The final word on the suspension of the Chief Justice of Nigeria

In the evening of Friday, 25 January 2019, Nigerians were greeted with the news that President Muhammadu Buhari had suspended the Chief Justice of Nigeria (CJN) Walter Onnoghen.

The move has divided the country and raised concerns of a constitutional crisis. In this explainer, we give the final word on the suspension of the CJN and outline the implications for Nigeria. 

Why was the CJN removed?

On 7 January 2019, the Anti-Corruption and Research-Based Data Initiative filed a petition against the CJN at the Code of Conduct Tribunal (CCT). The petition alleged that the CJN had failed to declare his assets properly and had managed several foreign currency accounts in “a manner inconsistent with financial accuracy". In his response, the CJN explained that he failed to comply with the CCT Act because he forgot.

Meanwhile, restraining orders were obtained both at the Federal High Court, and the National Industrial Court essentially stopped the CCT from continuing with the proceedings against the CJN. However, the CCT ignored these on the basis that the orders were issued by courts of co-ordinate jurisdiction, i.e. these courts are not superior to the CCT and cannot bind it. 

Then, on 23 January 2019, the CCT granted an order with two directives (the CCT order was given without notice to the other party):

1. The defendant should step aside as CJN and the chairman of the NJC for contravening the provisions of the Code of Conduct Bureau and Tribunal Act; and

2. The President should take all necessary measures to swear in the next, most senior justice of the Supreme Court of Nigeria as the acting CJN and Chairman of the NJC.

Finally, in a statement on 25 January 2019, the President announced the suspension of the CJN, in line with the CCT order. 

Was the CJN properly suspended?

Constitutionally, no. 

The CCT Order directed the CJN to step aside and did not direct the President to suspend him. But as the CJN ignored the CCT order, was the President justified in acting to suspend him? 

Firstly, it is crucial to consider section 292(1) of the Constitution which expresses the conditions for removing a judicial officer. It states that a judicial officer:

''Shall not be removed from office or appointment before his age of retirement, except in an instance (among others), by the President, acting on the recommendation of the National Judicial Council that the judicial officer be so removed... for misconduct or contravention of the code of conduct.''

So, the first condition that must be satisfied is that the President is acting on the recommendation of the NJC. Where there is no such recommendation, the President needs to be acting on an address supported by a two-thirds majority in the Senate. 

It is worth looking at the provisions of the Nigerian Interpretation Act which is a statute enacted to help interpret Nigerian laws. Section 11 of the Interpretation Act provides that the power to appoint a person comes with the power to remove them. This is worth noting because the President cannot appoint a CJN without the approval of the Senate and the recommendation of the NJC, so he should not be able to remove the CJN without these two conditions. 

The future of the Judiciary

There are also political questions that cannot be answered by the Constitution. 

The acting CJN Ibrahim Tanko is widely regarded as the President's “own man” at the helm of the Judiciary. The political conclusion is that these are all calculated attempts to tilt the playing field ahead of the elections. The APC has also referred to Justice Onnoghen as the PDP's 'trump card'. In the context of Nigeria’s democracy, this is dangerous territory.

Considerations of Nigeria's democracy are pertinent here in light of the principle of separation of powers; in essence, the three arms of government can check each other but cannot control each other. It is why the CCT was able to arraign the Senate President even if the President cannot intervene in the Senate.

Furthermore, introducing politics into the Judiciary—the most neutral arm of Government—ought to alarm all citizens. Also, the proposed resolutions to the debacle are all unsatisfactory. Some have argued against Onnoghen staying in office, and others have called for Tanko's removal for unconstitutionally accepting the elevation to the CJN role. A proposal being mooted by the NJC is the dismissal of both Justices Onnoghen and Tanko, to move the court beyond this sordid affair. But can the Court survive the encroachment of politics and ethnic division in its affairs?

In the coming days, there will be more resolution about the process. Already the Court of Appeal has declined Onnoghen's request to dismiss the CCT's hearing. The NJC has given both parties seven days to respond to its queries, and the Senate is investigating further.

While it is tempting to look at the CJN issue through a single lens—politics, ethnic divisions, corruption, etc.—we would do well to remember the spirit of the law and the backbone of Nigeria’s democracy. When complicated issues come to the fore, the wisest choice is often going back to basics. And on that reading alone, the suspension of the CJN was a step too far.

Follow this Writer on Twitter @Mr_Mitch_A. Subscribe to read more articles here.