CCB, CJN and indeterminate future By; Idowu Akinlotan

IT is all but certain that the next few weeks before the fateful
2019 elections, particularly the presidential election, will be
pockmarked by bitter wrangling between opposing parties and open,
provocative plots by the government. It is also certain that the
All Progressives Congress (APC), as evidenced by the Information
minister’s Friday disclosures on the collapse of Bank PHB, will be
on the offensive throughout, and the Peoples Democratic Party (PDP)
will be on the defensive throughout. If the APC triumphs as a
result of its relentless chicaneries, it will be because voters are
not too discriminating to read between the lines of the ruling
party’s propaganda. But if the PDP escapes the guillotine by the
skin of their teeth and wins the poll, it will be because voters
are excessively indulgent. Faced with a Hobson’s choice next month,
a choice the judicious will find very unpleasant to make, perhaps
the most unpleasant since the founding of Nigeria, voters will
troop to the polls in fewer numbers than they used to, hold their
noses, and cast their ballots with a hiss and a regret.

To make the outcome certain, however, the Muhammadu Buhari
presidency in quick succession last week dragged Chief Justice
Walter Onnoghen before the Code of Conduct Tribunal (CCT) for
offences connected with non-declaration of assets, and are lying in
wait for Atiku Abubakar, currently travelling in the United States,
whom they accused of having a hand in the collapse of Bank PHB.
There will be more jokers and shenanigans in the coming days. For
now, the most topical of all the subterfuges orchestrated by the
presidency is the Justice Onnoghen case, a case that has bitterly
divided the country into almost two equal halves, with lawyers and
laymen disputing the propriety of the case using complicated and
extenuating legal and moral arguments. The case is anchored on two
counts: one is that the government has acted in good faith on point
of law, and the other is that the government has acted mala fide
both morally and legally. The gravamen of both counts is that the
Buhari presidency, according to some critics, has been reckless and
short-sighted.

Aware that one half of the country has stridently argued that
the case against the CJN was a conspiracy by the presidency, a
conspiracy anchored on Justice Onnoghen’s alleged opposition to the
government and refusal to do the government’s bidding, Vice
Presidnt Yemi Osinbajo has suggested on his honour that the
president did not even know until the evening of January 12, 2019
that the CJN would be dragged before the CCT. He did not indicate
how the president got to know. However, according to him, “I can
tell you for a fact that (the president) did not even know about
this until Saturday evening.” Then he added: “He did not even know
that there will be any kind of arraignment until Saturday evening.
He has said categorically, ‘do not interfere with whatever
institutions are doing’; sometimes, it has consequences such as we
have today; such that people say how can such an important person
be subjected to a trial without the federal government knowing? But
I can tell you without any equivocation whatsoever that he was not
even in the know because it is a specific instruction that he
gave.”

The public doubt the vice president because the federal
government does not have a tradition of not micromanaging the
country and subordinating and subjugating the country’s
institutions. They are uncomfortable with the legislature and
judiciary running independently, especially at cross-purposes with
them, and are hostile to and wary of anyone in government having a
mind of his own. Though the Kaduna State governor, Nasir el-Rufai,
has tried to corroborate the argument of the vice president, few
people think he is really convincing. According to Mallam el-Rufai:
“Why should the President know about the prosecution of anyone? Let
us please stop personalising institutions. Won’t you be worried if
the President is worried about prosecution? Institutions should be
allowed to function. I am the governor of Kaduna State. The
constitution requires that I declare my assets before being sworn
in. Also, the constitution states this specifically, in plain
language. This is not law; we don’t need law to tell us this. I
don’t have to know if the Attorney-General of Kaduna State goes and
murder or rape someone, and the police arrest him; I don’t need to
know. They should charge him to court. Institutions should be
allowed to work, and we should stand up to protect the integrity of
institutions. Saying that the President doesn’t know, I think it is
a compliment to the president; it shows that he does not interfere
with institutions and doesn’t get involved in it.”

