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Onnoghen’s trial

By Ray Ekpu
07 March 2017   |   2:23 am
In his illustrious career spanning several decades Justice Walter Samuel Nkanu Onnoghen has had the judicial responsibility of deciding the fate of people who are put in front of him for trial.

Justice Walter Onnoghen

In his illustrious career spanning several decades Justice Walter Samuel Nkanu Onnoghen has had the judicial responsibility of deciding the fate of people who are put in front of him for trial. He did not know that at some point in his life he would go through some sort of trial himself. By doing his job over the years successfully he knew that by the seniority ranking of the Judiciary, he would at the retirement of Justice Mahmud Mohammed, that tall and eloquent dispenser of cerebral legal verdicts, step into his big, made-in-London shoes. He did not step into that hot seat the next day or the next week or even the next month after Mohammed’s exit. What went wrong? The National Judicial Council had nominated Onnoghen as the next Chief Justice of Nigeria and forwarded his name to President Muhammadu Buhari on October 13, 2016. His own duty was to send the man’s name to the Senate for confirmation.

He did not. Instead, he appointed Onnoghen as Acting Chief Justice of Nigeria for three months. Before the expiration of the three months, Buhari had jetted out to London on medical vacation and the Vice President, Professor Yemi Osinbajo had to act as President. As Onnoghen’s short term was about to expire and uncertainty became the only certainty, Osinbajo sent Onnoghen’s name to the Senate and also extended his acting appointment. No one gave any explanation for this tardiness. Was Buhari investigating Onnoghen? Was he uncomfortable with Onnoghen’s alleged judicial radicalism or did he simply want to replace him with someone whose hymn book is the same as his own? Or was he simply unable to make up his mind one way or another about the man? In fact, did he have the powers to withhold the NJC’s recommendation? Questions, no answers.

Onnoghen was obviously on trial for being qualified, by every account, to be the next Chief Justice of Nigeria. Onnoghen is from Cross River State so politicians from that state threw their weight behind him. He is also from the Niger Delta region so Chief Edwin Clark and his group concerned about the fate of that beleaguered region weighed in on Onnoghen’s behalf. Lawyers, human rights groups and news media expressed their views largely in favour of the judge. Among them were eminent senior advocates Wole Olanipekun and Afe Babalola who held the view that Onnoghen, having been recommended by the NJC, as the most senior Judge in the Supreme Court deserved to take the chair at the apex court.

However, one man who stood out in the controversy was Professor Itse Sagay, an eminent senior advocate who is the chairman of the Presidential Advisory Committee Against Corruption. He said that the matter “has generated a lot of heat, acrimony and self-generated anger without generating a single ray of light.” He said he is a lawyer and someone who is a beneficiary of informal sources of information.” If this gratuitous remark was expected to put a question mark on Onnoghen’s eligibility for the office it flopped miserably because the public was not interested in his opague gyration but in something tangible, investigateable and proveable. He offered none. He simply intoned magisterially: “the president is the appointor. He is not a cipher or a robot who has to pass on a nomination coming from the NJC to the Senate without discretion, input or without the right of rejecting such an appointment and calling on the NJC to send other nominations.”

I combed through the 1999 constitution and I saw no provision of such discretionary powers granted to the president. But in the 1979 constitution there was one in Section 211 (1). That section said that “the appointment of a person to the office of CJN shall be made by the President in his discretion subject to confirmation of such appointment by a simple majority of the Senate.” It is apparent that the learned framers of the 1999 constitution were unhappy with the provision for an executive discretion. They therefore deleted that provision. So three things must have happened (a) Sagay may have either read the 1979 constitution or (b) he may have wanted to make a verbal insertion of presidential discretion in the 1999 constitution or (c) he was simply playing the advocate. I take it that he was playing the advocate. The function of an advocate according to David Pannick, a famous Queen’s counsel in London, who has written a book titled, “Advocates” is to “advance one point of view, irrespective of its inadequacies. He must belittle other interests whatever their merits. His task is to seduce, to seize the mind for a pre-determined end, not to explore paths to truth.”

