Onnoghen’s Removal Has Set Dangerous Precedent – Ex NBA 2nd VP Monday Ubani

In this stimulating chat with STEPHEN
UBIMAGO, the immediate past second Vice Chairman of the
Nigerian Bar Association (NBA), Mr. Onyekachi Ubani speaks about
the unresolved unconstitutional removal of Justice Walter Onnoghen,
the former CJN. He also speaks on the rule of law and issues of
democratic governance in Nigeria

Under the current Buhari-led administration, many like
El Zakzaky, Dasuki, Sowore,, and others, have been in detention
despite valid court orders. The government had justifi ed its
stance, saying national security supersedes the rule of law. Does
this argument hold water?

The issue of violation of citizens’ rights did not start with
this government. It happened under Jonathan’s regime; it happened
under Yar’Adua; it happened under Obasanjo’s regime; it is also
happening under this regime. So it is not peculiar to this
government. If you’ve been in the trenches as an activist, you will
recollect very well that there is no government, whether military
or civilian, that has not been accused of violation of human
rights. They even violated the right of the press under the last
dispensation. The only thing is severity and frequency under the
current dispensation. In any case, the atmosphere under Jonathan
was a bit freer in terms of acceptance and tolerance of criticism.
But I also want to stress the point that the Constitution says you
have rights under Chapter 4, but went on to list the derogatory
clauses. By derogatory clause, it is meant that under certain
circumstance, those rights are not unlimited; they can be derogated
from. And that when there is any clash between national interest or
national security or national welfare and individual rights, the
former will supersede individual right. But in violating or
derogating from those individual rights, there is only one arm of
government that has the authority to make that pronouncement after
making the proper evaluation of the facts and evidence. It is only
the court that does that. And that was what was established in
Asari Dokubo’s case. But what we are seeing now is that there is a
misapplication of that principle by the present executive. So when
they cite Asari Dokunbo’s case, they are not citing it to really
reflect the ratio of what was decided. They are citing it out of
context and that is the danger. We are not quarrelling with the
issue of national interest superseding personal rights. It is there
in the Constitution. In fact, it does not make sense for anyone to
say personal interest will override majority interest. The point is
that it is only the judiciary that has the constitutional authority
to make such an evaluation. In my own case, immediately I found out
that I was detained and I found that detention illegal, I consulted
my lawyer who immediately filed an action in court to enforce my
fundamental right. They brought up all those issues of what
transpired; that I stood surety for someone accused of a fraud; and
for that they took me into custody. The court said fine, if you
think the man who stood surety has committed any offense known to
law charge him. You don’t have to keep him in detention
indefinitely. Release him on bail if you don’t have anything. And
that order was disobeyed until the NBA and all other interest
groups started speaking out. This issue of disobedience to court
order is where we really have issues with this government.

But did the ruling in Asari Dokubo’s case say if the
court gives an order then the executive can invoke national
security as a reason for disobeying a valid court
order?

The court didn’t say that. The court said that at any point in
time that such clash become apparent then the order of court must
be obeyed. The executive has no power under the law to now begin to
interpret the decision of the court as to say national interest or
national security supersedes individual rights or an order of
court. In the Dasuki case we are talking about, the court had
severally said release the man on bail, but the executive sits down
and says no, because national security supersedes; and to justify
that you cite Dokubo’s case. But the question is: who decided
Dokubo’s case? Is it not the court? Why are you the one now
interpreting the decision of the court? If you have any evidence
against Dasuki that he has committed a crime, you take him to
court; you present the evidence and convict him. Why would you now
put him in detention indefinitely?

Some have argued that by the brazen tendency of the
executive to undermine the rule of law, it has e‑ ectively become
constitution unto itself. Do you agree with this
assessment?

