Femi Falana (SAN)
In this interview with OLADIMEJI RAMON, human
rights lawyer, Mr Femi Falana (SAN), speaks on the false
asset declaration charges filed against the Chief Justice of
Nigeria, Justice Walter Onnoghen
Will you say the judiciary is on trial with the
CJN’s case?
For sure, I believe that the nation’s judiciary is on trial.
Although the Chief Justice of Nigeria is not one of the public
officers covered by immunity in Section 308 of the Constitution, it
is anomalous to parade him before a criminal court or a
quasi-criminal court. Because the Chief Justice is the principal
interpreter of the law he cannot afford to break the law. His
integrity must be intact and as such he has to be above board like
Caesar’s wife. As the primus inter pares among all judicial
officers in the country he is required to lead by example. Since
the Chief Justice heads the juridical organ of the state, charging
him at the Code of Conduct Tribunal for alleged contravention of
the Code of Conduct Act has put the entire judiciary on trial.
The judiciary has been on serious trial on three occasions in
the past. The first time was when the Chief Justice, Prof Taslim
Elias, was summarily removed from office by the Murtala Mohammed
military regime during the 1975 purge of the public service. Even
though the CJN was not specifically accused of engaging in corrupt
practices he was sacked over his ex cathedral statement stopping
the filing of affidavits to expose corrupt public officers by
concerned citizens under the Yakubu Gowon regime. The second time
was when Justice Ayo Salami, the then President of the Court of
Appeal, accused Chief Justice Aloysius Katsina-Alu of perverting
the course of justice in the appeal arising from the Sokoto State
governorship election petition in 2011. The crisis shook the
judiciary to its foundation. The third occasion was when the armed
operatives of the State Security Service carried out a nocturnal
raid on the homes of some judges on October 8, 2016 on the grounds
of alleged corruption. The judges were arrested, detained and
dragged to criminal courts to face corruption charges. This is the
fourth time and it is the most trying period for the judiciary in
the chequered history of the nation.
Many lawyers have accused the Buhari regime of
intimidating lawyers and judges by charging them with criminal
offences. Do you share the view?
The facts on the ground do not justify the allegation. I have
observed a proclivity on the part of some senior members of the
legal profession to practise law in an atmosphere of impunity. At
the annual conference of the Nigerian Bar Association which held in
Port Harcourt, Rivers State in 2006 or thereabouts, there was a
heated debate by lawyers over the decision of the EFCC to charge
lawyers with money laundering and allied offences. At the end
of the debate there was a move to pass a resolution asking (former)
President Olusegun Obasanjo to remove Mallam Nuhu Ribadu as the
Chairman of the EFCC at the material time. I was in the hall when
(the late) Chief Gani Fawehinmi called to find out what was amiss.
As soon as I briefed him he roared like a lion in his condemnation
of the reactionary resolution. Since lawyers are not above the law
of the land I mobilised young lawyers at the conference to
ensure that the resolution was defeated. It is part of our
political history that long before the current political
dispensation, judges and lawyers had been charged with criminal
offences and arraigned in courts in this country. The earlier that
lawyers are reminded that heavens did not fall when a couple of
sitting judges were charged with murder and armed robbery in the
1980s, the better for the legal profession. In the same vein,
scores of lawyers who were alleged to have contravened the penal
and criminal codes have been put in the dock. Some were acquitted
while those who were convicted were derobed and removed from the
roll of legal practitioners.
On May 19, 1992, the late Chief Gani Fawehinmi (SAN) and I
together with three other comrades were suddenly removed from Kuje
Prison where we had been detained and taken before a Gwagwada Chief
Magistrate Court where we were charged with the grave offence of
treasonable felony. Can you imagine that civilians were charged
with attempt to remove a military dictator from power? Even though
the charge was served on us in the precincts of the court Chief
Fawehinmi and I represented ourselves and the other defendants.
