Kenneth Chukwuemeka Ahia (SAN): ‘The Chief Justice should be reinstated immediately’
The entire nation was jolted last Friday when president Muhammadu Buhari announced the suspension of the Chief Justice of Nigeria (CJN), Walter Onnoghen and immediately swore in Justice Tanko Mohammed as the acting CJN on the orders of the Code of Conduct Tribunal. The ripple effect has been as prompt as the sudden act. Mr. Kenneth Ahia (SAN) in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE maintained that the CJN should be reinstated. He also spoke on other topical issues.
What do you think of the sudden suspension of the CJN and appointment of acting CJN by the president based on an ex-parte order of CCT?
Honestly speaking I adopt entirely the views of a learned colleague, Inibehe Effiong. This is not about the person of Justice Walter Onnoghen, but the office of the CJN. The exercise is constitutionally wrong and setting of bad precedent. We are practising constitutional democracy. The constitution is supreme. I have not seen the exparte order. But, in law exparte orders usually have limited life span. Is the suspension going to be for the life span of the interim order? If indeed the government has become born again then they should obey all orders given by courts. They should have no moral rights to continue the detention of persons granted bail by the courts. The code of conduct on Tuesday declined to make the interim order as sought by the prosecutor and adjourned proceedings. It is in my mind wrong to then go back to grant the same application exparte when the issue of jurisdiction is yet to be settled. It is a bad precedent ,
Going forward, what do you suggest should be done now?
Proper procedure should be followed. The CJN should immediately be reinstated and if there is a misconduct, he should be reported to the National Judicial Council (NJC) or to the National Assembly. Both the Federal Government and the CJN have a duty to protect the rule of law and the sanctity of the judiciary. If the president has acted on the basis of interim order for the suspension, that suspension should also be interim and should last for the same duration of the exparte order. The Federal Government should approach the NJC. I expect that the CJN cannot preside over his own matter. He naturally will recuse himself from the deliberations. There is nothing that says that his suspension cannot be recommended by NJC. My concern is the protection of rule of the law and not the person of Onnoghen. What is the guarantee that they will not use the same method on his successor?
It is amazing that such removal order came from the Code of Conduct Tribunal (CCT). How do you disntinguish between the CCT and the high courts? Are they of equal jurisdiction?
A tribunal is a tribunal and a court is a court. I disagree with Mr. Danladi Umar, who ruled that the CCT is of equal jurisdiction with the high courts. In the case of Metu v FRN, the Supreme Court said that the code of conduct tribunal is not a court of superior records of jurisdiction. That means that it is not of equal jurisdiction with the high courts because the federal high court, the high courts of states and that of the FCT are courts of equal jurisdiction. He is wrong in saying that he will not abide with the orders of the federal high court. The tribunal has a responsibility to abide with the order of a state high court because an order is an order unless it is set aside. A tribunal is a tribunal and not a court. If it is supposed to be a court, they would have clothed it with a toga of a court.
But both of them enjoy constitutional flavor?
They are constitutionally enthroned. Let me give you an example. I am the assessor for the institution of estate valuers disciplinary tribunal board, where they discipline members for misconduct. An appeal of that tribunal by virtue of the act setting it up goes to the court of appeal. So, that tribunal perhaps is made up of a lawyer and other members from that profession. Will you on account of that say that it has equal jurisdiction with a high court simply because its appeal lies at the appeal court? The answer is no. It was set up and called a tribunal and not a court. If the framers of the constitution wanted to make it a court, they would have called it the code of conduct court. But it is a tribunal and a tribunal is a tribunal.
There is a distinction in the example you just cited. All those tribunals, although their appeal may go to the appeal court, are not the creation of the constitution and are not so listed in the grund norm like the code of conduct tribunal, just as we have the high courts of either states or federal government. So do you think the comparison is just?
There are so many other institutions set up by the constitution, but that do not give them the toga of superiority. So it doesn’t matter that an institution is set up by the constitution. No matter what schedule it is listed in the constitution, it doesn’t give it the authority to become a court. In fact, the National Assembly can even set up a court of records. When such happens, it becomes an act of the National Assembly and it would exist as a superior court of record. So for the fact that CCT is in the constitution does not confer it with the same status with the high courts. In the case of National Electoral Commission v Nzeribe, the court said a tribunal no matter how highly clothed is still a tribunal, therefore an inferior court and subject to the supervisory jurisdiction of a high court. And as such, the high court of Lagos was said to have supervisory control over a tribunal. If the grund norm, which is the constitution wanted it to be a superior court of record, it would have said so without argument. And even in the section where the courts are listed in the constitution, tribunal is not mentioned.
In the area of administration, are they under the supervisory control of the National Judicial Council (NJC)?
I won’t necessarily say that but I know that their members are sworn in by the CJN.
There is this argument that the tribunal is an offshoot of the executive?
