Why NJC could not urgently resolve CJN crisis

To many observers, the National Judicial Council (NJC)’s resolution querying Chief Justice of Nigeria (CJN), Justice Walter Onnoghen and the acting CJN Tanko Mohammed sworn in by President Muhammadu Buhari, was slow response to an urgent issue. In the emergency meeting it summoned on Tuesday January 26, which was chaired by retired President of the […]

To many observers, the National Judicial Council (NJC)’s resolution querying Chief Justice of Nigeria (CJN), Justice Walter Onnoghen and the acting CJN Tanko Mohammed sworn in by President Muhammadu Buhari, was slow response to an urgent issue.

In the emergency meeting it summoned on Tuesday January 26, which was chaired by retired President of the Court of Appeal (PCA), Justice Abdullahi Umar, the NJC gave both of the country’s two most senior jurists seven days to respond to new petitions brought against them. It adjourned to February 11 to deliberate on the responses.

But those who had wanted an urgent action to be taken by the NJC subject to the powers of the council in Paragraph 21 of Third Schedule of the 1999 Constitution, were concerned with the events in the nation’s highest judicial echelon in the past two weeks following allegations of non-declaration of assets against the CJN Onnoghen.

In his address while announcing the of  the acting CJN, President Buhari noted that: “The nation has been treated to the sordid spectacle of a judicial game of wits in which the Chief Justice of Nigeria and his legal team have made nonsense of the efforts of the Code of Conduct Tribunal to hear the allegation on merit and conclude the trial as quickly as possible considering the nature of the times in which we live.”

However, those who believe that NJC acted according to its laid down procedures, submit that the tempo of its response and the steps so far taken are not only commendable but have gone a long way to restore the independence of the judiciary and principle of separation of powers.

In a statement by the Director of Information, Soji Oye, after the meeting, the NJC directed Justice Onnoghen to respond to a petition against him by Zikhrillahi Ibrahim of Resource Centre for Human Rights & Civil Education.

The council also directed Justice Ibrahim Tanko Mohammad to respond to two petitions against him, by the Centre for Justice and Peace Initiative, and another by Olisa Agbakoba (SAN).

He stated that another petition against the Chairman of the Code of Conduct Tribunal (CCT), Danladi Umar, by the Centre for Justice and Peace Initiative was referred to the Federal Judicial Service Commission (FJSC).

The FJSC has powers under Paragraph 13 of the Third Schedule to the 1999 Constitution to advice the NJC in nominating persons for appointment as CCT chairman.

While the petition against CJN Onnoghen borders on alleged non-declaration of assets, the petition by Agbakoba against Justice Mohammed is on allegations of presenting himself to be sworn-in as acting CJN without the recommendation of the NJC. The senior lawyer cited the case of Justice Obisike Orji whom a panel of the NJC, which also had Justice Mohammed as member, recommended for sanction.

However, a professor of Law at Ahmadu Bello University, Zaria, Prof Tawfiq Ladan, explained that the NJC is a fact-finding body with powers to impose disciplinary measures on staff, adding, though that it’s powers with regards to criminal conduct and breach of the Code of Conduct Bureau Act is limited.

The don explained that the least he expects from the NJC is to sustain the suspension already imposed on the CJN by the President to allow the trial to continue.

A senior lawyer, Murtala Abdulrasheed, also said he was not surprised that the NJC failed to make any definite pronouncement on the matter because of the nature of its operations.

Explaining NJC’s rules and procedure, he said when a petition is received, a committee will be set up to look into it after which a recommendation will be made to the president.

He noted that the president is not bound to comply with the recommendation of the NJC, citing the case of former President Goodluck Jonathan and President of the Court of Appeal (PCA), Justice Ayo Salami, in May 2012, which the former president did not act upon until his retirement.

“Nothing was decided on whether the suspension of the CJN should be vacated or not,” he said

“The NJC by its decision did not torpedo the action already taken by the president,” he added.

He however explained that the positive which could be drawn with the NJC meeting is that the council is now acted on the matter and has already taken steps pursuant to its powers under Paragraph 21 of the Third Schedule of the 1999 Constitution.

He added that had the NJC taken the step it took on January 26 to issue the queries from the onset, perhaps the crisis would not have threatened the foundations of the nation’s judiciary as it did.

Also taking the positive side of the NJC action, a former professor of Law at the Bayero University, Kano and Vice Chancellor of Federal University, Kebbi, Prof Auwalu Yadudu, said the NJC has acted within its constitutional function to receive petitions against judicial officers and exercise disciplinary control over them through recommendations to the president subject to the confirmation or concurrence of the Senate.

“The constitution puts obligation on the president to forward NJC recommendation to the National Assembly to confirm or decline to confirm those recommendations,” he said.

The action of the president in suspending the CJN was predicated on an ex parte order of the Code of Conduct Tribunal (CCT). This, according to Abuja-based lawyer, Hamid Ajibola Jimoh, is backed by the provisions of Section 231(4) and (5) of the 1999 Constitution.

The section reads: “If the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.

“(5) Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appointment a person whose appointment has lapsed.”

For his part, Barr E.M.D. Umukoro said the functions of the NJC and CCT are separate and therefore none can stop the other.

“Some lawyers are arguing that the CJN should first be taken to the NJC just because it does not say well of the public image of the judiciary for him to be taken to the tribunal. The role of the NJC is to determine whether the CJN is fit to continue to act as CJN,” he said.

“If the CJN can also quickly submit his resignation or retirement, then he would no longer be the CJN and the tribunal can continue what they are doing. Also, what the NJC should do is to quickly abridge time,” he said.