security Adviser, Ibrahim Sambo Dasuki and the Head of Nigeria’s Islamic Movement, Ibrahim Yaqoub El-Zakzaky despite repeated rulings of courts of competent jurisdiction ordering their release.

While a number of critics had concluded on the basis of clear and convincing evidence that the packaging of President Buhari as a reformed democrat in the build up to the 2015 elections was a mere sugar-coat, and some even argued that his actions are indicative of one seeking to quench a long thirst for retribution against the Nigerian judiciary against which he has harboured a decade-old, deep seated disdain, following his repeated defeats at the election petition tribunals, what no one saw coming was the extent to which he was willing to go to desecrate of the temple of justice using the instrumentality of the CCT and in particular its Chairman, Mr Danladi Umar as a willing tool. This came to a head on 25th January 2019.

Before then, Nigerians woke to the reality that all would not be well with the judiciary under President Buhari when the State Security Service, self-styled DSS, invaded the homes of some Justices of the Supreme Court and the Court of Appeal and some Judges of the Federal High Court just a month to the retirement of the immediate past CJN, Honourable Justice Mahmud Mohammed. This was followed by an unprecedented delay in the appointment of Justice Onnoghen as the CJN despite a recommendation to the President by the NJC. Both the actions of the DSS and the subsequent arraignment of some of the Judges before High Courts and the CCT sharply divided opinions, so did the delay in the appointment of the CJN. In the end, the Nigerian judiciary was badly damaged by the events, but at least the office of the CJN remained sacred and insulated from the uncertainties pervading the system. It would not remain so for long.

The CJN is the head of the Nigerian judiciary and until now the occupier of the office had a relatively secure job. By the express provisions of Section 292 of the Constitution, and as separate courts have held, the CJN and the indeed the heads of all the courts established by the Constitution may only be removed before their age of retirement by the President or the Governor of the State acting on an address by the Senate or House of Assembly of a State as the case may be, and the NJC, being the body exclusively vested with the power to exercise disciplinary control over all Judicial Officers established by the Constitution, has a vital role to play in the process. Apparently resigned to the fact that the high threshold for the lawful removal of the CJN cannot be met, the President found a veritable avenue in the CCT.

The CCT is established by the Fifth Schedule to the Constitution and conferred with the powers to determine whether a public officer has contravened the code of conduct for public officer. This raises the question whether the CCT is a court and a superior court of record at that, and whether it exercises judicial powers. A fact that often appears lost on most Nigerians is that there are fundamental differences between superior courts of record and non-superior or inferior courts and tribunals. This is not a distinction without a difference and the implication will be appreciated presently.

Section 6(1) & (2) of the Constitution provides that the judicial powers of the Federation and of the States shall be vested in the courts to which the section relates, being courts established for the Federation and for the States. Section 6(5) then states that the courts listed therein are the courts in which these judicial powers shall be vested. The courts are listed in paragraphs (a) — (k) of Section 6(5). The said Section 6(5) expressly established 9 courts listed therein in paragraphs (a) — (i) while enabling the National and State Assemblies to create other courts in accordance with Section 6(5) (j) & (k). Very importantly, Section 6(3) specifically provides that the 9 courts shall be the ONLY SUPERIOR COURTS OF RECORD in Nigeria. It is instructive to note that the CCT is not one of the courts so listed. A combined reading of the various provisions in Section 6 of the Constitution lends itself to only one plausible interpretation, other courts or tribunals established, are not superior courts of record.

Nigeria operates a judicial system which borrowed largely from English law as a result of our colonial history. Under both English and Nigerian law, superior courts of record possess a self-generating intrinsic source of power, referred to as inherent power and which is different from the general jurisdiction conferred on the various courts and tribunals by the Constitution or enabling law. Thus, Section 6(6)(a) of the Constitution provides that the judicial powers vested by the Constitution shall extend to all inherent powers and sanctions of a court of law.

One of the major incidents of being a superior court of record is that such court is entitled to determine the question of its jurisdiction. This is not the case with inferior courts and tribunals which do not possess inherent jurisdiction but which exercise the jurisdictions and powers expressly conferred by law. Once the jurisdiction of a non-superior court of record or an inferior court or tribunal is challenged, the court has no powers to take any further steps in the proceedings, even to determine its own jurisdiction. Even in the case of a superior court of record, what emerges from the corpus of Nigerian case law is that when its jurisdiction is challenged, such court also has no powers to determine any question or make any pronouncement, except to determine its own jurisdiction.

