President Buhari’s suspension of the Chief Justice of Nigeria (CJN) from office is, in itself, a most condemnable subversion of the Constitution, but his statement while announcing it to the public makes the action so absurdly subversive. Hear what he said:
“A short while ago, I was served with an Order of the Code of Conduct Tribunal issued on Wednesday 23rd January, 2019 directing the suspension of the Chief Justice of Nigeria, Honourable Justice Walter Nkanu Samuel Onnoghen from office pending final determination of the cases against him at the Code of Conduct Tribunal and several other fora relating to his alleged breach of the Code of Conduct for Public Officers.
It is against this background that I have received the Order of the Code of Conduct Tribunal directing me to suspend the Chief Justice pending final determination of the cases against him.
It also explains why I am not only complying immediately but with some degree of relief for the battered sensibilities of ordinary Nigerians whose patience must have become severely overtaxed by these anomalies.
In line with this administration’s avowed respect for the Rule of Law, I have wholeheartedly obeyed the Order of the Code of Conduct Tribunal dated 23rd January 2019.”
The “Administration’s avowed respect for the Rule of Law” and for obedience of court orders sound like a deliberate perversion of truth, as witness Dasuki’s continued detention four years after a court of law ordered his release on bail, and same as Ibrahim Yaquob El Zakzaky two years after he was granted bail. The President is certainly not being sincere with the Nigerian people.
The President’s statement raises several questions, the most crucial of which is as to whether the CCT has the power to order or direct the President to suspend the CJN. Second, whether the President, incarnating the Nigerian state, and as guardian of its Constitution, is bound to carry out the order, even when he knows, as he ought to know, that he has no power to suspend the CJN. Third, do the circumstances in which the order of the CCT was obtained not suggest a pre-meditated plan to subvert the Constitution?
With respect to the first question above, the suspension is manifestly subversive of paragraph 18 of the Fifth Schedule to the Constitution (1999), which provides as follows:
“18. (1) Where the Code of Conduct Tribunal finds a public officer guilty of contravention of any of the provisions of this Code it shall impose upon that officer any of the punishments specified under sub-paragraph (2) of this paragraph and such other punishment as may be prescribed by the National Assembly.
(2) The punishment which the Code of Conduct Tribunal may impose shall include any of the following –
(a) vacation of office or seat in any legislative house, as the case may be.
(b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; and
(c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office.
(4) Where the Code of Conduct Tribunal gives a decision as to whether or not a person is guilty of a contravention of any of the provisions of this Code an appeal shall lie as of right from such decision or from any punishment imposed on such person to the Court of Appeal at the instance of any party to the proceedings.
It is clear from paragraph 18 that:
- only the CCT itself can order vacation of or suspension from office; the President is not empowered to do so, and cannot be ordered or directed by the CCT to do so;
- more importantly, the CCT cannot make an order vacating an office or suspending a person from office until the trial before it is completed and the accused person is found “guilty of contravention of any of the provisions of this Code”; the trial in this case is only just commencing;
- the right of appeal to the Court of Appeal conferred by paragraph 18(4) of the Fifth Schedule is from a decision of the CCT finding the accused person guilty of contravention of the Code, not from the action of the President suspending the accused person from office even when the action (suspension) is on the direction of the CCT; the denial of that right is a violation of the Constitution.
In conclusion, the CCT acted ultra vires the Constitution in making the order directing the President to suspend the CJN from office. The order and the suspension based on it are both unconstitutional, null and void. The order cannot legalise a palpable illegality. We are just pilling illegality on illegality – the illegality of the CCT ex parte order; the illegality of the CJN suspension; the illegality of the appointment of Justice Tanko Mohammed as Acting CJN; the illegality of the swearing-in of members of the Election Tribunals by the Acting CJN. No state anchored on illegality can long endure, much less prosper.
The second question raised above, though not as crucial, is remarkable for its great intricacy. The impression created by his statement is that the President is trying to hide under the cover of the principle that an order of court directing him to do something imposes upon him a duty to carry out the order, notwithstanding that he does not have the power to do the thing in question, and that we are thereby precluded from enquiring as to whether or not he in fact has the necessary power.
The ex parte order the President obtained from the CCT directing him to suspend the CJN from office does not, and cannot, erase the fact that he lacks the power to do that. The New Webster Dictionary of the English Language defines “suspend” to mean “to remove temporarily from an office, to cause to cease for a time from operation or effect”. The power to remove includes, as a necessary incident thereof, power to suspend, with all the limitations on the removal power – see the Interpretation Act which, by section 318(4) of the Constitution, is made applicable to the interpretation of its provisions.