Could the vice president and Kaduna governor be right? The
balance of argument shifts badly against them on closer
examination. Dennis Aghanya, the civil society activist who
authored the petition against the CJN, was a ranking member of the
president’s former party, the Congress for Progressive Change
(CPC). He was a media aide to the president in their CPC days, and
publicity secretary to the same party. Since 2015, he has had a
history of siding with the president on controversial issues such
as spending money to buy arms without appropriation, and was a
chief convener of one of the president’s myriad support
organisations. No one has resolved the question of how Mr Aghanya
procured the CJN’s assets form. Crucially, too, Mr Aghanya
presented the petition to the CCB on January 9, 2019, and in two
days, the bureau had concluded investigations into the matter,
obtained a badly worded and panicky response from the CJN, and then
filed a six-count charge at the CCT. The pro-government forces make
light of the indecent and unprecedented haste, insisting that the
public should instead focus on the CJN’s admission of guilt, an
admission they have ridiculed. But they are mistaken.

Even more damning, say critics, is the synchronisation between
the Justice minister’s furiously fast directive to the Nigerian
Financial Intelligence Unit (NFIU) to freeze the CJN’s accounts and
the other actions taken against the eminent jurist. The directive
to freeze the accounts was dated the same day the trial was to
commence, January 14, 2018, implying a preconception days or weeks
before the execution. The NFIU also received the letter the same
day. The entire affair was obviously synchronised. By Thursday,
January 17, the federal government had filed another motion before
the CCT asking the court for an interlocutory order to compel the
removal of the CJN and for the president to replace him with the
next in rank, Justice Ibrahim Muhammad, their preferred candidate
for the great office since the departure of the former CJN, Justice
Mahmud Mohammed, in 2016. Clearly, the intention is to attack
Justice Onnoghen on many fronts until he caves in. Whether he will
throw in the towel is not known, however. But there is no doubt
that the attacks are coordinated.

Prof Osinbajo may suggest that the president did not know about
the Onnoghen arraignment until two Saturdays ago, and Mallam
el-Rufai may applaud that unsubstantiated fact, thereby indicating
simplistically that it pointed both to the independence of
institutions under President Buhari and the president’s own
sagacity in letting things run on their own, but few people will
believe them. The president’s Justice minister was deeply involved
in the plot, despite knowing what the law says on the matter. And
because he unfortunately holds the two offices of the Justice
ministry and the Attorney General of the Federation, it is totally
inconceivable that a Justice minister would hide such a huge case
that was certain to reinforce the president’s insensitivity to the
South-South. No one knows who the arrowhead of the conspiracy is;
but there was undoubtedly a conspiracy. Indeed, the argument about
whether there was a conspiracy or not has not even weighed on the
minds of the anti-Onnoghen forces as much as the CJN’s so-called
admission of guilt and the wrongdoing implied in the controversial
assets declaration, especially at a time when the anti-corruption
war had become the main focus of public discussions.

The coordinated but controversial case against the CJN clearly
shows that the Buhari presidency does not expect that the case
would be resolved in their favour in the courts. In fact, they
expect the case to end either in stalemate or, going by precedent,
in favour of the defendant. The Justice minister is not so
unlettered in law that he does not remember the acquittal eight
months ago of Supreme Court Justice, Sylvester Ngwuta, who was also
accused of concealing some of his private assets and doing private
business contrary to the provisions of the law. In dismissing the
case, the same CCT, before which the CJN has been brought,
concluded in a ruling read by William Atedze, a member of the
three-man CCT panel, that “What this means is that any allegation
of official misconduct will first have to be referred to the
National Judicial Council to the exclusion of any other body, court
or Tribunal”. And citing the Court of Appeal verdict in the Justice
Hyeladzira Nganjiwa case, further held that “Judicial precedent is
binding for as long as it is subsisting and until such precedent is
overturned by a higher court”.

Those who support the case against the CJN hiss at the
deployment of technicality by the Justices to escape censure. They
also point out that in the Justice Ngwuta case, the CCT made a
Freudian slip of drawing attention to a distinction between
misconduct, as contained in the constitution and official/judicial
misconduct, which is not in the constitution. They suggest that the
CJN case is one of general misconduct, which the CCT has
jurisdiction over, not a misconduct committed in the discharge of
official duties which must first be addressed by the National
Judicial Council (NJC). But even the most liberal interpretation of
the relevant provisions of the constitution dealing with how a
judicial officer can be removed does not draw a distinction between
ordinary misconduct and judicial misconduct. The constitution
speaks of misconduct, nothing more and nothing less. Furthermore,
there is no part of the Third and Fifth Schedules of the
constitution, nor of Sections 158 and 292, that makes the trial and
removal of Judicial officers a complex affair. The provisions may
be inadequate — and this column thinks they require amendment — but
they are not complicated. Until an amendment is done, however, the
law remains the law. The Buhari presidency knows this; and that is
why it has preferred to try the case in the media, hoping that
public sympathy and pressure would help force the resignation of
the CJN.

