By Henry Ojelu
When news of Federal Government’s plan to arraign the Chief Justice of Nigeria, Justice Walter Onnoghen over allegation of false declaration of asset broke last week, several lawyers were quick to react to the shocking development. But the question in the minds of many ordinary Nigerians is; ‘what would the late Gani Fawehinmi have said on the matter if he were alive?’
This is because Gani was one of the few Nigerian lawyers who stood for the truth irrespective of popular opinion. Although gone for over nine years now, a tip of the controversy which his view would have generated was experienced during the week at the 15th Chief Gani Fawehinmi Annual Lecture and Symposium organised by the Ikeja branch of the Nigerian Bar Association, NBA.
While many have condemned the unprecedented development, few stoutly rose in defence of the Federal Government’s plan. The equation of balance among lawyers was evidence with the record number of 89 lawyers who appeared before the Code of Conduct Tribunal in defence of the CJN.
At the lecture, the guest speaker, a former Vice-Chancellor of University of Ado-Ekiti, Professor Akin Oyebode, while speaking on Securing the independence of INEC- A Panacea for Free, Fair and Credible Elections in Nigeria, stoked the controversy when he admonished lawyers to be cautious in their comments on the trial of the CJN.
Slightly addressing the issue, he said: “On the current issue of the trial of the CJN, I wish to advise lawyers not to be in haste in reacting to issues such as this. After all, the CJN from what I read, has even admitted to some of the allegations raised.”
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This did not go done well with a large number of lawyers at the event, some of the Senior Advocates of Nigeria, especially because he made the admonition immediately after praising the virtues of the late Fawehinmi, whom he said was never afraid to state and stand for the truth on any issue despite contrary opinion.
Oyebode by his statement created the impression that Gani’s opinion would have been different from that of majority of lawyers on the issue of the CJN’s ordeal. Several lawyers who spoke after him disagreed.
Former President of Nigerian Bar Association, NBA, Austine Alegeh, SAN, disagreed with Prof. Oyebode’s position by insisting that the right process was not followed in the planned trial of the CJN before the Code of Conduct Tribunal. Alegeh said that while most members of the bar were not contesting the legality of the charge against the CJN, their contention was on the procedure adopted by the Federal Government in prosecuting the head of the nation’s judiciary.
He said: “Before I make my remark on the topic of this lecture, let me first respond to what Professor Oyebode said. I want to clearly state that nobody is in support of crime or criminality. On the issue of the CJN, what many of us are clamouring for and saying is that due process laid down by the law must be followed in the trial or prosecution of any person accused of any crime. The CJN is the number one judicial officer of this country. If he has been accused of any crime, due process must be followed in his trial. The Court of Appeal has affirmed that a serving judiciary officer facing any criminal charge must be referred to the NJC. As at today, that is the law. We must abide by the decisions of the court.”
In his reaction, human rights lawyer, Mr Femi Falana, SAN, reinstated the popular position held by lawyers on the issue and described the FG’s action as prosecutorial misadventure.
Falana insisted that the normal procedure had not been followed. “There is a need to go through the proper channel. The rule of law should be followed when it comes to issues of dealing with the judiciary. What is the locus standi of the National Judicial Commission, NJC, on the issue of the CJN? he queried.
Falana challenged the efficacy of the judgment which most lawyers were really in defence of the CJN’s trial.
He said: “As if that is not enough, the Court of Appeal had just held, rather curiously, that “the Code of Conduct Tribunal has no power or jurisdiction to hear and determine allegations of contravention of any of the provisions of the Code of Conduct Bureau and Tribunal Act or as contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria, 1999 against a President, Vice President, Governor or Deputy Governor, while his tenure of office subsists,” See AG, Federation v. Atiku Abubakar (2007) 8 NWLR (PT 1035) 117 at 155.
“With respect, the decision cannot stand having regard to the fact that complaints of infraction of the Code of Conduct for public officers such as failure to declare assets, operation of foreign accounts or conflict of interest cannot be classified as criminal charges. In view of Part II of the Fifth Schedule to the Constitution which had stipulated that public officers include the President, Vice-President, Governors and Deputy Governors for the purpose of the Code of Conduct, ex-president Olusegun Obasanjo had raised a preliminary objection to the writ of mandamus to have him brought to justice before the Code of Conduct Tribunal to justify the primitive accumulation of wealth by him during his eight-year presidency. The basis of his objection is that he is no longer a public officer.”
