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.
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