Because we took advantage of the opportunity of asking for our bail
to put the Ibrahim Babangida junta on trial in the course of our
submissions the case was abandoned and the charge was eventually
dismissed in our favour. The following year, Chief Fawehinmi, the
late Dr Beko Ransome-Kuti and I were again arrested in Lagos
for organising the mass protests which greeted the criminal
annulment of the result of the June 12 presidential election. We
were taken to a Magistrate Court in Abuja where we were
charged with unlawful assembly, incitement and sabotage of the
political transition programme. If lawyers and judges do not want
to be paraded in criminal courts like common felons, the NJC and
the NBA have to sanction members who breach the ethics of the legal
profession.
Was the Court Appeal right in its pronouncement that
a sitting judge cannot be tried in court until he has been probed
and sanctioned by the NJC?
Certainly the Court of Appeal was palpably wrong. With profound
respect, I do not agree with the judgment of the court in the case
of Nganjiwa v Federal Republic of Nigeria, which held that a judge
who has not been investigated and indicted by the NJC cannot be
charged or arraigned in a criminal court or quasi-criminal court.
As a matter of fact, the judgment appears to have glossed over the
several decisions of the Supreme Court which have prohibited
administrative or executive bodies from usurping the exclusive
powers of the courts by trying public officers accused of
committing criminal offences. It is not right that the
judgment has conferred semi immunity on judges contrary to the
provisions of section 308 of the Constitution. But whether we like
it or not that remains the law until it is set aside. It is however
pertinent to note that there is an exception recognised by the
judgment. It is to the effect that judges who commit crimes outside
the scope of their duties may be arrested and prosecuted by any of
the law enforcement agency without any recourse to the NJC.
When the cases pending against judges were struck out in the
trial courts on the authority of Nganjiwa’s case last year the EFCC
filed an appeal against the judgment. The appeal is being handled
by a team of lawyers led by my respected colleague, J.S. Okutepa
(SAN). In the interim, the EFCC has referred the complaints of
misconduct levelled against the judges to the NJC. From the
information at my disposal the NJC has concluded the cases of not
less than three of the judges and recommended their removal from
the bench.
Don’t you think that the judgment of the Court of
Appeal in Nganjiwa’s case was a ploy by the judiciary to shield its
own?
In actual fact, I wrote a critique of the judgment when it was
handed down. Rather than shield judges from prosecution it has
exposed them to double jeopardy. A judge who is accused of
committing a criminal offence in the course of duty is investigated
for misconduct by the NJC. If found guilty the judge is recommended
for removal and then thrown to the lion’s den as it were. Even if
the allegation is dismissed and the judge is given a clean bill of
health by the NJC the Attorney General of the Federation cannot be
prohibited from filing a criminal charge if there is a reasonable
suspicion that an offence has been committed by the judge. In other
words, the power conferred on the Attorney General by Section 174
of the Constitution to initiate criminal proceedings against a
criminal suspect cannot be stopped by the finding of the NJC or any
of the executive bodies created by section 153 of the Constitution.
But if a judge who is charged with corruption before a criminal
court is interdicted or suspended by the NJC he or she may be freed
by the trial court on technical grounds or due to lack of
sufficient evidence to sustain the charge. And once the judge is
discharged and acquitted by a criminal court that ends the matter.
Having been freed by the trial court the judge will be
automatically reinstated. That was what happened when a judge of
the federal high court and his wife were recently charged with
corrupt practices in the high court of the federal capital
territory. As soon as the trial court freed the couple the
judge was reinstated but if the case had been sent to the NJC he
would have been removed from the bench before the trial. As far as
I am concerned, the Nganjiwa’s case is a double-edged sword. It is
hoped that the Supreme Court will reverse the dangerous
judgment.
You described the charges against the CJN as
illegal, saying he ought to be reported to the NJC. If the CJN is
taken before the NJC do you think that the outcome will be
objective?
