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The Law And Politics Of Onnoghen’s Trial

Over the weekend, the Federal Government slammed six counts against the Chief Justice of Nigeria, Justice Walter Onnoghen, over his alleged refusal to declare his assets. The news of the arraignment which is scheduled to hold today (Monday, January 14, 2019) has generated heated and endless controversies. In this legal opinion, attempts would be made to resolve a few of the cogent issues; not just for the Justice Onnoghen’s case but for the sake of our democracy and the rule of law.

First, it is a total misconception that the Chief Justice of Nigeria cannot be tried. By virtue of Section 1(1) of the 1999 Constitution, the “Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.” This needs be stated clearly in view of the opinion of some sections that the CJN enjoys immunity. Section 308 of the 1999 Constitution which provides for immunity clause does not cover the CJN. Hence, he is not above the law. Since everybody is subject to the law, the CJN, as “big” as he is can be charged and tried in both civil and criminal matters.

That said, in any occasion where the CJN is to be tried or charged for any offence whatsoever, it must be done according to the law. The position of the law is that any judicial officer (the CJN included) cannot be tried by any court whatsoever (Code of Conduct Tribunal, inclusive) unless the matter in question had been earlier investigated and completely treated by the National Judicial Council. This position was given judicial backing in the recent case of NGANJIWA V. FEDERAL REPULIC OF NIGERIA 2018 4 NWLR Part 1609 Page 301 where it was clearly held that no serving judge in Nigeria can be tried or charged in any court, without the earlier investigation and sanction by the NJC.

Consequently, the charge and arraignment are illegal and unconstitutional, ab initio. From the doctrine of stare decisis, the decision of the Court of Appeal in the above case stands and binds on all authorities and persons (unless upturned by the Supreme Court) as provided for under Section 287(2) of the 1999 Constitution. And since the Supreme Court has yet to give a pronouncement on the decision, it stands to be the law which must be obeyed by all and sundry.

The charge and arraignment are therefore too watery to stand the test of legality. The Federal Government is a creation of the law and cannot be above the law. The rule of law must be respected for it is the bedrock of our democracy. The Supreme Court in MILITARY  GOVERNOR OF LAGOS STATE  V. OJUKWU (2001) FWLR (Part 50) 1779 in explaining the relevance of the rule of law to our democracy held that “government should be conducted within the framework of recognised  rules and principles which restrict discretionary powers.” If the Federal Government cannot respect and uphold the rule of law in its dealing, then, we should all be prepared for chaos, anarchy and unimaginable disaster in our democracy.

The next question that follows is: Being a member and the Chairman of the NJC, would it not occasion a miscarriage of justice for Justice Onnoghen to sit on his matter? In my humble view, the CJN, although part of the NJC, should be excluded from the panel which would be constituted to determine his guilt. It will amount to a breach of one of the cardinal principles of natural justice “nemo judex in causa sua” for him to be a judge in his own cause. See GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 550.

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