Was FG Right In By-Passing CCB In Onnoghen’s Case

In this piece, STEPHEN
UBIMAGO critiques the non-reference of FG’s case against
Justice Walter Onnoghen, the Chief Justice of Nigeria, to the Code
of Conduct Bureau (CCB) before proceeding to the Code of Conduct
Tribunal (CCT) with it…

When
operatives of the Department of State Services (DSS) between the
late night of Friday, October 7, 2016 and the early hours of
Saturday, October 8, 2016 simultaneously invaded the Abuja official
residences of Supreme Court Justices Walter Onnoghen, Sylvester
Ngwuta, and John Okoro, as well as the homes of judges of the lower
courts, including Justices Adeniyi Ademola, Nnamdi Dimgba, Muazu
Pindiga, among others, Mr Femi Falana (SAN), a renowned Lagos-based
lawyer, was among those who rationalized and justified the divisive
action of the President Muhammadu Buhari-led Federal
Government.

According to Falana in an interview,
the judiciary brought the harassment upon itself because it was
corrupt, refusing to purge itself hitherto. Thus the action was
expedient given the circumstances, since the judiciary had hitherto
failed to do the needful, Falana seemed to indicate.

He said, “Having failed to take
advantage of the relevant statutory disciplinary bodies to purge
the bar and the bench of corrupt elements, the members of the legal
profession have themselves to blame for the harassment of judges by
security forces.

“It is on account of negligence on
the part of the legal profession that the DSS which screens
candidates before they are recommended by the National Judicial
Council (NJC) for appointment as judges has engaged in the arrest
of judges for alleged corruption and abuse of office.”

The point is that Falana cannot
merely be described as a closet “Buharist.” He is more accurately a
thoroughgoing believer in the genuineness of Buhari’s aims in his
vaunted anti-corruption campaign despite all the controversies it
has generated.

Apparently also Falana believes that
whatever means Buhari’s anti-corruption effort adopts in waging the
war is justified or at the very least could be
rationalised.

If a tyrannical dictatorship is
being stealthily foisted on the country; if the independence of the
judiciary, the rule of law, the constitution, due process or indeed
democracy are all being undermined by Buhari’s anti-corruption
campaign, it does not matter for Falana, so long as the campaign is
seen to be bringing the heat on the corrupt, including those
sitting on the bench.

It was therefore not surprising to
many observers that when the President on January 25 unilaterally,
or indeed extra-legally, removed Justice Walter Onnoghen, the Chief
Justice of Nigeria (CJN), Falana would come up with oblique
arguments to the effect that Onnoghen brought his travail upon
himself.

According to Falana, it was Onnoghen
himself that made the President act with disregard to the rule of
law due to the expediency of the moment. He even maintained that
the action bore no overt political undertone to it.

When asked by a reporter whether the
President’s action was politically motivated ahead of the
forthcoming general election, Falana neither answered the question
directly or frankly, describing it only as speculative. “I do not
know the basis for the speculation,” he said inter alia.

He insisted that even if Onnoghen is
cleared of the charge of false asset declaration leveled against
him by the federal government, he should still resign.

“The government should as a matter
of urgency, lift the suspension on the Chief Justice since the
Chief Justice as so much to on his own admitted that he did not
declare his assets, he should do the needful by calling it quits,”
he said.

Falana, who appeared to be speaking
from both sides of his mouth, seems to maintain that Onnoghen’s
hands are not clean even if the judicial process ultimately
absolves him of the charge against him.

In a statement following Onnoghen’s
sack by the President, Falana declared, “I have had cause to call
on the Attorney-General of the Federation, Mr Abubakar Malami SAN
to withdraw the charge of false declaration of assets filed against
the Chief Justice of Nigeria, Justice Walter Onnoghen at the Code
of Conduct Tribunal.

“The call was without prejudice to
the merit of the serious allegations leveled against the Chief
Justice. In line with decided judicial authorities, I had wanted
the National Judicial Council to investigate the
allegations.