Since fidelity to the rule of law does not allow the government
to resort to self-help, the rights and obligations of every citizen
must be determined in accordance with the law. The government
cannot be so much in a hurry to engage in jungle justice in the
trial of the Chief Justice or any other citizen. Hence, I had
advised the Federal Government to withdraw the petition and refer
the case to the National Judicial Council. Until the decision of
the Court of Appeal in Nganjiwa’s case is overruled by the Supreme
Court the Code of Conduct Bureau is legally obligated to report
judges who either made false declaration or failed to declare their
assets to the NJC. A couple months ago, the case of the
Federal Republic of Nigeria v. Justice Ngwuta instituted by
the Code of Conduct Bureau was struck out by the Code of Conduct
Tribunal on the authority of Nganjiwa v Federal Republic of
Nigeria. To the best of my knowledge the Code of Conduct Bureau has
not filed any appeal against the decision.
Of course, it is not in dispute that the NJC is headed by the
CJN but that does not preclude aggrieved parties from reporting
allegations of misconduct against His Lordship to the NJC. If the
NJC has to consider any allegation of misconduct against the CJN,
His Lordship cannot preside over the meeting or the proceedings in
line with the elementary tenet of natural justice which is that he
cannot be the judge who will determine his own case. The principle
is known as nemo judex in causa sua. Many Nigerians have quickly
forgotten that when Justice Ayo Salami, former President of the
Court of Appeal, accused the former Chief Justice, the late Justice
Aloysius Katsina-Alu, of perverting the course of justice in the
appeal arising from the Sokoto State governorship election petition
in 2011 the Chief Justice had to recuse himself from presiding over
the proceedings of the NJC on the matter. Even though the NJC
hastily suspended Justice Salami for embarrassing the judiciary the
complaint was eventually resolved in his favour. At the end of the
marathon inquiry the NJC recommended the reinstatement of Justice
Salami but the recommendation was ignored until the respected
jurist retired when he attained the mandatory age of 70 years. It
is on record that the Salami/Katsina-Alu imbroglio substantially
eroded public confidence in the nation’s judiciary. It is therefore
interesting to note that the particular political party and members
of the legal profession who prevailed on President Goodluck
Jonathan not to recall Justice Salami in line with the
recommendation of the NJC have suddenly become the defenders of the
independence of the judiciary in Nigeria. However, in view of the
fact that the CJN has reacted to the allegation in writing the NJC,
if given the opportunity, will have no choice but to decide
the matter speedily in the interest of the judiciary and the
country. Since this is a matter of public interest I have no basis
to doubt the objectivity of the NJC in handling the matter.
Do you think the charges against the CJN might be a
plot by the ruling party to have control of the judiciary against
the coming elections?
I do not know the basis for the speculation. It is on record
that Justice Walter Onnoghen, along with Justice Adesola Oguntade
and Justice Aloma Muktar, who later became the first female Chief
Justice, delivered a dissenting judgment in favour of candidate
Muhammadu Buhari in the Buhari/Yar’Adua presidential election
petition in 2007. If the ruling party wins the forthcoming
presidential election, the Supreme Court cannot afford to annul it.
Frankly speaking, the Onnoghen-led judiciary is not ideologically
antagonistic to the Buhari administration. In fact, in prosecuting
the anti-corruption agenda of the Buhari regime, the judiciary has
largely collaborated with the executive. For example, when the
National Assembly refused to pass the bill for the establishment of
an anti-corruption court the Chief Justice suo motu directed all
heads of courts to create special judicial divisions to hear
corruption cases alone. The special judicial divisions have been
established and they are working in the respective high courts.
Even both the Supreme Court and the Court of Appeal have set
up special panels to hear corruption matters. No doubt, a couple of
important cases have been lost by the Buhari regime in recent time
but it is not an expression of ideological disagreement. Ours is
not like the Supreme Court of the United States of America whose
decisions are largely anchored on political considerations.
Culled from Punch