Democracy at Risk? Justice Onnoghen’s Suspension in Perspective

Considering the role of the judiciary in settling electoral disputes, the timing of Justice Onnoghen’s suspension raises questions about President Buhari’s political intentions.

On Friday, President Muhammadu Buhari suspended Justice Walter Nkanu Samuel Onnoghen from his position as the Chief Justice of Nigeria. The president claimed compliance with the order of the Code of Conduct Tribunal made on January 23, 2019, which directed the president to swear in the most senior judge of the Supreme Court as the acting Chief Judge of Nigeria. However, Justice Onnoghen’s suspension is the unsettling climax of a series of events that began earlier this year with his arraignment on six charges of alleged false declaration of assets.

President Buhari’s rapid compliance with the order of the Code of Conduct Tribunal is curious. Firstly, it is a stark contrast to the Nigerian government’s more routine disobedience of court orders, especially those related to human rights enforcements. Secondly, Buhari’s compliance raises institution-defining questions about the prospects of democratic governance in Nigeria. Some of these questions are: Has the president, by suspending the CJN in compliance with the order of the tribunal, violated the spirit and letters of the Nigerian constitution? How well can the CJN superintend over a trial system and process given the possibility of being accused, and by the president, of an illegality? How reflective is the suspension on the processes of appointment and tenure of the Nigerian Supreme Court? What is the impact of the suspension of the CJN on the concepts of the rule of law, separation of power and the institutional independence of the courts? Will the timing of the suspension impact the integrity of the forthcoming elections? How much will Nigeria’s worsening ethnic and cultural cleavages influence public perception of the decision? 

CJN Suspension: Constitutional or Not?

In a bid to ordain the principles of separation of powers in the framework of democratic governance, the 1999 Constitution, in sections 4, 5 and 6 respectively, vests the legislative powers of the federation on the national and state legislative Houses of Assembly; executive powers in the president and governors; and judicial powers of the federation on the courts, established by the constitution. The constitution also safeguards against dictatorial concentration of powers in Nigeria. Alongside the principles of separation of powers is the functional independence of these three arms of government.

Essentially, judicial independence refers to the principle that judges must decide cases fairly and impartially, relying only on the facts and the law. According to Chief Justice Michael Wolf, the notion of ‘Independence’ is both overused and misunderstood. Independence, Wolf argues in Judicial Independence: A Cornerstone of Democracy Which Must be Defended, should not be interpreted either by the public or by any judge to mean that a judge is free to do as he or she pleases. The purpose of judicial independence is not to benefit judges; rather, is to ensure free and fair administration of justice in line with democratic principles and the rule of law.

Section 292 of the 1999 Constitution, in protection of the judiciary’s institutional independence, explicitly allows the President of Nigeria to remove the country’s Chief Justice only in one instance—where the president has the support of the Senate’s two-thirds majority. However, it is also worth asking whether ‘suspension’, the term used by the president, has the same meaning as removal as conceptualized by the Constitution. The court in Akinyanju vs. UniIlorin defined suspension as ‘to halt midway but certainly not to bring to an end or terminate’. Therefore, it is unlikely that suspension, what President Buhari claims to have done, is constitutional as, unlike removal, suspension is not countenanced in Section 292 of the Constitution.

Regulating Judicial Officers in Nigeria

The National Judicial Council (NJC), one of the novel introductions of the 1999 Constitution, plays a pivotal role in the appointment, discipline and removal from office of judicial officers (like the Chief Justice). Going by Paragraph 21 of Part One of the Third Schedule to the 1999 Constitution, only the council and not the president or the legislature has the power to suspend the Chief Justice. However, in this particular instance, there is a credibility hurdle for the council. This is because the council’s subject of investigation, the Chief Justice, is responsible for the appointment of 20 out of its 23 members.

That said, the influence of the Chief Justice in the composition of the council does not necessarily imply the council’s inability to function independently, especially if the Chief Justice recuses himself from the council’s deliberation. Until Justice Onnoghen’s suspension, however, there was no record of such recusal. Moreover, observers have alleged that Justice Onnoghen ordered the indefinite postponement of the 88th meeting of the NJC, which was due to hold last week on Monday. 

The Legitimacy of the Suspension Order

President Buhari claims to have acted on the order of the Code of Conduct Tribunal in suspending Justice Onnoghen, but how legitimate was that order? The Code of Conduct Tribunal is a creation of the 1999 Constitution, and the constitution expressly gives the Tribunal jurisdiction over all public officers including the Chief Justice of Nigeria. The constitution empowers the Tribunal to impose the “vacation of office or seat in any legislative house, as the case may be” among other punishments. The Tribunal, therefore, has the exclusive jurisdiction to deal with all violations of Code of Conduct by public officers.