“Unfortunately, the 88th statutory
meeting of the National Judicial Council scheduled to hold on
January 15, 2019, which could have deliberated on the matter and
take an informed position was postponed indefinitely on the
directive of the embattled Chief Justice.”

But the real questions before
seemingly slippery Falana are the following: Is non-declaration of
assets by a public officer of itself a violation of the code of
conduct for public officers, for which the officer stands liable
for removal?

By admitting that he did not declare
his assets following his elevation to the office of CJN, was
Onnoghen admitting to his guilty as charged?

Procedurally, a case of false assets
declaration ought to first touch base with the Code of Conduct
Bureau (CCB) before exceptional circumstances will have it proceed
to the Code of Conduct Tribunal (CCT).

According to section 3 (d) of the
Code of Conduct Bureau and Tribunal Act, 1991, a complaint against
a public officer to the effect that he or she had not declared
his/her assets must first be lodged before the CCB.

Should the officer admit in writing
that the complaint against him/her is true, the matter would thus
not necessarily have to proceed to the CCT.

Indeed the officer will be made by
the CCB to make updates in respect to his assets declaration
afterwards and it ends there.

Section 3 (d) of the CCB&T Act
provides:  “The functions of the Bureau
shall be to receive complaints about non-compliance with or breach
of this Act and where the Bureau considers it necessary to do so,
refer such complaints to the Code of Conduct Tribunal established
by section 20 of this Act in accordance with the provisions of
sections 20 to 25 of this Act: Provided that where the person
concerned makes a written admission of such breach or
non-compliance, no reference to the Tribunal shall be
necessary.”

Now, the question: before ever the
government approached the CCT with its case against Onnoghen, did
it approach the CCB with it first?

In light of the above, it is clear
that by Onnoghen admitting that he had yet to comply with the code
for public officers requiring him to periodically make updates in
respect to the declaration of his assets, his being made to face
trial at the CCT by the Federal Government had become
superfluous.

Thus why should Falana argue that
since the CJN had admitted he had yet to declare his asset, then he
had ipso facto admitted guilty as charged and liable for removal
from office.

The Federal Government’s case
against Onnoghen was reeled out by Alhaji Lai Mohammed, Minister of
Information, recently is simple.

Mohammed said in a press briefing
thus: “‘This whole issue is about the country’s highest judicial
officer, the Chief Justice of Nigeria, being accused of a breach of
the Code of Conduct for Public Officers, and the legal and moral
conundrum surrounding that.

‘’It is about the suspicious
transactions running into millions of dollars to the suspended
CJN’s personal accounts, all undeclared or improperly declared as
required by law.

‘’It is about the Hon. Justice
Onnoghen himself admitting to the charges that he indeed failed to
follow the spirit and letter of the law in declaring his assets,
calling it a ‘mistake.’”

Against this backdrop, it is clear
that the only case the Federal Government has against Onnoghen, for
which it felt a cause of action had ripened in law, was simply his
non-compliance with the code of conduct for public officers as
regards assets declaration.

But in this, the Federal Government
that is demanding legal rectitude from Onnoghen has shown itself as
unwilling to be procedurally compliant with the law in addressing
its case against the embattled jurist.

This is without prejudice to the
rape of the constitution inflicted on the nation by the president
in unilaterally removing the CJN, for which many have accused the
President as taking to the path of tyrannical
absolutism.

Now the question: Is Nigeria
steadily descending into the rule of a tyrannical despot in light
of the foregoing development?

According to Mark Van Vugt, an
American political scientist, the seven steps to a nation falling
under the rule of a dangerous dictator may be discerned when the
ruler:

1. Begins to expand his power base
through nepotism and corruption

2. Instigate a monopoly on the use
of force to curb public protest

3. Get rid of your political
enemies

4. Accumulate power by manipulating
the hearts and minds of your citizens

5. Create an ideology to justify an
exalted position, among others.

For Olisa Agbakoba (SAN), who had
even gone so far as to bring a case in respect to the independence
of the judiciary, recent developments shows that even the last
vestige of judicial independence in Nigeria has completely been
corroded under the current administration.