Thus on 14th January 2019, when the CCT was informed that an application had been filed challenging its jurisdiction to entertain the case against the CJN, the Tribunal, not being a superior court of record, could no longer take further steps in the proceedings. Assuming the CCT is indeed a superior court of record [it is not], it only had jurisdiction to determine its jurisdiction and nothing more. It therefore follows the entire rulings delivered by the CCT, first on 14th January 2019, and again on 22nd January 2019, and in particular the ex parte orders purportedly granted on 23rd January 2019, were all made without jurisdiction, and are in accordance with Nigerian law, null and void and of no effect whatsoever. The law on this is sufficiently trenchant and merits no rehashing.

Secondly, the ex parte orders of 23rd January 2019, were purportedly granted in the face of several orders of superior courts of record, including the Court of Appeal restraining the CCT from further proceedings in the case. Flowing from the previous point, the CCT had no powers to take any arguments unrelated to the question of whether or not it had jurisdiction to entertain the charge.

Thirdly, it is a settled principle of Nigerian procedural law that once a court has adjourned proceedings (particularly in open court), it can only resume hearing of proceedings on the next hearing note. In this case, the CCT had on the proceeding of 22nd January 2019, adjourned proceedings in the case to 28th January 2019 for hearing of the Preliminary Objection. Yet Nigerians were advised by the President that the CCT had granted ex parte orders on 23rd January 2019.

Finally on this point, it is also a settled position of Nigerian procedural law that ex parte orders are only granted in cases of extreme urgency and in cases where it is expressly provided by law or the rules of court. Ex parte orders are an exception to the general rule and are typically filed together with a motion on notice for interlocutory orders. The essence of ex parte orders is because of the fear of irreparable damage being done between the date of filing and the date of service of the motion on notice. Above all ex parte orders are not generally granted to compel the doing of an act in view of their limited lifespan, but are granted to restrain the doing of an act to prevent irreparable harm being done. In this most curious of cases the motion on notice seeking an order to compel the CJN to step aside pending his trial before the CCT had been served and the court had adjourned proceedings for hearing, yet the President paraded an ex parte order granted on 23rd January 2019, which was granted on the strength of an ex parte application dated 9th January 2019. In other words the order had been granted over two weeks after the application was filed, and long after the motion on notice had been served.

All these are determinative of the fact that the CCT had no powers to have granted any ex parte interim orders in the case never mind the one of the nature that was in fact granted. It is therefore beyond cavil that the ex parte orders purportedly granted by the CCT on 23rd January 2019 was unfaithful to both elementary logic and the foundations of Nigerian due process jurisprudence.

Another factor that appears to have been lost on many is that ex parte orders are by their nature designed to last for a very limited period of time typically 7 days. The question then is now it is more than 7 days since the ex parte order was granted, is President Buhari willing to reverse his decision to suspend the CJN and swear in an Acting CJN with similar dispatch?

Above all the CCT made the order in the face of a subsisting decision of the Court of Appeal that any misconduct attributed to a judicial officer must first be reported to, and handled by, the NJC and it is only after the NJC has pronounced against such officer that the prosecuting agencies of the FGN can proceed. Whether this much maligned decision of the Court of Appeal is right or wrong, same remains valid and binding on all courts below the Court of Appeal including the CCT and it is not open to the CCT to depart from it.

All of the above ought to have been made known to the President by his retinue of legal advisers. Indeed no other Nigerian President in history has been surrounding by such record number of Senior Advocates of Nigeria. Instead, the President who is now notorious for selecting and obeying only favourable orders of court acted with uncharacteristic swiftness in announcing the suspension on the CJN and swearing in Justice Muhammed as Acting CJN. The legality and morality of the actions of Justice Muhammed in presenting himself to be sworn has been eloquently captured in the petition of Dr Olisa Agbakoba, SAN and is the subject of ongoing investigation by the NJC. Consequently I shall say no more on that.

