Onnoghen misery’s and the Nigerian dilemma

The first sign of chaos is the number of senior advocates of Nigeria who offered to take up the matter free of charge. Often, when you find that many senior lawyers falling over themselves to represent a client – usually a high-profile client – you can be sure that more than anything else, they’re in it for spite, drama and self-interest. 

Any claim of public interest must be taken with a healthy pinch of salt.

Until over 130 top lawyers and senior advocates offered to represent the Chief Justice of Nigeria, Walter Onnoghen, at his trial for false declaration of assets this week, Senate President Bukola Saraki had the record for the largest contingent of senior lawyers in a court case.

Saraki lined up over 90 lawyers, including senior advocates, for a case that a pair of law interns might have got him off the hook given the theatrics by the bench and the shambolic performance by the prosecution. In the end, the prosecution won the case for Saraki.

This time, the drama exceeds anything we have seen in recent history. The Executive Director of Anti-Corruption and Research Based Data Initiative, Mr. Dennis Aghanya, petitioned the Code of Conduct Bureau, that the Chief Justice, a public officer, had not fully declared his assets, contrary to the provisions of the law.

Public officers are supposed to declare their assets once every four years. The petitioner alleged that there is material difference between what Onnoghen declared in 2005 when he was sworn in as a justice of the Supreme Court and 2016 when he became Chief Justice.

He alleged that Onnoghen appeared “to have suppressed or otherwise concealed the existence of multiple domiciliary accounts owned by him as well as the substantial cash balances in them”, which in five Standard Chartered Bank accounts totalled $164,804.83; €55,254.56; £108,352.02; and in two Union Bank accounts came to N49.3m. Onnoghen had allegedly declared only two of seven accounts in his first form.

In a response attributed to him, Onnoghen allegedly said it was only in 2016, after he became Chief Justice that he realised that he had not updated his assets declaration form.

But Onnoghen’s embarrassing and potentially consequential admission has been swept under the rug; it is no longer his problem. It is the problem of President Muhammadu Buhari, the hydra-headed monster who has crowned his multiple-dimensional election-rigging plan with yet another despicable plan to drag the Chief Justice, and indeed the entire judiciary, in the mud.

It doesn’t end there. What better evidence of Buhari’s disdain for the rule of law is required than sidestepping the National Judicial Council (NJC) statutorily charged with dealing with such matters and railroading Onnoghen’s trial, at lightning speed, before the Code of Conduct Tribunal (CCT)?

To put their ducks in a row, those who insist on the persecutory argument say there can be only two motives for it: 1) to crown Buhari’s Arewa-lisation of appointments by paving the way for Justice Ibrahim Tanko Muhammad, the next-in-line, and 2) to create a favourable judicial climate not just for the 2019 election, but specifically for the ruling party’s grim prospects in Zamfara and Rivers States.

If you have to go back to the top of this article to find out how we got to this point, then that’s a measure of how the elite, particularly lawyers and politicians with vested interests, has led us adrift. The matter has been so badly muffled and the moral burden central to it so conveniently and maliciously blurred, twisted and damaged that it has been steered away from the doorstep of Onnoghen, the man at the heart of it all.

It is distressing that Onnoghen, the essential symbol of judicial propriety and the moral conscience of the law, allowed the matter to get to this level. But no one is talking about that. If it is correct that he admitted not fully disclosing his assets as required by law, he should have spared the judiciary this embarrassment. He should have apologised and promptly stepped down.

Whatever the plot of his “enemies”, he should have risen above the fray by taking the moral high ground. That is the right thing – and the surest safeguard of judicial independence and integrity, which ought to matter more to him than his political survival.

There’s of course the new jurisprudence of technicalities and grandstanding – jurisprudence Nigeriana – which is fast gaining ground, and which, to be sure, is not without its basis in law. I get it; how the shadow can sometimes not only be more important than the substance but can, in fact, become the substance. In jurisprudence Nigeriana, it’s politics uberalles; expediency trumps propriety.

It’s been said that the petition should have gone to the NJC and processed through the backdoor channel of quasi-judicial immunity created by the scandalous judgment of the Court of Appeal in Nganjiwa vs FRN (2017). That’s the law. The process should have been followed, however disagreeable, and perhaps, too, the petition filed at a less combustible time.

What’s the hurry about and who does not know that had the matter been referred to the NJC, the Chief Justice, who is the chairman of the panel, would have happily recused himself?

That sounds sensible. But consider, for example, that less than 24 hours after the matter was referred to the CCT, Onnoghen ordered indefinite postponement of the 88th meeting of the NJC, which was due to commence on Monday? In whose interest was the meeting postponed and why now?

In a judgment which Onnoghen delivered on July 12, 2013, (SC.279/2012) he ruled that the CCT had exclusive jurisdiction to handle all violations of the provisions of the Code of Conduct Bureau, which of course, would cover false declaration of assets – the matter over which he is now being tried. There are not a few legal authorities who argue that the NJC may be considered “an ordinary, regular court” and in the matter at hand, the unilateral decision of the Chief Justice to postpone its meeting exposes the Council’s vulnerability.

Yet, South South governors have taken sides with Onnoghen as have leading PDP politicians and militants in the Niger Delta, who have threatened to resume blowing up pipelines if the Chief Justice’s trial were to continue.

There are, of course, those that have a genuine concern about possible encroachment on the rule of law and executive highhandedness. There’s also merit in the criticisms of the government’s embarrassing foot-dragging on corruption allegations, especially those involving a few of its valuable, high profile friends. Abdulrasheed Maina and Babachir Lawal are just two shameful examples.

However, at the height of the travail of the former Finance Minister, Kemi Adeosun, over claims that she forged her NYSC discharge certificate some of those egging on the Chief Justice today called for Adeosun’s removal on moral grounds, even though she had not been indicted. The evidence against Adeosun was so overwhelming, they argued, she had to go.

Have the rules changed so fast and so soon?

Whatever the motive or persuasion of Onnoghen’s supporters, I doubt if the honourable Chief Justice would consider this his finest moment. He is neither a politician nor a social mobiliser. He must feel extremely awkward and hard pressed to find himself warmly embraced by politicians of dubious stripes, with not a few offering him advice unbecoming of his office and others vowing to take up arms for his cause.

In August, Kenya was in something of a similar situation. Deputy Chief Justice Philomena Mwilu was facing 13 counts of abuse of office, tax evasion and fraudulent recovery of loan securities.

Even though Mwilu argued that her trial was the price she had to pay in a 4-3 ruling by the Supreme Court for the repeat of Kenya’s presidential election, she did not incite public sympathy to prevent the law from taking its course. Nor did she hide from prosecution under the byzantine technicalities of the law.

In an eloquent address last year, in which he reminded judges and Kadis that corruption in the judiciary is not only bribe-taking, Onnoghen also said, “The prestige of the Judiciary is indeed essential in a system of government such as ours in which the judiciary functions independently. The behaviour of judges is, in the circumstance, closely scrutinised to guarantee continued confidence in the integrity of the courts.”

It would be interesting to know, if in the opinion of his Lordship, his own role in the events of the last one week would guarantee continued confidence in the integrity of the courts and the judiciary as a whole.

On Monday, for example, the Chief Justice and moral beacon of the Nigerian judiciary did not appear before the court, presumably on the advice of his formidable legal counsel. What message did he send to ordinary mortals that he could not appear before an institution which he heads and in which he expects others to have confidence?

He cannot leave the answer to politicians, militants or the mob.

Ishiekwene is the managing director/editor-in-chief of The Interview and member of the board of the Global Editors Network.