Sam Okolie
Fighting corruption is a worthy
cause, but corruption breeds in different ways, including total
disregard for the rule of law. In a democratic setting there is no
alterative to the rule of law. The suspension of the chief justice
of Nigeria, Honourable Justice Walter Nkanu Onnoghen, the head of
the judiciary, by the president of Nigeria, Muhammadu Buhari his
caused a major up roar in the judicial and political landscape of
Nigeria. The action of president will be viewed through the lenses
of the Law.
What the Law Says
Section 292 (1) (a) (i) of the 1999
constitution as amended state that a judicial officer shall not be
removed from his office or appointment before his age of retirement
except in the following circumstances.
(a) In the case of;
(i) Chief justice of Nigeria, by the
president acting on an address supported by two – thirds majority
of the senate. The constitution in section 153(1) (i) established
the National Judicial Council. The same constitution in section
21(b) of part 1 of the third schedule of the constitution empowers
the N.J.C to recommend to the president for
the removal of the chief justice of Nigeria from office, and to
exercise disciplinary control over the chief Justice of
Nigeria.
In the case of NGANJIWA V Federal
Republic of Nigeria (P2018) 4 NWLR (PL160). 301 AT 341 and 394. The
court held that before a criminal action can be brought against a
sitting judicial officer, the condition precedent of referring the
Judicial Officer to the N.J.C must first be satisfied, that failure
to refer the judicial officer to the N.J.C, before commencing
proceedings makes the entire proceeding
null and void.
Thus, it follows that by the
provision of the constitution, and decided cases it is crystal
clear that the president did not follow the laid down procedure in
removing or disciplining the C.J.N. It is a settle principle of law
that where that Law prescribe a procedure to be followed, and that
procedure is not followed, the proceeding
will be null and void. See Attorney General of Federation V
Guardian Newspaper Ltd (1999) NWLR (618) 187
Thus, the action of
the president in not following the laid
down procedure is irregular.
DIVERGENT LEGAL OPINION:
It must be stated that there has
been a Lot of Legal commentaries stating that the president did not
breach the constitution, as according to
them, the president merely suspend and did
not remove the C.J.N, it is submitted with
respect, that this
view is risible at
best, and laughable at worse. The Law is
Lucid, limpid and clear that the express mention of one, exclude
the other, the wordings of the constitution clearly state REMOVAL,
because the constitution did not envisage and clearly abhors a
situation where the C.J.N will be suspended without recourse to
the N.J.C, in F.C UDOH & ORS VS ORIHOPAE
DIC MANAGEMENT BOARD & ANOR (1993)7 S.C.N.J
244 the supreme court per karibe
whyte state that; it is a well settled
principle of construction of statute that where a section names
specific things among many other possible alternative, the
intention is that those not named are not intended to be included,
expressio unius exclusio alterius. This is that the express mention
of one in a statuary provision automatically excludes any other
which otherwise would have applied by
implication with regard to the same issue. Thus the world used by
the constitution is “REMOVAL” and
“DISCIPLINE” of judicial officer, which
recourse must first be made to the N.J.C, and no where was the word
“SUSPENDED” used. Thus the word “SUSPENSION” is alien and strange
to the constitution and just like water cannot mix with oil, the
word suspension and removal cannot be mixed in relation to the
constitution.
Secondly, there are those who
justify the suspension of the C.J.N on the premise that the
president acted on the order of the code of conduct Tribunal. It is
submitted with respect, that these who hold that view are exuding
their ignorance of the Law. Section 18 (1) part 1 of the fifth
schedule of the constitution defines the power of the CCT. Section
18 (2) stipulate the punishment which the CCT may impose upon
conclusion of trial. They are (a) vacation of office or seat in any
legislative house as the case maybe (b) disqualified from
membership of a legislative house and from the holding of any
public office for a period not exceeding two years, and (c) seizure
and forfeiture to the state of any property acquired in abuse or
corruption of office.
From the above, the C.C.T, does not
have the power to order for suspension of the C.J.N. More so, as at
the time, the C.C.T gave the order to suspend the C.J.N, the court
of appeal, had already given an order to stay proceeding at the
C.C.T, and thus the C.C.T could not have issued an order, which
Ipso facto, it does not have the power to continue to preside over
the matter.
Finally, there are people who hold
the view that the president was right in suspending the C.J.N, as
to them the president was empowered under section 11 of the
interpretation ACT CAP 123 Vo1 8, L.F.N 2004. That since the
president can appoint the C.J.N, he can also remove the
C.J.N.
While this view is illogical as
illogic could beget, section 1 (3) of the constitution state that
if any Law is in consistent with the provisions of this
constitution, the constitution shall prevail, and that other Law
shall to the extent of the inconsistency be void. Thus, while that
is a wrong interpretation of the interpretation
Act. It is submitted that the provision of
section 292 of the constitution shall prevail.
CONCLUSION:
Let me conclude by quoting the
immortal words of ward Churchill. When it state that; it is a
collective responsibility of the citizens in a modern state to
ensure by all means necessary that its government adhere to the
rule of law. There are no bystanders, no
one is entitled to an apolitical exemption from such obligation.
Leon Jaworski put it more poignantly when it state that; when
dictators seek to destroy the freedom of men, the first target is
the legal profession and through it, to the rule of Law. Nigerians
in general, and Legal practitioners in particular should rise up
against this illegal suspension of the C.J.N, so as to protect the
sanctity and independence of the judiciary.
Just like the case of ELELU – Habeeb
V AGF (2012) 40 WRN 1 where the former C.J of kwara state, was
illegally removed by the then government of
kwara state, without recourse to the N.J.C, the supreme court up
turned the removal and declare the action of the government
unconstitutional.