Yes, their members are nominated by the executive. And I don’t think that they get their subventions from the NJC too. So to that extend, yes.
Is it every misconduct by a judicial officer that should go to the NJC?
The authority now on the issue is that of Nganjiwa and until it is set aside, that is the law.
But there are those who are distinguishing between that judgment and other misconducts such as theft and others. Prof. Itse Sagay for example is advancing this argument?
What Nganjiwa is saying is not that they have been clothed with immunity. There is a condition precedent and that condition is reporting to NJC. Okay, let me give you a classical example. If a police man commits an offence, he goes through the orderly room trial. It is from there that he is dismissed and now face the law court. So, it is a condition precedent. Nobody is saying it is a total immunity. If you don’t follow the steps laid down by the law in what you are doing, you will be involved in procedural mistakes. The first thing is to report him to the NJC. They did not report him to the NJC. But that should have happened and they also wait until NJC takes a decision by disciplining him first, before he would be released for trial. That is what we are saying.
Section 292 of the 1999 constitution specifically mentioned the procedure for the removal of judicial officers, including the CJN and other heads of court. It states that they can be removed by the president on the address of two-thirds majority of members of the Senate. Does this confer immunity on heads of court in your opinion?
When you talk about immunity, both for the president and governors, you have to draw the distinction because there is a difference between immunity and removal. So they are two different things. What that section says is removal and not immunity. You have to distinguish them. Removal has a process to be complied with before you can remove. If you say that the CJN is owing you for the supply of vehicles, who says you cannot sue him for that? But the president and governors, you cannot sue because they are covered by immunity. So that is the distinction!
What do you think about the decision of the federal government to file a motion before the code of conduct tribunal praying it to order for the removal of the CJN?
That matter is subjudice. I won’t talk about it.
I don’t think it is subjudice because the case is now before the appeal court and the appeal court did order for stay at the CCT.
What is before the appeal court is not for that particular motion. I was in court that day and that motion was not been moved. No decision was taken on it. So discussing a matter that is pending is subjudice.
Apart from the tribunal, can the courts, constitutionally order the removal of a judicial office, talk more of a CJN?
The answer is no.
Is it that it is not provided for in the constitution or you deduced that that should not be the situation?
When a status or constitution lays out procedures of how to do an act, you cannot go outside that. You must follow it. Any deviation on that definitely must be null and void and unconstitutional. For example, if there is a contractual liability, the person cannot go to court to say this judge did not pay me for the goods supplied to him, therefore, I am asking the court to remove him. That would be ultra vires of the powers of the court. So, it is only a laid down statutory or constitutional provision that would suffice when you talk about removal.
For the fourth time, the electoral act amendment bill was sent to the president and the fourth time, he rejected it, saying it was too close to the elections. In all honesty, do you think that signing the act would have jeopardized the 2019 elections?
I will answer you by referring you to the last electoral act amendment by Goodluck Jonathan. When he assented to the bill was few weeks to the election. So, if that has been done in the past, I don’t see any reason why it should not be done now. The reason for declining assent is best known to the president. I am not in his cabinet and certainly do not know why. Of course, there are other constitutional provisions in circumstances where he declines assent. The National Assembly can override his veto. So the question should rather be to the lawmakers. Why are they not overriding the president’s veto? The president has its constitutional right to sign or not to sign. So, he has exercised his constitutional powers not to sign. It is up to the National Assembly to override his veto.
In respect of the letter written by former president Olusegun Obasanjo, he raised very serious concerns, especially on the issue of security and the credibility of the Independent National Electoral Commission (INEC) to conduct free, fair and transparent elections. What do you make out of that?
My take is that we should look at the message and forget about the messenger. A lot of people are criticizing Obasanjo that he doesn’t have the moral right to talk about those things or write a letter, but we have to look at the letter. Is there sense in what he wrote? And if there is, are there things that this government can look at? So it is right to continue to attack the personality of the former president, Obasanjo. We should look at the issues he raised and where he is wrong, tell him, he is wrong and also make amends where he is right.
Do you think, from what you have observed outside the exchanges of accusations of plotting to rig the election, that INEC is prepared to conduct free, fair, transparent elections to improve on what we had in 2015?
My disappointment with INEC is that they have not strived very hard to garner the confidence of the voting public. However, in Anambra election, they did very well and a lot of people gave them kudos. That of Osun, they were knocked left right and centre. So, the ability of INEC to perform would be based on what the head is thinking because a fish starts getting rotten from the head. If the chairman of INEC is bent on carrying out a credible election, he can. But for the moment, to tell you the truth, I will pitch my tent with the masses who feel that INEC still has a lot to do.
We have two major political parties. From what you have seen so far, do you think they have sufficient blueprints in their policy documents that addresse the issue of quick justice delivery in the country?
