CCT chairman’s outburst | Nairalaw

By Idowu Akinlotan

TEMPERS were probably frayed last Thursday at the Code of
Conduct Tribunal (CCT) as the federal government closed its case
against the suspended Chief Justice of Nigeria (CJN), Walter
Onnoghen, who was accused of failing to declare his assets.

The prosecution counsel called only three witnesses out of the
six he had intended to put on the witness stand, suggesting that
the others were not even as reliable as the ones called. He didn’t
sound enthusiastic, especially considering that the three witnesses
called virtually lent weight and integrity to the cause of the
defence. The defence barely suppressed their delight. But Danladi
Umar, Chairman of the CCT, was the most wrought-up. The public will
have to play around with a lot of guesses about what will happen in
the days ahead. However, armed with a few newspapers he said had
falsely reported proceedings at the CCT, Mr Umar bad-temperedly
warned that he was set to deal with them very severely.

The CCT chairman’s excuses are clear and legitimate.
“Henceforth,” he growled, “any journalist carrying concocted or
discredited statement, which is not adduced before this tribunal, I
will not hesitate to bring the full weight of the law heavily on
the person. The journalist will languish in prison and may remain
there until I retire that is about 28 years from now. The person
will be summarily sent to prison because that is contempt. It does
not matter whether the contempt is committed in facie curiae
(before the court) or ex facie curiae (outside the court).” There
were other concerns the CCT chairman was said to have voiced,
including complaining about how he was addressed. This column could
not independently confirm those concerns. But that of misreporting
proceedings, which a few newspapers were guilty of, is strong and
sensible enough to merit a few comments.

Even without Mr Umar voicing his concern over inaccurate
reporting of the tribunal’s proceedings, it is indefensible for the
media to fabricate statements and evidence not made or tendered in
court. It is abominable, whether the misreporting had to do with
deliberate mischief or incompetence. It must never happen. Just as
this column unreservedly condemns media trial of accused persons,
it also deplores without mincing words reporters who inaccurately
report proceedings. The life or reputation of an accused person
could sometimes be jeopardised by fabricated reports. Mr Umar was,
therefore, right to bitterly resent twisted reports which are
sometimes instigated by impure motives and prejudices.

But Mr Umar could also be reacting to the anticlimactic thinning
down of the trial he had seemed to invest so much in, and which the
public, not to say the government, had also invested with so much
emotions. As this unprecedented cause celebre winds down, it will
now take more than the most amazing legal wizardry, indeed a
miracle, to redeem the case against Justice Onnoghen. The
prosecution knows this. The CCT chairman senses this. And the
Onnoghen defence is beginning to foretell this. Nigeria’s divided
public will naturally double down along the country’s bifurcated
political lines, with the All Progressives Congress (APC) generally
tentative about the whole aggravating exercise, and the Peoples
Democratic Party (PDP) waiting anxiously and feeling somewhat
exuberant, if not exultant.

It is impossible for anyone to safely offer any opinion on the
Onnoghen trial, regardless of whether it is about to end in the
coming days or not. The CCT chairman is angry and uptight. He still
possesses enough venom even at this stage of the trial to come down
heavy on anyone that disrespects the tribunal or purports to know
how its now fevered mind works. It is risky — and it has always
been so when a trial is ongoing — to talk of the merit of either
the defence case or the prosecution case, or even of the tribunal
chairman’s multidimensional and multifarious views. But the public
can offer an opinion on Mr Umar’s threat to jail for 28 years those
in contempt of the tribunal. It was not just an unwise outburst to
threaten to jail purveyors of misleading reports, it should occur
to him that it had become perhaps revelatory of the juridical
agitations that were unsettling him.

When he answered the campaigns of those who insisted he was
subject to the control and discipline of the National Judicial
Council (NJC) and the Federal Judicial Service Commission (FJSC),
he had suggested that only the president, his employer, could
discipline him. At first, his response seemed tendentious, if not
circumlocutory, but as many experts examined the tribunal’s
enabling law, more analysts became convinced that he was probably
right. After all, many years before, the NJC had caused to be
published a list of judicial officers entitled to the Justice
prefix. The CCT chairman was not on that list, nor, it was implied,
could he be described as Milord. In his own words, in a response to
a complaint asking judicial authorities to sanction the CCT
chairman, Mr Umar replied: “With regard to the prayer of the
petitioner for an appropriate sanction against the chairman, it is
important to note that the chairman and members of the tribunal,
not being judicial officers, are not constitutionally subject to
any disciplinary proceedings by either the National Judicial
Council or the Federal Judicial Service Commission but the
Presidency. The petitioner alleged that judicial oaths were
breached and that the National Judicial Council should consider
appropriate sanctions. It is to be noted that the chairman and
members of the Code of Conduct Tribunal are not judicial officers.
This is predicated on the fact that the chairman and members of the
tribunal, during swearing-in, only subscribe to official oaths and
not judicial oaths. Therefore, not being a judicial officer, I did
not subscribe to judicial oaths as alleged.”

