Nigerian judiciary has unwittingly been politicised — Sebastine Hon, SAN

Mr. Sebastine Hon, SAN, a member of the Legal Practitioners
Privileges Committee, LPPC, in this interview, shares his view on
several legal and political issues confronting the country. He
suggested amongst other things, how the judiciary can be fully
secured and insulated from manipulations by politicians.

Recent events in the country have created an impression
about the state of the Nigerian judiciary. Should Nigerians be
worried? 

The way and manner those events happened and are still happening
should worry every right-thinking Nigerian. Many are worried that
the hallowed principles of separation of powers established by the
Constitution itself, is being infringed upon. Many are also worried
that even though Judicial officers enjoy partial immunity from
prosecution – in that the National Judicial Council, NJC, must
first indict a Judicial Officer before he will either be removed
from office or sanctioned in any other way, this immunity has been
shattered under one fell swoop.

Many Nigerians are also worried that democracy itself is under a
savage and vicious attack, since the Judiciary, which is the last
hope of the common man, is under siege. But not just Nigerians are
worried; the international community is also deeply worried. I was
just reading the press statement by the UN Special Rapporteur on
Judicial independence, Garcia-Saya, which condemned in no mistaken
terms, the suspension of the Chief Justice of Nigeria,CJN, 
Justice Walter Onnoghen, without the input of the NJC. Whether we
like it or not, this particular saga is now on world stage; hence
all stakeholders, including the NJC, must be very circumspective
and objective in handling it. If not well handled, the consequences
might just be too weighty for the country.

I am most worried because the judiciary has unwittingly been
politicised – along ethnic, religious and even partisan divides.
May God Almighty help us to come out of this soonest and unscathed.
And may the NJC never buckle under undue pressure and refuse to toe
the line of truth and objectivity.

If the judiciary is destroyed, the NJC will itself cease to
exist; Nigeria will cease to exist; and our collective destiny will
be destroyed.

The suspension of Justice Onnoghen as CJN raised certain
issues about how and how not to sack a CJN. Do you think there is a
need to rethink our constitution particularly
on this issue?

As stated above, even the UN knows that no one wakes one day to
remove a sitting Judicial Officer without the input of the Judicial
Council of that country. The UN Rapporteur, as shown above, sounded
out this clearly in his public statement. This is global best
practice, to secure the Judiciary, since it does not bear arms or
have coercive powers. In Nigeria, the CJN for instance cannot be
removed except upon an address supported by 2/3 majority of the
Senate. That is clearly provided for in section 292(1)(a) of the
1999 Constitution as amended. In spite of this, I hear very puerile
arguments, even from lawyers, that since the President has power to
appoint the CJN, he also has power to suspend him from office.
Section 11(1)(b) of the Interpretation Act is then cited in support
of this curious postulation.

We need to deeply interrogate this issue. Section 231(1) of the
Constitution mandates the President of Nigeria to appoint the CJN,
but upon the recommendation of the NJC and subject to confirmation
by the Senate. There are, therefore, two qualifications or
pre-conditions to this appointment: the recommendation by the NJC
and the confirmation by the Senate. This procedure distinguishes
the power of the President to appoint his domestic or personal
staff. Now, section 11(1) of the Interpretation Act has paragraph
(c), which limits the power of the appointing authority to suspend,
by insisting that any such suspension from office must be
exercisable subject to the limitations and conditions applicable to
the power to appoint. Since the President cannot wake up and
appoint any person as the CJN without the recommendation of the
NJC, he cannot also suspend the CJN without the recommendation of
the NJC.

Can our judiciary really be independent in the true
sense of it? 

The issue of the Judiciary being 100 per cent independent is a
myth. First of all, members of the Bench have their individual
idiosyncrasies, dispositions, ideologies, interests and cleavages.
This is the first limitation on the theory of the independence of
the judiciary. No one can do away with these varying and personal
limitations on the effective discharge of judicial duties.

Secondly, the structure of any given legal system affects in
varying degrees the independence of the judiciary. For instance, I
delivered a paper on the independence of the judiciary in 2009,
wherein I raised the issue of State Governors funding the capital
expenditure of State High Courts, Sharia Courts of Appeal and
Customary Courts of Appeal, which are established by the
Constitution as federal courts for the states. Because of paucity
of funds and for political reasons, these courts, as long as they
draw from the state purses instead of the NJC, are at times starved
of funds until they either stop delivering decisions that injure
the interests of the state governments, or until they remain
‘loyal’ to such interests.

A proper interpretation of the Constitution would show that it
is the NJC that is supposed to fund the capital projects of these
courts and not the various state governments that merely provide
land to house them. But this is not the situation, hence, whether
we like it or not, those courts are one way or the other
compromised in the discharge of their duties. Until some of these
problems are critically looked into, the judiciary cannot be truly
independent.

Appointment of judges in state courts is still largely
influenced by politicians. What is the danger of this and how can
it be curtailed?

I can only agree with you to some extent. To be fair to the NJC,
the conditions for appointment of judges to the various courts
established for the federation keep improving over time. Under the
2014 Revised Guidelines for the appointment of Judicial Officers,
it is the State Judicial Service Commission, headed by the Chief
Judge who is its Chairman that commences the procedure, by writing
to the state governor that a named number of judges is required to
be appointed. Looking at his financial standing, the state governor
either gives consent or withholds it. But this is where I have my
hunch and disagreement. Even though it is the NJC that ultimately
recommends to the governor for appointment of any such judge, if
the governor had initially given his consent that more judges be
appointed for his state, I still maintain that the NJC should
henceforth start funding the capital expenditure of federal courts
established for the states – to completely remove the state
governors from the chain. Having said that, however, I must say
that both the Nigerian Bar Association, NBA and security agents vet
appointees and even write reports before any person is appointed as
a judge. Also, the appointee must submit a certain number of cases
he or she has handled over a named period of time.