Two of them have been there for some times. PDP has been there for several years, while APC has been there for about four years. They have tried, but I think that there is another political party that you have not mentioned. That party is APGA. I think that at this moment, it is time for these two political parties to step back. Unfortunately, we need a third alternative. If we had had a third alternative, I don’t think that we would have been taking about the two now. For PDP, people said they did very well, but I don’t know whether they are going to do very well this time. The ideal thing would have been for us to have a fresh political party. And when you are talking about fresh political party, you are talking about SDP and APGA. Ideally, we should have those political parties at the national level so they can come up with fresh ideas. If you look at the APC and the PDP, they are made up of the same people crossing over the way they feel. It has been the same people who have been in power, whether it is PDP or APC. They are the same with the same ideology. So that is why I’m advocating that perhaps, it is time for us to look at a party like APGA.
A lot of people believe that the presidential system is very expensive, that we should revert to the parliamentary system of government such that the prime minister will not need to campaign in all the states of the federation but would be elected by his colleagues at the parliament, thereby cutting election costs. Which do you support?
The costs in presidential system is man-made. The presidential system gives you more inclusion in terms of participating in deciding who handles the affairs of the country. In such circumstances, you get to know who your president is and not donating that power to members of parliament to elect someone else. So in presidential system, everybody has the right and choice as to who the president would be. So it is better than the parliamentary system for me.
So, how is the cost man-made?
I have been out in the field of campaign with Dr. Alex Otti of APGA in Abia state. You will be ashamed when you finish campaigning and people are asking you what you will give to them. The electorate need to be well educated. The monies that they are collecting from these politicians are monies that they are going to recoup. Until they stop asking for money, things won’t change. Of course, if someone has collected government money and begin to share it during campaign, you can collect and still vote according to your conscience. You have not done anything wrong by voting according to your conscience, but they have continued to play money politics. That is why you see politicians – governors, senators and others amassing a lot of wealth, beyond what they need just to go and contest election. That is because out there, the man who will vote expect you to give him money and materials. And if you go and campaign and did not give them anything, they will say that you are not serious, that if you don’t have money you should go and sit down. Money politics is the greatest crime in this country. The moment reliance on money is stopped in our polity, the better for us as a country.
How do we draw a distinction between money politics and vote-buying because there are many ingredients of money politics, which include the humongous amount political parties sell their nomination forms? Are these not outrageous?
They are! But parties would tell you that it is from the monies they realize from the sale of forms that they use in running the parties and pay staff. That is understandable because they pay staff, pay rents and run other expenses. But in terms of vote-buying, it is criminal. You are selling your conscience! So if someone wants to contest an election as president, he should be able to buy the form or people can contribute to buy it for him. A friend of mine showed me his father’s party card in NCNC. They were contributing money and paying dues as members of the party, but now, no one pays dues. Rather they expect to be given money as members of that political party. Someone comes to campaign in your area, unless he drops something, you won’t listen to him. At the moment, what we are canvassing is that the electorate should stop expecting money from these politicians. And as they stop expecting money from these politicians, it would go a long way in stopping stealing by government officials.
In addition, what concrete steps do you think should be taken to curb the menace of vote-buying because it is becoming a national embarrassment?
Stopping vote-buying is like stopping crime. We need the will of the people. And when you talk about the will, we can use Babatunde Fashola’s example. When he was in his first tenure as governor of Lagos state, you can see that he cleared Oshodi. Oshodi couldn’t have been cleared by the military despite all they attempted to do. But Fashola in his first term cleaned up Oshodi. And you could pass Oshodi at any time without anybody disturbing you. So, it is the will of the leader. When the leader is determined to ensure that the right thing is done, then the citizens would follow. So, we have to have the will from our leaders first.
When you talk about leaders, who are you referring to?
I’m talking about those in political offices. Previously, a community would have a meeting and decide to go and put pressure on their sons to go and run for elections. Up until 1979, that was what was happening. And the candidate would say my people asked me to come. These days, nobody invites candidates anymore, they would rather impose themselves on the people. Unless we go back to the basis, where the communities make their choice of candidates, go and pressurize the fellow to come and even contribute money for the fellow, we will not get it right. Now, some people will go and make money from questionable sources and come and impose themselves on the people. Within six months of ascendency into an office, the fellow life and that of his family will change for good. So, that is really the problem.
What role do you think security agencies and INEC should play in checking the issue of vote-buying?
INEC is doing the best it can. I saw its jingle saying you shouldn’t sell your vote, that doing so amounts to selling your conscience. Security agencies should mount great surveillance during elections. Again, asking people not to go into the polling booths with phones is a good thing because someone out there would be holding cash and as soon as you come out and provide the evidence through your snapped ballot, they give you the money. These things are promoted by parties that are not popular; that are losing. A popular candidate doesn’t need to buy votes. So, it is the job of the security agencies to enforce the law and ensure that the problem is tackled. And they really need to do that.
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