In other words, the advocate simply works for whoever pays for his voice. He doesn’t work for a higher cause. His aim is to convince or confuse. Sagay must have been a brilliant student of Pannick. Pannick represented the Sunday Times in the famous Spycatcher case and Penguin Books in the Salman Rushdie’s Satanic Verses matter. More sensationally he successfully defended a waitress who complained that she had been dismissed from her job because her employers considered her bust too large.

In the Onnoghen matter, Sagay was waxing eloquent in the manner that advocacy demands but the public did not seem convinced or confused by his verbal exertions. And worst of all, he did not bring forth any ray of light that can help us to find the way now or in future. All of that is history now. Onnoghen is now the “tear-rubber” Chief Justice of Nigeria.

While the matter was being heard in the Court of Public Opinion, Onnoghen issued a cautionary statement asking people not to put pressure on the President to do his duty. The public recognised that to be the voice of a decent man but they also knew that the matter went beyond Onnoghen as a person. It was likely to determine the fate of our institutions, the fate of procedures and precedents. It was also likely to determine whether the appointment of the CJN should be left to the whims and caprices of the President and the shenanigans of black market lobbyists and auctioneers.
That would be a degradation of that office.

Onnoghen’s appointment is a small punch for the semi-separation of powers and another small punch for the semi independence of the judiciary. Taken together the two small punches constitute a huge punch for our democracy. I use the word semi advisedly because each arm of the government depends, to a major or minor extent, on the others for its smooth sail.

For me there are three big challenges that await Justice Onnoghen. I call them the three Cs: corruption, congestion, constitution. Corruption is a gargantuan problem in Nigeria and the judiciary has not been quarantined from it. So I see the problem from two perspectives: corruption in the judiciary and corruption in the larger society. The stench of it wherever it occurs besmirches our image, assaults our nostrils and our Nigerianness. The judiciary under Onnoghen’s watch will have to give it a fight through its judicial decisions and through an internal fumigation process.

The last CJN, Mahmud Mohammed, gave an idea of congestion of cases at the Supreme Court when he retired. In the 2014/15 legal year the Supreme Court heard 1,578 matters and delivered 262 judgments. In 2015/16 it heard 1,489 matters and delivered 268 judgments. In that legal year, he said 500 new appeals were filed meaning that there were about 10 new appeals per week.

At his departure, there were more than 5000 appeals pending. He decided to constitute a second panel of the Supreme Court and to explore an Alternative Dispute Resolution. It might be useful to explore ways, through some kind of legislation, that some cases can terminate at the Court of Appeal. It may also be useful if special courts could be set up for corruption as well as constitutional cases. The success of these proposals depends on the acceptance of them by the Executive and the Legislature as worthy causes to pursue. But most cases at the Supreme Court come on appeal from the Court of Appeal. The Court of Appeal receives cases from the High Court. So the large chunk of cases at the Supreme Court derives from the avalanche of cases at the lower courts. Members of the Bench, Bar and Legislature must find ways of reducing congestion of cases at various levels. If that happens at the lower courts the Supreme Court will be happy to handle fewer cases.

The third C concerns constitutional rights of Nigerians. Rights enshrined in the constitution are currently on trial in Nigeria. Court orders are brazenly disobeyed and people’s rights are marched with impunity. Most Nigerians would like to see a Judiciary that seeks to uphold the freedoms and human rights inscribed in the 1999 Constitution. The Supreme Court must work to strengthen the pillars of our democracy so that they are not pulled down by the ferocious forces of dictatorship. An activist Judiciary that interprets laws in a manner that seeks to liberate people from the shackles of bad policies and bad government can be an eminent enhancer of the people’s wellbeing.

Justice Onnoghen must remember every minute of his day on the CJN’s chair that the constitution was almost subverted to his detriment but for the strong roar of dissent from the people.My closing argument is: My Lord, please make your administration people-centred because the people stood toe to toe with you at your trial. And triumph.