Then, more recently, appointees are made to undergo some written
tests, to gauge their knowledge of the law. My conclusion,
therefore, is that even though there is room for improvement, it is
not correct to say that appointments to the Bench are basically
political. No, they are not. What I know is that geographical
spread, also called federal character, is reflected largely but not
very strictly as to sacrifice merit in such appointments. But I
still call on the NJC to assume its constitutional powers of
collecting budgetary proposals from the various State High Courts,
etc, collating and submitting same to the National Assembly and
dispensing such moneys as are appropriated by the National Assembly
straight to the heads of such courts. With this, the independence
of these courts will be fully secured and insulated from
manipulation.

The Nigerian Bar Association recently made a
not-too-successful intervention on the FGN/ CJN crisis. Is this an
indication that the Bar has lost its glory? 

As I told you, Nigeria has been consciously or unconsciously
balkanised along ethnic, religious and political compartments. Yes,
we have always known our differences; yes, we have always had our
different political leanings and ideologies. But the recent events
have polarised us the more. The partial success of the NBA boycott
order was due mainly to these factors. Again, the NBA has grown in
number; and central control in such situations becomes
problematic.

But I should think the biggest contributory factor was the fact
that the NBA had internal crisis, owing to dissatisfaction of a
section of the Bar with the outcome of the last NBA national
elections.

Some of the aggrieved members, I can authoritatively say,
instigated the boycott.

To directly answer your question, I would not say yet that the
Bar has lost its glory; rather, I will say that once the NBA looks
inwards and purges itself of its internal implosive tendencies, it
will bounce back as a strong voice in the Nigerian public
space.

As Nigerians go to the polls, what is the permissible
level of intervention that foreign countries can exercise on our
internal affair especially our electoral process?

The issue of direct foreign intervention in the internal affairs
of any sovereign nation, and particularly in its election process,
has always been a very contentious issue in international politics.
For instance, the issue of alleged Russian intervention in the USA
2016 presidential election is still generating heated arguments and
contentions. More recently, the happenings in Venezuela, indicate
that two opposing ‘Presidents’ have been recognised by different
superpowers. Before his death, the late Libyan leader, Muammar
Gaddafi, was accused of interfering in the French presidential
election. In 2017, Turkish President, Recep Erdogan, publicly asked
Turkish citizens in Germany to vote against German Chancellor,
Angela Merkel. Back home in Nigeria, there is strong evidence that
the Obama-led Government of the USA supported the All Progressives
Congress, APC in the 2015 elections.

This cannot be denied or disputed; because we were all here when
APC chieftains, led by its then presidential candidate, Muhammadu
Buhari, travelled to Washington to solicit for the latter’s support
in the ensuing electoral contest. The US Secretary of State then,
John Forbes Kerry, followed up with a controversial visit to some
northern states; and the rest, they say, is history. Even in this
current exercise, President Buhari, while recently campaigning in
Kano, had some public officers from Niger publicly displaying their
support for him on Nigerian soil. I personally was, therefore,
surprised when the Governor of Kaduna State, El-rufai, appeared on
national television and boasted that foreigners who come into
Nigeria to interfere in our elections will go back in body bags.
This is the height of arrogance and perfidy, especially when it is
the Government of Nigeria that has invited foreign observers, 
a practice that has always been with us. I read just yesterday that
the US Government has elevated Mr. El- rufai to “a person of
interest.” This is perhaps the first time the US Government will be
putting a State Governor under its special watchlist.

Having said that, I know that Article 2 of the UN Charter
prohibits countries from intervening in matters that are within the
domestic jurisdiction of other countries. In 1965, the UN even
expanded, through its Resolution 2131 (XX), the ban on foreign
intervention, ‘for any reason whatsoever.’ However, if internal
political disagreements trigger crises of unimaginable levels,
unilateral military actions, sanctions, etc are deployed. We have
seen too many examples of regime change engineered and carried out
by countries on other countries. We cannot forget the role Nigeria
played in ECOMOG, where Samuel Doe was killed and Charles Taylor
removed from office; the role played by the US in the removal of
the then Panamanian  strongman, Manuel Noriega; the role of
the US-led coalition in removing Saddam Hussein, Gaddafi, etc.

I have stated both the position of international law and the
practical situation, including the role even Nigeria has been
playing in effecting regime change globally. Nigeria cannot, I
insist, be involved in such and at the same time be decrying it. He
who comes to equity must come with clean hands. Also, even though
prohibited under international law, direct foreign intervention in
the political affairs of other countries has come to stay with us
as a global community. Nigeria cannot afford to square up to the
superpowers, I must honestly advise.

There is no way the international community will sit and watch
Nigeria slide into an avoidable political or ethno-religious
conflict, in view of our near-dominating position in Africa. Our
leaders should listen to this, if they have ears. I do not doubt
that they have the physical ears; but the ability to hear with the
ear of the mind is what I am talking about here. Let us slow down
on rhetoric and grandstanding; because my interpretation of the
situation is that foreign superpowers do not want to sit and watch
rape of political justice in Nigeria. Again, I strongly counsel our
leaders to listen to this and allow free and fair elections in the
near-coming days. A stitch in time saves nine.

Culled from Vanguardngr