That would be very wrong under a democracy. It would be very
wrong for the executive to become a law or a constitution unto
itself. There are three arms of government, you and I know that.
Each of the arms of government has their own role as assigned by
the constitution. So the executive cannot play these three roles.
The moment the executive begins to interfere with the function of
the other arms, then there is a big problem. That is when you begin
to assume that the executive has become a constitution unto itself.
So if there is any conflict at any point in time, and it is
resolved by the judiciary, then the executive has no choice than to
obey. Each of the arms of government is independent; but they work
collaboratively for the good governance of the country. They must
be separate and independent, without one arm trying to interfere in
the activities of the other arm. When these arms of government work
in a very harmonious manner, it is for the interest of everybody.
Mr. X is a victim today and you say ‘hei it is his problem.’ But
you can become a victim tomorrow. Did I ever know that I will be in
detention at some point? What I am saying is that any person can be
a victim. That is why at any point in time, we must stand on what
is right. You remember it’s said, “They came for the Jews, and I
did not speak out, because I was not a Jew. Then they came for
me—and there was no one left to speak for me.”

precedent and indicates the judiciary has been pocketed.
Do you agree with this assessment?

There is danger. It is a signal to danger if the judiciary is
pocketed. The judiciary is supposed to be independent and separate
from other arms of government. If Onnoghen was guilty or liable,
the he had to go for it. Anyone who commits any crime must go for
it. But if you now bridge the gap and break all the rules so that
the man would be penalized, then there is a big problem. It was
clear that in Onnoghen’s case, the executive failed to follow the
procedure, for justice should not only be done, it must be seen to
have been done. Indeed, Onnoghen’s matter is something, if allowed
to stand would set a dangerous precedent in our judicial history.
It is a very dangerous precedent. This is because there is nowhere
our constitution listed the process through which Onnoghen was
removed. The president swore to uphold the constitution. So, we
must access how he removed Onnoghen based on the constitutional
benchmark. I will say straight away that the removal of Onnoghen
did not in any way comply with the provisions of the constitution.
Even the requirement that the removal must be referred to the
senate was not complied with. And now this man is gone. He was
removed by an ex parte order of the Code of Conduct Tribunal (CCT),
which is an inferior court. We are yet to know whether the CCT is
part of the judiciary or part of the executive. The constitution
did not make any provision and call the CCT a superior court of
record. So we need to have it properly defined. There were many
things that happened in the removal of Onnoghen that leaving it as
a precedent is very dangerous. I am not exculpating Onnoghen. He
may have been guilty of all the allegations made against him; but
as long as the process and the procedure as laid down by the
constitution was not complied with, it leaves a sour taste in the
mouth of everyone. This is what you have witnessed of a state
governor refusing to forward the name of acting CJ to become
substantive CJ despite being eminently qualified.

Some people have said that what happened to Onnoghen is
indicative that the president has conquered Nigeria. That in case
the man says in 2023 he wants to continue as president beyond the
constitutional tenure limits, he will succeed. Would you disagree
with that view?

I don’t think that the president, to be fair to him, will like
to go down with that kind of record. I don’t think he will like to
test the will of Nigerians in 2023 as to say he will not hand over
to a successor or say he will disobey the constitution or violate
the constitution and seek to run for third term. I don’t think the
president is not wise enough to know that will be an uphill task;
that it will completely destroy his reputation. So, I don’t think
the president that I know will want to do so. I want to give him
the benefit of the doubt. Anything in that regard is in the realm
of speculation. When we get to that bridge of 2023 we will cross
it.

Nigerians have seen a lot of killings of their
compatriots since Buhari’s inauguration. Fulani herdsmen, bandits,
Boko Haram, kidnappers, among others, are busy killing Nigerians
from North to the South. Strangely, we have not seen arrest and
prosecution of the alleged murders. What is your response to this
development?

being killed; abroad they are also being killed, like in South
Africa. A lot of money has been sunk into fighting this state of
insecurity in the country. But nothing to show for it; so a lot
still needs to be done. Virtually every day you hear a particular
village being attacked and sacked but there is no arrest and no
prosecution. There are so many things that when they come here to
tell me, I weep. You are hunted in your country. You are hunted
abroad. But it now behooves on the leadership to rise to the
occasion because the primary responsibility of every government is
the security and welfare of the people. If you cannot provide
security, it means we have been returned to the Hobbesian state of
nature where life is poor, nasty, brutish and short. If there is
absolute lack of responsibility on the part of those we have been
elected to secure us, then we will have no choice than to say “to
your tents o Israel,” and so we provide security for ourselves.
Let’s not descend to that level. Or are they waiting until the
people start giving all of them the Ekweremadu treatment?

Culled from independent