Mr Umar may be justifiably angry to be misquoted or for the
proceedings in the tribunal to be misreported, but there is no
denying that he is uptight about the relentless direction the
Onnoghen case has taken. He is uptight because he has been assailed
on all sides, accused of subverting the rule of law and misapplying
the law, and of handling the case with a predetermined outcome in
mind. No man, not even an angel, could be indifferent to such
accusations. It will be worse if at the end of the day, the case
ends as dramatically as it began and as anticlimactically as many
feared, as indeed it is threatening to do all at once.

But by far more unprecedented is the approach to the Onnoghen
case adopted by the presidency. Long assumed to be lacking in
quality advice, the Nigerian presidency unfortunately embraced the
case against the Chief Justice, adopted the case enthusiastically
as its own, rather than let it remain as an institutional
prerogative, and gave it as much legal and political traction,
including bizarre propaganda, as it could muster. The case against
the CJN was undoubtedly hatched by the government, but it was badly
hatched. The case was in court even before investigations were
concluded on the complaint filed by a civil society organisation
leashed to the federal government. Even then the government could
still have put some distance between it and the case. Instead, it
completely immersed itself in the case by getting the president to
read a long and winding justificatory address that convicted and
damned the CJN before the case was ever heard.

Here is what President Muhammadu Buhari unadvisedly said to
justify suspending Justice Onnoghen and damning the jurist
unequivocally: “The nation has been gripped by the tragic realities
of no less a personality than the Chief Justice of Nigeria himself
becoming the accused person in a corruption trial since details of
the petition against him by a Civil Society Organization first
became public about a fortnight ago. Although the allegations in
the petition are grievous enough in themselves, the security
agencies have since then traced other suspicious transactions
running into millions of dollars to the CJN’s personal accounts,
all undeclared or improperly declared as required by law…Nigeria is
a constitutional democracy and no one must be or be seen to be,
above the law. Unfortunately, the drama around the trial of the
Chief Justice of Nigeria has challenged that pillar of justice in
the perception of the ordinary man on the street. For it is certain
that no ordinary Nigerian can get the swift and special treatment
Justice Onnoghen has enjoyed from his subordinates and privies in
our Judicature.

“In the midst of all these distracting events, the essential
question of whether the accused CJN actually has a case to answer
has been lost in the squabble over the form and nature of his
trial. This should not be so. If Justice cannot be done and clearly
seen to be done, society itself is at risk of the most unimaginable
chaos.

“As a Government, we cannot stand by wailing and wringing our
hands helplessly but give our full backing and support to those
brave elements within the Judiciary who act forthrightly,
irrespective of who is involved…It is against this background that
I have received the Order of the Code of Conduct Tribunal directing
me to suspend the Chief Justice pending final determination of the
cases against him. It also explains why I am not only complying
immediately but with some degree of relief for the battered
sensibilities of ordinary Nigerians whose patience must have become
severely over-taxed by these anomalies. 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.”

It is doubtful whether the Buhari presidency ever contemplated
that the case against the CJN could end in defeat for the
prosecution . The tribunal chairman will now be contending with how
to resolve that case. But sooner or later, the president will have
to come to grips with a possibly unfavourable outcome. Indeed,
there is nothing to suggest that they are not already considering
the implications of an Onnoghen exculpation, if it comes to that.
More crucially, considering that President Buhari already condemned
the CJN, the jurist’s acquittal will doubtless introduce
extraordinary complications into his avowed claim to observe and
respect the rule of law. In addition, by needlessly traducing the
CJN before the jurist was tried or convicted, the president made
the case a zero-sum trial, one in which he has set himself up to be
quite unable to work and walk with the CJN should his exculpation
mean restoration to the coveted judicial stool. The president has
promised a better and ethical second term. The Onnoghen case may in
fact be his first acid test, and how he resolves it an indication
of just what principles, values and ethics he subscribes to all
along.

The CCT chairman may not be a judge or jurist in the traditional
sense, and may be sometimes bad-tempered when sufficiently provoked
by his conscience and mischief makers, but the country will wait to
see whether in the face of the daunting evidence before him he
would deliver justice. If the president is to escape censure and
damnation in the estimation of Nigerians and the world, he will
also hope that the CCT will hem and haw over the Onnoghen case to
give him the pretext he needs to waffle. Otherwise, he too will
face the dilemma of deciding whether to fall on a sword whose blade
he had specially but indiscreetly sharpened for his enemies or
calling the country’s constitutional and judicial bluff.

Culled from Thenation