The Presidency has tried to give the impression that the CJN
case is simply and solely one of fighting corruption. This is not
true. The case, despite the legal lacunae enveloping it, is more of
politics than anything else. Since 2015, the Buhari presidency has
indicated that it trusts no one with sensitive offices but those
with kinship ties. Sadly, the choices have been sectional and
iniquitous to fairness, leading to allegations of insularity and
ethnic bigotry. The government, some suggest, expects the 2019
election to be tight and perhaps controversial, and might end in
the courts. In addition, there are a number of pre-election matters
that require the input of the judicial hierarchy. The government
worries that nothing should be left to chance, hence the rather
clumsy efforts to streamline and control things, regardless of
public reservations and opposition.

If, without conceding, the vice president and Kaduna governor
are right that the president was not part of the decision to haul
the CJN before the CCT, it may mean more frighteningly that the
popular impression of a president not really in control of his
government may be true after all. Those of his household who draw
this conclusion have shouted themselves hoarse about the hijack of
the presidency by cabals, and those who describe the president as
inattentive to details and the affairs of state may not be as
malevolent as presidential aides have campaigned. The president’s
views and arguments on the farmers/ herders crisis, the replacement
last September of the acting director-general of the Department of
State Service (DSS), Matthew Seiyefa from the South-South, with
Yusuf Bichi from the North, and the skewing of security
appointments in favour of the core North have all given indication
of a gross lack of depth and capacity. The CJN affair may very well
fit the bill.

Last week’s performance of the president on the Nigerian
Television Authority-organised town hall meeting is an example. It
was bad enough that nearly all the answers given by the president
were inadequate and uninspiring; it was much worse that he hardly
indicated he understood most of the questions. It was not stage
fright that numbed and stifled him; he has been around public
office for far too long to be discomfited by interviewers, even
merciless ones. It had to be a lack of profundity and too much
jadedness. The country may in fact be dealing with a leader who
cannot seem to tackle issues holistically, nor, more damningly,
appreciate the import of his decisions, policies and appointments.
There is corruption in the judiciary, as in nearly all facets of
the society. But the president has had about four years to inspire
lasting reforms to tackle the rot and fight corruption in such a
manner that a leg can be amputated without killing the patient. He
chose to employ mundane tactics, such as orchestrated public
lynching, aka media trial, and promote a disconcertingly archaic
and sectional style that humiliates the country and black people
everywhere, and hamstrings his own government.

There will be no let up in pressuring the CJN to relinquish
office. The Justice minister, who has shown a disturbing proclivity
for regime protection than advancing the cause of the law and
democracy, has already indicated in the government’s motion before
the CCT whom they wish to replace the CJN. Justice Onnoghen may
have surprised everyone by his response to the CCB investigations,
a response he is unlikely to be proud of in the years to come, and
many Nigerians may have emotionally already concluded, as is usual
in media trials, that the CJN is guilty of corrupt practices. But
the framers of the constitution, as exampled by Section 158 (1),
were anxious to preserve the independence of, and make co-equal,
the three arms of government.

The Buhari presidency, despite the sham and intemperate support
Mallam el-Rufai gives them, has done nothing visionary and
substantial to preserve, protect, and advance the cause of the
constitution, nor, worse, help the country make a ‘more perfect
union’. For the sake of the future, Nigerians must not pretend to
be unaware of the devices of the presidency. They must not because
of their position on Justice Onnoghen inadvertently help the Buhari
presidency weaken an already imperfect constitution and expose the
people needlessly to creeping totalitarianism. Making Nigeria great
transcends the sometimes insular goals of the presidency, any
presidency for that matter.

Culled from TheNation