To further muddle the pond, the Court of Appeal in Justice Nganjiwa vs. F.R.Nheld that no judicial officer can be charged before any court or tribunal until the NJC has disposed of the case. However, this court judgement was directed towards judicial officers committing an offence in the process of carrying out their adjudicatory duties. Offences such asdemanding a bribe from a party to the case before them. According to the court, “… if a Judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State directly without recourse to the NJC”. This stance is further validated by an earlier decision of the court in A-G Anambra v. Uba & Ors, which stated that it is improper for any Nigerian to seek the protection of the court from criminal investigation and prosecution. What this implies then is that, as Chief Justice, Justice Onnoghen should have no influence over his being charged with not declaring his assets (as demanded by the law).

A review of the constitution and previous judicial decisions suggests that there is nothing illegitimate about the trial of the Chief Justice by the Tribunal. However, given Nigeria’s long history of abusing court process by governments in power, Justice Onnoghen’s suspension sets a very dangerous and unsettling precedent. The legality of the Tribunal’s order mandating Justice Onnoghen’s suspension remains a complex matter and, until there is a definite judicial pronouncement on the order, it remains contested.

The 1999 democratic constitution, although imperfect, creates complex and often-times cumbersome processes and procedures for shielding the judiciary from political intimidation and interference but none of these processes or procedures immunizes judges from public scrutiny and legitimate criminal enquiry. While Justice Onnoghen is innocent until proven guilty, it remains to see how the state will handle his case given its record of bungling criminal prosecutions in the court after ‘winning the media war’. Furthermore, being Chief Justice, it is not recommended that Justice Onnoghen undergoe criminal prosecution in one of the courts he oversees. Not only does this add further complications to the state’s case against Justice Onnoghen, any perceptions of bias will certainly lower confidence about the impartiality of the Nigerian justice system.

The Broader Political Context

Considering the role of the judiciary in settling electoral disputes, the timing of Justice Onnoghen’s suspension raises questions about President Buhari’s long-term political intentions. One crucial question is whether, by suspending Justice Onnoghen at a time the former Chief Justice was planning to inaugurate an election tribunal, the president is trying to influence the outcome of the February elections. This is doubtful as the Chief Justice does not appoint members of the 36 states election tribunals. Rather, the tribunals are formed by the President of the Court of Appeal, in consultation with state chief judges, the Grand Kadi of the Sharia Court of Appeal and the President of the Customary Court of Appeal. The role of the Chief Justice is limited to swearing in tribunal members. As such, it is difficult to determine the what impacts Justice Onnoghen’s suspension will have on the independence of tribunals—which, ideally, should be constituted by judges who have individually sworn to be fair and independent in the settling of whatever election-related cases they preside over.

More certain than what motivated President Buhari to improperly suspend Justice Onnoghen is the likelihood that Justice Onnoghen’s suspension will worsen ethnic relations in Nigeria. Already, Nigerians have associated some of the president’s previous appointments with tribalism, and similar sentiments about the president having an ethno-religious agenda have emerged since Justice Onnoghen’s suspension. More so than previous cases, Justice Onnoghen’s suspension might worsen the sense of alienation that sections of the country feel under the Buhari administration if people associate Justice Onnoghen’s suspension with his being from Cross River State; or, conversely, if the appointment of his acting successor, Justice Ibrahim Tanko Mohammed, is associated with Justice Mohammed being from the same geo-political zone as President Buhari.

The Fourth Republic’s First Real Constitutional Crisis?

In a democracy founded on the rule of law, accountability is crucial. Specifically, judicial accountability implies that judges who preside over citizens need to justify both their judicious and injudicious actions. Unlike the executive and the legislature, judges are appointed through a system over which the public has no direct control. Even in cases of proven misconduct, judges can only be removed from office after a laborious procedure which is not easily invoked. Yet judges, as typified by Justice Onnoghen, wield tremendous powers. The question then is who judges our judges?

The suspension of the Chief Justice and the near-immediate elevation of the next senior judge in the Supreme Court to the position of acting Chief Justice highlights a major yet understated flaw in the leadership process of the Nigerian judiciary. The position, Head of the Court, should not, as recent events imply, be a ‘traditional stool’ that a judge inherits by virtue of the time spent on the Supreme Court Bench, but a position of grave responsibility that embodies all that is noble about the bench.

Presently, it is difficult to see a positive dimension to the manner in which Justice Onnoghen was suspended. Rather, the actions of all parties involved in his suspension have created an institutional, political and constitutional impasse that can potentially damage Nigeria’s evolving democracy. From Justice Onnoghen’s initial refusal to recuse himself from leadership of the National Judicial Council in respect of the council’s integrity, to the Code of Conduct Tribunal’s sudden suspension order (made without due consideration to the limits of the tribunal’s constitutional powers); and, more importantly, to the president’s swift implementation of this order without consideration of its potential impacts on the polity, we have witnessed what may very well be the beginnings of the Fourth Republic’s first real constitutional crisis

Editor’s note: We are currently accepting submissions for our April/May 2019 issue, in which authors will critically discuss “democracies in the modern world”. For more information, please read our call for submissions here.