The CJN is both the head of the judiciary, in which role he exercises largely administrative functions, as well as a justice of the Supreme Court; his removal (or suspension) from office as CJN can only be effected by the President with the support of two-thirds majority of the Senate, while his removal as an ordinary justice of the Supreme Court is by the President on the recommendation of the National Judicial Council (NJC) – section 292 Constitution 1999. The suspension (removal) of the CJN from office by the President does not comply with the two requirements of section 292 of the Constitution and is therefore null and void, notwithstanding that it is ordered by the CCT.
The President had followed the suspension of the CJN with the appointment of the most senior justice of the Supreme Court as Acting CJN. The validity of the acting appointment depends on whether there is a vacancy in the office. Without a vacancy, no one can validly be appointed to the office in an acting capacity. Be that as it may, an acting appointment must comply either with any special constitutional provisions relating thereto or, if there is none, then, with the general provisions governing the appointment of a CJN. These require the appointment to be made by the President on the recommendation of the NJC subject to confirmation by the Senate: section 231(1). The 1999 Constitution has no special provision relating to the appointment of a CJN in acting capacity. The general provisions in section 231(1) therefore apply. The circumstances surrounding the suspension of Onnoghen and the hurried swearing-in of Mohammed as Acting CJN suggest that section 231(1) is not complied with in the swearing-in of the latter. The acting appointment is therefore null and void.
In this connection, section 231(4) of the 1999 Constitution differs significantly from section 211(4) of the 1979 Constitution, which reads:
“(4) 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 the office has resumed those functions, the functions shall be performed by a person to be designated from time to time in that behalf by the President, acting in his discretion, from among the Justices of the Supreme Court.
Section 231(4) of the 1999 Constitution is certainly a significant advance in our democratic evolution. What the President has done by the suspension of the CJN in his discretion without recourse to the Senate (or the NJC) is to take us back to the era of personal rule, which is the form of rule to which his career as a military commander has accustomed him. Personal rule and dictatorship is anathema to Nigerians. We want nothing more of that obnoxious system of rule.
After the Federal High Court (FHC) has ordered a stay of proceedings in the prosecution against the CJN and adjourned the case until a named date, the President, being the alter ego of the Federal Republic of Nigeria (FRN), the named complainant, went behind the scene and surreptitiously got the CCT, the supposed impartial arbiter, to order the suspension of the CJN, the other party in the case. This is subversion unchained and running wild to devour the defendant in the suit, and to stifle the system of constitutional restraints on power. By this action the President has lost all his integrity and fitness to govern, and should not remain in office.
The ex parte order issued by the CCT, on which the President relied as authority for suspending the CJN, calls in question the integrity of its chairman, Justice Danladi Umar, as well as his impartiality as arbiter in the matter. Allegation of corruption has been levelled against Justice Umar in the Sunday Vanguard of 15th November, 2015. The newspaper report discloses an investigation by the Economic and Financial Crimes Commission (EFCC) of a N10 million corruption allegation against Umar as chairman of the CCT and the former Deputy Controller-General of Customs, Rasheed Taiwo, N1.8 million of which had reportedly been paid by Taiwo and collected on Umar’s behalf by his personal assistant, Gambo Abdullahi. The newspaper report also disclosed that the two other members of the CCT, Robert Odu and Agwage Atedze, feeling so embarrassed by the allegation, had refused to sit with Umar, and that in a joint letter to former President Goodluck Jonathan, dated April 4, 2014, the two members had said as follows:
“May we with respect draw His Excellency’s attention to the allegation of N10 million bribe made against Justice Danladi Yakubu Umar, current chairman of Code of Conduct Tribunal, Abuja, which is being investigated by the EFCC.
“We, the two members of the CCT and the entire staff, are embarrassed and saddened by this allegation because a tribunal set up to check corruption should not be accused of being corrupt. This would not be in keeping with the transformation agenda of the administration.
“We are mindful of the fact that the Federal Government has zero tolerance policy for corruption, and this is the reason for the establishment of the CCT as one of the agencies to fight corruption in all its ramifications.
“It is our prayer therefore that this allegation will be looked into so that the tribunal can start sitting in the interest of litigants and their counsel.”
The Sunday Vanguard of November 15, 2015 further reported that, based on findings of its investigations on the matter, the EFCC raised a two-count charge against Umar and his PA, Gambo Abdullahi, but for reasons unknown, the Commission later dropped Umar’s name from the charge sheet and took only his PA to court, which left Umar to continue functioning as CCT Chairman and to preside over Saraki’s case, sitting with one other member, Agwadza Atedze, who earlier signed a letter declining to continue sitting with Umar. In the course of the trial of Gambo Abdullahi before the CCT presided over by the same Justice Umar as chairman, the Court of Appeal made an order in March 2018 banning him (Justice Umar) from participating further in the case. At last, Justice Umar has now been charged in court on the corruption allegation. Such is the character and antecedents of the man President Buhari is using for the unpatriotic job of subverting the Nigerian Constitution.