If only the President had stopped there, maybe his actions would not have received as much knocks as it did. The President went ahead to deliver an address that was laden with several far reaching and indeed impeach-worthy statements. After beginning his address with a reference to the yet to be commenced CCT trial of the CJN, the President curiously placed reliance on the yet to be established “suspicious transactions running into millions of dollars [traced] to the CJN’s personal accounts by the security agencies”. These suspicious transactions, the President added with magisterial authority, were all undeclared or improperly declared as required by law. This is the same President who just yesterday informed Nigerians [and rightly too] that the Governor of Kano State, Abdullahi Umar Ganduje accused of receiving kick-backs from contractors and who was caught on tape doing do, was innocent until proven guilty. The President also betrayed his inherent hypocrisy when he relied on an illegally granted order by the Chairman of the CCT who himself has been indicted of fraud and is the subject of a criminal charge instituted by the Spokesperson of the Buhari Presidential Campaign Organization, Festus Keyamo SAN on behalf of the EFCC, to suspend the CJN.

The President then decried what he termed, “the sordid spectacle of a judicial game of wits in which the Chief Justice of Nigeria and his legal team have made nonsense of the efforts of the Code of Conduct Tribunal to hear the allegation on merit and conclude the trial as quickly as possible”. The President further added insult to injury by complaining about the stalling of the trial of the CJN, helped along by lawyers who insist that the orders obtained from the various courts, whether right or wrong are technically valid, and must be obeyed till an appellate Court says otherwise. Strangely, after admitting that this is the correct position of the law, the President asked if this was the right disposition for our nation. The answer is in the question.

And any lingering doubts that the motive of the President in swiftly announcing the suspension of the CJN and replacing him Justice Muhammed was not really about the non-declaration of assets, were dispelled by the words of the President himself when he announced his government’s dissatisfaction with, “the alarming rate in which the Supreme Court under the oversight of Justice Walter Onnoghen has serially set free, persons accused of the most dire acts of corruption, often on mere technicalities, and after quite a number of them have been convicted by the trial and appellate courts”.

One only needs to refer the President to the immortal words of Obaseki JSC in the case of Ojukwu v Military Governor of Lagos State (1985) where His Lordship held that “the Nigerian Constitution is founded on the rule of law the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion”.

Implicit in President Buhari’s statement is the clear expression of his intention to substitute the institutional knowledge of the judiciary particularly the Supreme Court with his personal notion of what is “the right disposition for our nation”. If a President is allowed to remove the head of an independent and constitutionally equal arm of government because he is dissatisfied with the fact that the judiciary was releasing accused persons to walk free, what is the limit to what he or indeed future Presidents can do?

What is perhaps most shameful about this entire episode is not even the actions of the President or the ill-advice of his handlers but the various utterances from very senior lawyers who for explicable reasons have justified this desecration of the temple of justice. They say that history is written by the winner. In generations to come, our children will either read that a fearless President successfully fought corruption to a standstill in Nigeria with the help of some senior lawyers or that a when tyrannical President sought to subdue and intimidate the judicial arm of government, well-meaning Nigerians stood to be counted. I have taken sides today. I only hope I am in the right.

Orji A Uka is a Nigerian born legal practitioner

Long Title
BY HIS STATEMENT WHILE SUSPENDING THE CHIEF JUSTICE OF NIGERIA FROM OFFICE, OUR PRESIDENT HAS SURPASSED HIMSELF IN THE SUBVERSION OF THE CONSTITUTION

by

Professor Ben Nwabueze

​President Buhari’s suspension of the Chief Justice of Nigeria (CJN) from office is, in itself, a most condemnable subversion of the Constitution, but his statement while announcing it to the public makes the action so absurdly subversive. Hear what he said:

“A short while ago, I was served with an Order of the Code of Conduct Tribunal issued on Wednesday 23rd January, 2019 directing the suspension of the Chief Justice of Nigeria, Honourable Justice Walter Nkanu Samuel Onnoghen from office pending final determination of the cases against him at the Code of Conduct Tribunal and several other fora relating to his alleged breach of the Code of Conduct for Public Officers.

It is against this background that I have received the Order of the Code of Conduct Tribunal directing me to suspend the Chief Justice pending final determination of the cases against him.

It also explains why I am not only complying immediately but with some degree of relief for the battered sensibilities of ordinary Nigerians whose patience must have become severely overtaxed by these anomalies.

In line with this administration’s avowed respect for the Rule of Law, I have wholeheartedly obeyed the Order of the Code of Conduct Tribunal dated 23rd January 2019.”

​The “Administration’s avowed respect for the Rule of Law” and for obedience of court orders sound like a deliberate perversion of truth, as witness Dasuki’s continued detention four years after a court of law ordered his release on bail, and same as Ibrahim Yaquob El Zakzaky two years after he was granted bail.