Former Lagos State Solicitor-General, Lawal Pedro, SAN,
in his intervention said: “The kind of person Gani is, I am certain that if he were to be alive, he would follow the position of the rule of law and due process. If anybody had gone to court, what does our procedure require? I think that is the position he would have taken too because he is a strong believer in the rule of law. Even if everybody is against the decision of the Court of Appeal, until that decision is set aside, any other person that is not ready to follow the Appeal Court decision is at liberty to do so.
“One thing I know is that Gani may not take the brief of defending the CJN if he were alive. He will also be advising that the rule of law be complied with on both sides. The point has to be made that for the sanctity of the institution, whatever a judge must have done, the NJC must be allowed to first disengage that judge from the system.
“It is even not too good to be prosecuting a sitting judge. How do you want the judge before whom he is being prosecuted to feel comfortable and not intimidated. If he feels that this judge has been retired, he will feel more comfortable to conduct the trial. We know that nobody is above the law, but the judicial system must also be protected. I think Gani in his characteristic manner would insist on the integrity of the judiciary.”
Chairman of the organising committee, Monday Ubani,
in a short remark also reiterated what he described as Federal Government’s attempt to muscle the judiciary. Ubani stated that the Federal Government would be setting a dangerous precedent of lawlessness by using a wrong procedure to prosecute the number one law official in the country.
Another lawyer, Israel Mbaebie, while reacting to the CJN issue, said: “Constitutionally, any judicial officer accused of any criminal offence or gross misconduct may only be prosecuted after the said judicial officer had first been referred to the NJC which may (if an act of gross misconduct is established against such officer) then in turn recommend the arraignment of such erring officer.
“It is, therefore, a cocktail of the most bizarre and absurd to observe the present purported arraignment of the Chief Justice of Nigeria without first referring his case to the National Judicial Council, NJC. This is indeed another fascist move by the Buhari-led administration to ridicule the judiciary which he had demonstrated in more ways than one prior to this time.
“Nigerians will not forget in a hurry how a few years ago, Buhari had invaded the homes of serving justices of our superior courts in gestapo-like manner in the middle of the night and bundled Their Lordships as common criminals. Buhari is at it again.
“Note that this is coming on the heels of the presidential election which is widely believed would be rigged by the Buhari government. The CJN is the only judicial officer constitutionally saddled with the power to constitute a Panel of Supreme Court justices to preside over a possible Presidential Election Panel to hear any possible election petition on the election results.
“The present move is aimed at weakening the judiciary; remove the substantive CJN; appoint Buhari’s puppet as CJN who would in turn appoint other Buhari puppets to preside over the Presidential Election Petition Panel. Remember, Mr. President never supported/liked the emergence of the present CJN as he is not part of his cabal since he came from the South-South.
“I foresee an implosion of the system should Mr. President rig the coming election and proceed to manipulate the judicial process. If there’s any time that Nigerians and the international community need to speak out and speak up, that time is now. Silence may not be golden any more. Buhari has tried this manipulation and weakening of the judiciary before and failed. He will still surely fail this time around.”
Meanwhile, Wale Ogunade who described himself as an ardent follower of Gani said most of the lawyers who expressed their views on the issue, are ignorant of who Gani really was.
He said: “Obviously, you know that I belong to the Gani family. Most of those who came here are not of the Gani family, so they are just speculating. If Gani were to be alive, I can assure you that he will be one of those that will insist that the man should step aside because he has abused the office. In the alternative, he has failed in his conduct.
“This was why the Code of Conduct Bureau was set up to monitor the affairs of public officials. I can also assure you that Gani will never be among the lawyers that will go to court to defend the CJN. Obviously, he will not. If you bring a brief to Gani, the first thing he will ask you is “what is the ground of your case? This is because he wouldn’t want to turn himself to a laughing stock.
“This matter is centred on corruption. Gani will ask a lot of questions in the light of all the allegations surrounding the CJN. Again, I know that Gani would not want to use technicalities to get justice. I also know that Gani will frown at the CJN for not appearing in court on the advice of governors and lawyers. Imagine the bad example he is setting. What this means is that any lawyer can just advice his client not to go to court.”