The same Sunday Vanguard issue again reported that, based on the report and findings of the EFCC investigations, the former Attorney-General of the Federation (AGF), Mohammed Adoke SAN, wrote on May 7, 2015 to former President Goodluck Jonathan, as follows:
“I am of the humble opinion that the current state of affairs in which the CCT is unable to sit while the institution is increasingly diminished by a pall of suspicion, should not be allowed to fester as it will expose the institution to public ridicule and undermine this administration’s effort to combat corruption.
“IN the light of the foregoing therefore, Your Excellency may wish to initiate the necessary steps for the removal of the CCT chairman from office.”
What emerges from all these reports is that Umar faces a serious risk of removal from office on corruption charges. The person who has the power to avert or to save him from the risk is the President who, as Head of State, personifies and incarnates the Federal Republic of Nigeria who, as the complainant in the criminal prosecution against Onnoghen is a party to the proceedings. This naturally would create an inclination on the part of Justice Umar, as Chairman of the CCT, to want to ingratiate himself with President Buhari to get him to save him (Umar) from the threatening risk of removal from office. Saving himself from the risk of removal from office creates in Umar a personal and even a pecuniary interest in the case, in the form of his remunerations and other perquisites of office, which would incline him to want to favour FRN against Onnoghen. See on this, Adebesin v. State (2014) 4 S.C. (Pt 111) 151. In addition, FRN, personified and incarnated by President Buhari, is Umar’s employer and Umar is its employee. It has been held by the Court of Appeal in Adio v. Att-Gen Oyo State (1990) 7 NWLR 451 that the employer-employee relationship is a circumstance that gives rise to bias. It is not reasonably to be supposed or be expected that Justice Umar can be impartial or unbiased in adjudicating the case between the Federal Republic of Nigeria (FRN) against Onnoghen. There can be no greater mockery of the whole notion of impartiality in any adjudicatory system than that Umar, with the threat of removal from office by the FRN hanging over his head, should have been allowed to adjudicate as presiding judge in the circumstances of this case. Bias on the part of Umar seems to be clearly manifest in all the circumstances surrounding the case.
As the Court of Appeal held in Omoniyi v. Central School (1988) 4 NWLR (Pt 89) 458, “the term ‘real likelihood of bias’…must mean at least ‘a substantial possibility of bias.’” The Court adopted the words of Lord Denning MR in Metropolitan Properties Co. Ltd v. Lannon, [1969] 1 Q.B. 577 at p. 599, as follows :
“In considering whether there was real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of a tribunal, or whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.
However, it is necessary that there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, of a tribunal would or did favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly. Suffice it to think that people might think it did. The plain reason for this is that justice is rooted in confidence; and confidence is destroyed when right-minded people go away thinking: the Judge is biased.”
Thus, in this case, if actual bias is not present, a real likelihood of it does clearly exist.
When bias or the likelihood of it is present in a case, as in the Onnoghen case, its effect, as the Court of Appeal held in Denge v. Ndakwoji (1992) 1 NWLR 223, is not only to diminish the stature and integrity of the judge, but also to destroy the foundation of his judgment, however sound and consistent with the Rules of Court, pleadings and evidence”, citing in support Omoniyi’s case, supra. In more precise terms, it vitiates the entire proceedings. “If actual bias is proved”, the Supreme Court held in a 2014 case, Adebesin v. State (2014) 4 S.C. (Pt 111) 152, “the proceeding is flawed and vitiated for contravention of section 36 of the Constitution of Nigeria 1999:” see the numerous other decisions to the same effect cited in the above cases.
In the instant case, the ex parte order made by the Code of Conduct Tribunal (CCT) under Justice Umar as chairman, directing President Buhari to suspend Justice Onnoghen as CJN, is null and void, having been made under the influence of bias or likelihood of bias.
It is surprising that in spite of all this, Justice Umar is still in office as chairman of the CCT, which suggests that he is being kept there as part of a pre-planned subversive design aimed at manipulating the 2019 presidential election.
This sad episode in our history would not be completely resolved by the resignation of Justice Onnoghen, as is being suggested in some quarters, unless the President, as the person who brought this whole mess upon us, also resigns. The Attorney-General of the Federation (AGF), Abubakar Malami (SAN), and Justice Danladi Umar must also resign.
Professor Ben Nwabueze
