Major issues threatening Nigerian judiciary

During the inauguration of members of the 2019 elections petitions tribunal on Saturday, the Acting Chief Justice of Nigeria, Justice Tanko Mohammmed said that the nation’s judiciary faces imminent destruction and admonished the panelists to rise to the occasion. The events of the last two weeks especially at the highest echelons of the nation’s judiciary […]

During the inauguration of members of the 2019 elections petitions tribunal on Saturday, the Acting Chief Justice of Nigeria, Justice Tanko Mohammmed said that the nation’s judiciary faces imminent destruction and admonished the panelists to rise to the occasion.

The events of the last two weeks especially at the highest echelons of the nation’s judiciary have left too many issues needing to be urgently resolved. Some of these issues include:

 Public perception of the judiciary

The allegation of non-declaration of asset by CJN Walter Onnoghen and the spacious coverage it has received in the media since it first broke on January 9, have really impacted on the image of the judiciary.

Also, the attempt by the Code of Conduct Tribunal (CCT) to get CJN Onnoghen immediately arraigned and the spirited attempt by the CJN to prevent the arraignment may have sent the wrong signals to the public about the judicial practice and procedure, the rule of law and due process in the country.

Acting CJN Mohammed noted this in his speech at the inaugural function: “The judiciary is in trying times. You must, and I repeat, you must stand to protect and uphold the integrity of this arm of government.

“If any other person is trying to destroy it (judiciary), we should try to protect it. If we don’t protect it ourselves no one will protect it for us. Therefore, it is our bounding duty to see that we protect the judiciary.”

Will election petitions panels stand?

Members of the Elections Petitions Tribunal were inaugurated in the heat of the crisis involving the headship of the country’s judiciary. However, those who have raised this point have tended to be political actors especially, with the general elections due to hold on February 16 and March 2.

But others have explained that the CJN does not appoint the election panels. Section 145 of the Electoral Act, 2010 and sub-section 3 of the Sixth Schedule of the 1999 Constitution empowers the President of the Court of Appeal (PCA) to constitute the chairmen and members of the election tribunals in consultation with Chief Judges of the states, the Grand Khadi of the Sharia Court of Appeal of the states or the President of the Customary Court of Appeal of the state, as the case may be.

The issue of who is authentic CJN

With President Muhammadu Buhari’s inauguration of the Acting CJN Tanko Mohammed on Friday while suspending Justice Walter Onnoghen, opinions have been divided over the constitutionality of the action.

Several constitutional lawyers and interest groups cite sections 153, 158 and parts 1, 2 of the Third Schedule and Section 292(2) of the 1999 Constitution, which requires the president to address senate and two-third majority vote by the Senate as only valid means by which a CJN can be removed from office. They also criticized the procedure for the appointment of the Acting CJN saying that it must be by the recommendation of the National Judicial Council as per Section 231 (1) and (5) of the Constitution.

Others however contend that the CJN ought to have stepped aside to face the charges at the CCT and save the integrity of the judiciary. They also argue that the President has the powers under 318(4) of the Constitution and Section 11 of the Interpretation Act, 2004, adding that the President acted on account of an order of the CCT.

Conflict over jurisdictions

The jurisdictions of the courts which have issued orders in the CJN Onnoghen’s case has created more confusion for the judicial system. Federal High Court in Abuja issued two separate orders halting the CCT from proceeding with the trial, the National Industrial Court and an FCT High Court also made similar orders.

While these courts may be said to lack supervisory control over the CCT, the Court of Appeal in Abuja also made an order for the CCT to hold on pending its ruling the matter on Wednesday January 30.

It has been argued that the Supreme Court had in 2017 upheld the CCT’s jurisdiction regarding asset declaration in Saraki’s case. So, questions have been asked why he didn’t submit himself to the tribunal. Questions have also been asked about why the President obeyed an ex parte order for the suspension of the CJN when there is higher order by the Court of Appeal.

Conflict of interest among CJN’s defence lawyers

Hardly had the news of CJN’s charges filtered in than over 100 lawyers indicate interest to defend him in court. Many of the lawyers fledged their solidarity with the nation’s highest legal and judicial officer by offering their legal service or free of charge.

The SANs, who appeared for the CJN include: Adegboyega Awomolo, Kanu Agabi, Yusuf Ali, Chris Uche, Hassan Hassan, Paul Erokoro, S.I. Ameh, Sebastine Hon, Magaji Mahmoud, James Onoja, Akinlola Kehinde, Chukwuma Machukwu-Ume, Victoria Awomolo, Tawo Tawo, Muyiwa Akinbolohun, Valerie Azinge, Emeka Etiaba and Abdul Ibrahim.

Others are: Olubowale Taiwo, Garba Tetengi, Offiong Effiong, Patrick Okolo, Kehinde Ogunwumiju, Bert Igwilo, Olubowale Taiwo, Stephen Adehi, Chino Obiagwu, Sylvester Ogwemoh, Adedeji Aderibigbe, Wilcox Abereton, Oba Maduabuchi, and Edward Kunav Ashiekaa.

Many of the lawyers in the defence team have ongoing cases before the Supreme Court with other lawyers who have not appeared in solidarity with the CJN.

“Dangerous precedents are being created. Later another lawyer can raise the issue of lack of confidence with such lawyers in court by accusing them ‘that you are CJN’s lawyer’,” he said.

But Barrister Collins Aimuan said the CJN is entitled to legal representation like any other Nigerian citizen, adding that a lawyer can offer free legal service to anyone, including the President, out of love and their conscience and not necessary to curry favour.

“There is a lacuna because it was never contemplated that a Chief Justice of Nigeria would be taken to court.  By the full implication of criminal indictment of the CJN, it is the highest degradation and the whole judiciary should be in mourning,” he said.

However, Barr E.M.D. Umukoro said it would be ethically wrong for a lawyer who has a case before the CJN to represent him in court for free.

“It must be stated though that it is the part of the professional responsibilities of the Nigerian lawyer to defend the judiciary. However, it is not the responsibility of the lawyer to defend a judge or justice of the appellate court on pro bono except he lacks the funds to hire one,” he said.

Similarly, Hameed Ajibola Jimoh Esq. said the matter borders on natural justice rather than ethics.

“The common law principles have been part of the Nigerian Legal System. This is because, to an ordinary lay man, the CJN is likely to be bias against the other party. So, it will be against the principle of natural justice for the CJN to sit to hear matters that those lawyers are defending against another party, else, it might amount to an injustice to that other party,” he said.

Subjudicial comments in the media

Some analysts are worried that the CJN’s case has attracted unguarded commentaries in the media and public space that have encroached on the substantive matters before about four different courts.

How can the judiciary handle such a development?

“There are many articles, commentaries and other sentimental, emotional or political comments by groups or some members of political parties against one another which touch on the subject matter before the courts,” Jimoh said.

“Considering the nature of this matter, I don’t know whether that can become the cause for an arrest because of the individual and office involved. Do we have the custody where violators can be kept without violating their fundamental rights and the courts will also be over labored with more cases?

“The danger is for our judicial system because if we don’t curb issues like this it may force a kind of pressure on the judiciary and may be a threat to sitting judges.

“Some of these comments are going on social media like Facebook, Whatsapp, Twitter and the rest. It would violate the rule of law and democracy and encourage hate speech, which government is making efforts to curb. It is becoming regional, ethnic and religious so we must maintain decorum in the judiciary.”