​The President’s statement raises several questions, the most crucial of which is as to whether the CCT has the power to order or direct the President to suspend the CJN. Second, whether the President, incarnating the Nigerian state, and as guardian of its Constitution, is bound to carry out the order, even when he knows, as he ought to know, that he has no power to suspend the CJN. Third, do the circumstances in which the order of the CCT was obtained not suggest a pre-meditated plan to subvert the Constitution?

​With respect to the first question above, the suspension is manifestly subversive of paragraph 18 of the Fifth Schedule to the Constitution (1999), which provides as follows:

“18.​(1)​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.

​(2)​The punishment which the Code of Conduct Tribunal may impose shall include any of the following –

(a)​vacation of office or seat in any legislative house, as the case may be.

(b)​disqualification from membership of a legislative house and from the holding of any public office 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.

​(4)​Where the Code of Conduct Tribunal gives a decision as to whether or not a person is guilty of a contravention of any of the provisions of this Code an appeal shall lie as of right from such decision or from any punishment imposed on such person to the Court of Appeal at the instance of any party to the proceedings.

It is clear from paragraph 18 that:

(a) only the CCT itself can order vacation of or suspension from office; the President is not empowered to do so, and cannot be ordered or directed by the CCT to do so;

(b) more importantly, the CCT cannot make an order vacating an office or suspending a person from office until the trial before it is completed and the accused person is found “guilty of contravention of any of the provisions of this Code”; the trial in this case is only just commencing;

(c) the right of appeal to the Court of Appeal conferred by paragraph 18(4) of the Fifth Schedule is from a decision of the CCT finding the accused person guilty of contravention of the Code, not from the action of the President suspending the accused person from office even when the action (suspension) is on the direction of the CCT; the denial of that right is a violation of the Constitution.

In conclusion, the CCT acted ultra vires the Constitution in making the order directing the President to suspend the CJN from office. The suspension is unconstitutional, null and void.

​The second question raised above, though not as crucial, is remarkable for its great intricacy. The impression created by his statement is that the President is trying to hide under the cover of the principle that an order of court directing him to do something imposes upon him a duty to carry out the order, notwithstanding that he does not have the power to do the thing in question, and that we are thereby precluded from enquiring as to whether or not he in fact has the necessary power.

​The ex parte order the President obtained from the CCT directing him to suspend the CJN from office does not, and cannot, erase the fact that he lacks the power to do that. The New Webster Dictionary of the English Language defines “suspend” to mean “to remove temporarily from an office, to cause to cease for a time from operation or effect”. The CJN is both the head of the judiciary, in which role he exercises largely administrative functions, as well as a justice of the Supreme Court; his removal (or suspension) from office as CJN can only be effected by the President with the support of two-thirds majority of the Senate, while his removal as an ordinary justice of the Supreme Court is by the President on the recommendation of the National Judicial Council (NJC) – section 292 Constitution 1999. The suspension (removal) of the CJN from office by the President does not comply with the two requirements of section 292 of the Constitution and is therefore null and void, notwithstanding that it is ordered by the CCT.

​The President had followed the suspension of the CJN with the appointment of the most senior justice of the Supreme Court as Acting CJN. The validity of the acting appointment depends on whether there is a vacancy in the office. Without a vacancy, no one can validly be appointed to the office in an acting capacity. Be that as it may, an acting appointment must comply either with any special constitutional provisions relating thereto or, if there is none, then, with the general provisions governing the appointment of a CJN. These require the appointment to be made by the President on the recommendation of the NJC subject to confirmation by the Senate: section 231(1). The 1999 Constitution has no special provision relating to the appointment of a CJN in acting capacity. The general provisions in section 231(1) therefore apply. The circumstances surrounding the suspension of Onnoghen and the hurried swearing-in of Mohammed as Acting CJN suggest that section 231(1) is not complied with in the swearing-in of the latter. The acting appointment is therefore null and void.

​In this connection, section 231(4) of the 1999 Constitution differs significantly from section 211(4) of the 1979 Constitution, which reads:  

“(4)​If the office of Chief Justice of Nigeria is vacant, or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the functions shall be performed by a person to be designated from time to time in that behalf by the President, acting in his discretion, from among the Justices of the Supreme Court.

Section 231(4) of the 1999 Constitution is certainly a significant advance in our democratic evolution. What the President has done by the suspension of the CJN in his discretion without recourse to the Senate (or the NJC) is to take us back to the era of personal rule, which is the form of rule to which his career as a military commander has accustomed him. Personal rule and dictatorship is anathema to Nigerians. We want nothing more of that obnoxious system of rule.

