Onnoghen : Nwabueze Calls For Buhari, Malami, Umar’s Resignation For Subverting Constitution

LEGAL luminary and elder statesman, Professor Ben Nwabueze, SAN,
has called for the resignation of President Muhammadu Buhari,
Attorney General of the Federation and Justice Minister, Abubakar
Malami, SAN; and Chairman of the Code of Conduct Tribunal, CCT,
Justice Danladi Umar for allegedly subverting the constitution via
the suspension of the Chief Justice of Nigeria, CJN, Justice Walter
Onnoghen.

According to Nwabueze, the CCT chairman cannot order the
suspension or vacation from office of a public officer until after
trial, hence ”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.”

He also argued that President Buhari has no power to suspend
Onnoghen and appoint an acting CJN.

In a 2,197-word statement, yesterday, Nwabueze said ”President
Buhari’s suspension of the Chief Justice of Nigeria 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.”

While suspending Onnoghen and appointing Justice Tanko Muhammad
as acting CJN, in line with the CCT’s ex-parte order, President
Buhari said, ”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.”

Said Nwabueze: ”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?”

He continued: ”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:

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;

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;

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….

”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.”