After the Federal High Court (FHC) has ordered a stay of proceedings in the prosecution against the CJN and adjourned the case until a named date, the President, being the alter ego of the Federal Republic of Nigeria (FRN), the named complainant, went behind the scene and surreptitiously got the CCT, the supposed impartial arbiter, to order the suspension of the CJN, the other party in the case. This is subversion unchained and running wild to devour the defendant in the suit, and to stifle the system of constitutional restraints on power. By this action the President has lost all his integrity and fitness to govern, and should not remain in office.

The ex parte order issued by the CCT, on which the President relied as authority for suspending the CJN, calls in question the integrity of its chairman, Justice Danladi Umar, as well as his impartiality as arbiter in the matter. Allegation of corruption has been levelled against Justice Umar in the Sunday Vanguard of 15th November, 2015. The newspaper report discloses an investigation by the Economic and Financial Crimes Commission (EFCC) of a N10 million corruption allegation against Umar as chairman of the CCT and the former Deputy Controller-General of Customs, Rasheed Taiwo, N1.8 million of which had reportedly been paid by Taiwo and collected on Umar’s behalf by his personal assistant, Gambo Abdullahi. The newspaper report also disclosed that the two other members of the CCT, Robert Odu and Agwage Atedze, feeling so embarrassed by the allegation, had refused to sit with Umar, and that in a joint letter to  former President Goodluck Jonathan, dated April 4, 2014, the two members had said as follows:

“May we with respect draw His Excellency’s attention to the allegation of N10 million bribe made against Justice Danladi Yakubu Umar, current chairman of Code of Conduct Tribunal, Abuja, which is being investigated by the EFCC.

“We, the two members of the CCT and the entire staff, are embarrassed and saddened by this allegation because a tribunal set up to check corruption should not be accused of being corrupt. This would not be in keeping with the transformation agenda of the administration.

“We are mindful of the fact that the Federal Government has zero tolerance policy for corruption, and this is the reason for the establishment of the CCT as one of the agencies to fight corruption in all its ramifications.

“It is our prayer therefore that this allegation will be looked into so that the tribunal can start sitting in the interest of litigants and their counsel.”

​The Sunday Vanguard of November 15, 2015 further reported that, based on findings of its investigations on the matter, the EFCC raised a two-count charge against Umar and his PA, Gambo Abdullahi, but for reasons unknown, the Commission later dropped Umar’s name from the charge sheet and took only his PA to court, which left Umar to continue functioning as CCT Chairman and to preside over Saraki’s case, sitting with one other member, Agwadza Atedze, who earlier signed a letter declining to continue sitting with Umar. In the course of the trial of Gambo Abdullahi before the CCT presided over by the same Justice Umar as chairman, the Court of Appeal made an order in March 2018 banning him (Justice Umar) from participating further in the case.

​The same Sunday Vanguard issue again reported that, based on the report and findings of the EFCC investigations, the former Attorney-General of the Federation (AGF), Mohammed Adoke SAN, wrote on May 7, 2015 to former President Goodluck Jonathan, as follows:

“I am of the humble opinion that the current state of affairs in which the CCT is unable to sit while the institution is increasingly diminished by a pall of suspicion, should not be allowed to fester as it will expose the institution to public ridicule and undermine this administration’s effort to combat corruption.

“IN the light of the foregoing therefore, Your Excellency may wish to initiate the necessary steps for the removal of the CCT chairman from office.”

​It is surprising that in spite of all this, Justice Umar is still in office as chairman of the CCT, which suggests that he is being kept there as part of a pre-planned subversive design aimed at manipulating the 2019 presidential election.

This sad episode in our history would not be completely resolved by the resignation of Justice Onnoghen, as is being suggested in some quarters, unless the President, as the person who brought this whole mess upon us, also resigns. The Attorney-General of the Federation (AGF), Abubakar Malami (SAN), and Justice Danladi Umar must also resign.

Professor Ben Nwabueze 

Lagos,

31st January, 2019

Mr X was arrested for stealing by the police, on arrival at the station he made a voluntary confession and described how he and his friends had committed the crime. 

Under Nigerian criminal law, Mr. X can be convicted of the crime of stealing solely on the strength of his confession. .

If the confession was however involuntary and Mr. X was coerced to make it, what do you think will be the case? .

Share your comments below 

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