Lawyers’ reactions to Onnoghen’s alleged false assets declaration trial at CCT

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Ime Akpan

The news of the arraignment of the Chief Justice of Nigeria (CJN), Mr. Walter Onnoghen before the Code of Conduct Tribunal (CCT) today for alleged non-declaration of assets elicited reactions from members of his professional constituency, legal practitioners.

At the hearing today, the chairman of the tribunal, Mr. Danladi Umar, adjourned proceedings till January 22 after the lead prosecuting counsel, Aliyu Umar (SAN), conceded that Onnoghen was not properly served with the charges and the summons.

The CJN’s arraignment followed a petition by the Anti-corruption and Research Based Data Initiative (ARDI) alleging some illegal transactions discovered in the CJN’s bank accounts.

The petition, dated January 7, 2019, was signed by ARDI Executive Secretary, Dennis Aghanya, and was stamped “received” by the office of the CCB chairman on January 9.

The petitioner alleged that that “Onnoghen was the owner of sundry accounts primarily funded through cash deposits made by himself up till as recently as 10th August, 2016, which appear to have been run in a manner inconsistent with financial transparency and the code of conduct for public officials.”

ARDI also alleged that Justice Onnoghen made five different cash deposits of $10, 000 each on March 8, 2011 into Standard Chartered Bank Account No. 1062650; two separate cash deposits of $5000 each followed by four cash deposits of $10, 000 each on June 7, 2011; another set of five separate cash deposits of $10,000 each on June 27, 2011, and four more cash deposits of $10,000 each the following day.

Consequently, CCT confirmed the scheduled arraignment of the CJN on a six count criminal charge bordering on non-declaration of his assets.

Reactions to the arraignment have not been in short supply. Here are some.

Assault, intimidation and desecration of the judiciary -NBA

“Nigerians have witnessed again the targeted assault of the judiciary by agents of the Federal Government of Nigeria (“FGN”) epitomized by today’s media trial of the Chief Justice of Nigeria, Honorable Mr. Justice Walter S N Onnoghen, GCON (“CJN”). According to media reports which have now been validated by the Statement of the Code of Conduct Tribunal (“CCT”) that was released today an application was “filed by the Code of Conduct Bureau to the CCT Chairman yesterday for the trial to commence against the Chief Justice of Nigeria on six count charges” and that the CCT “will commence the trial on Monday, 14th January 2019”. The Nigerian Bar Association unequivocally condemns this assault, intimidation and desecration of the Judiciary by FGN agencies and demands that it be stopped immediately.

“In Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391(CA), the Court of Appeal made it very clear that any misconduct attached to the office and functions of a judicial officer must first be reported to and handled by the National Judicial Council (“NJC”) pursuant to the provisions of our laws. Only after the NJC has pronounced against such judicial officer can the prosecuting agencies of the Federal Government proceed against him. As the Court pointed out, these requirements of the law are anchored on the overriding principles of separation of powers between the executive, the judiciary and the legislature and on the need to preserve, promote and protect the independence of the judiciary. Our respective liberties and the rule of law are best protected and preserved if the judiciary remains independent and shielded from intimidation and assault by the other arms of the government.

“In Nganjiwa v FRN (supra), the Court of Appeal made reference to Rule 3 of the Revised Code of Conduct for Judicial Officers of February 2016 (“Code of Conduct for Judicial Officers”) and held that the said Rule 3 “makes provision in relation to fidelity to the Constitution and the Law”. The provisions in regard to assets declaration as they apply to all public officers including the CJN are contained in both the Constitution and the Code of Conduct Bureau and Tribunal Act 1991, the enabling law that establishes both the Code of Conduct Bureau (“CCB”) and the CCT. The fidelity which judicial officers therefore owe “to the Constitution and the Law” pursuant to Rule 3 of the Code of Conduct for Judicial Officers encompasses compliance with the provisions relating to assets declarations as contained in the Constitution and the Code of Conduct Bureau and Tribunal Act. Any infraction in that regard by a judicial officer, as the Court of Appeal rightly held, constitutes misconduct by the judicial officer and becomes the subject matter for discipline by the NJC as a condition precedent to any possible prosecution of the judicial officer by any of the FGN’s prosecuting agencies.

“Why has FGN decided to embark on this anomalous course of charging the CJN before the CCT without first presenting whatever facts it purportedly has against His Lordship to the NJC for its deliberation and determination? The Petition that triggered the CCB action was on its face received by the Bureau on 09 January 2019 and the Charge was promptly drafted and is dated the following day, 10 January 2019 – giving the CCB a record 24 hours for completion of its investigation and the drafting of the said Charge and ancillary processes! If one contemplates the fact that the CCT arraignment is scheduled to take place on 14 January 2019, we have in total a record number of 3 (three) working days between the receipt and processing of the petition, investigation, preparation of Charge and ancillary processes and the arraignment! Such unprecedented speed and efficiency in Nigeria’s criminal justice administration! It is clear, given the rush with which this matter was conducted by the CCB, that the NJC was not privy to it and did not conduct its mandatorily required disciplinary processes prior to the filing of the Charge before the CCT.

“We still wonder why the FGN choose to deviate from the laid down and explicit provisions of the law as expounded in Nganjiwa v FRN (supra). Could it be that it was misadvised? Or is this a naked show of power and force by agencies of the FGN? And why embark on the media trial of the CJN? This, unfortunately, is a predilection of the FGN’s prosecuting agencies with the possible exception of the Federal Ministry of Justice. As the NBA pointed out in its International Anti-Corruption Day Statement that was issued on 09 December 2018 “media trial of persons charged with corrupt practices . . . amount to corruption itself. Indeed, those orchestrated media trials degrade and corrupt the justice administration system quite apart from the incalculable (but obviously intended) damage that it does to persons who may ultimately be discharged and acquitted. In point of fact, it is corrupt practice to use as license or hide under the cover of the fight against corruption to recklessly destroy the names, characters and reputations of persons who have not been found guilty of corrupt practices by competent courts and who may ultimately be pronounced innocent of such charges.” These media trials must, alongside the on-going desecration and assault of the judiciary, cease forthwith.”

Femi Falana –Charges violate subsisting court ruling

Human rights lawyer, Mr. Femi Falana has asked the attorney-general of the federation and minister of justice, Mr. Abubakar Malami, to withdraw the charges of non-declaration of assets instituted against the CJN.

He said the charges were filed in violation of the subsisting judgment of the Court of Appeal which had shielded serving judicial officers from being investigated or prosecuted until they were disciplined by the National Judicial Council.

He said if the case was not withdrawn, it would likely end up as “a prosecutorial misadventure.”

Falana recalled that the CCT where the CJN was charged, had applied the Court of Appeal’s judgment when it on May 15, 2018, dismissed similar charges instituted against a Justice of the Supreme Court, Justice Sylvester Ngwuta.

“The charge against the Chief Justice of Nigeria, Justice Walter Onnoghen, ought not to have been instituted at the Code of Conduct of Tribunal in view of the case of Nganjiwa v FRN (2017) LPELR 43391 wherein the Court of Appeal held that a judicial officer who has not been investigated by the National Judicial Council and sanctioned for misconduct cannot be arraigned in any criminal court in Nigeria.

“The CCT had earlier applied the same judgment in the case against Justice Ngwuta, so it cannot now overrule itself.

“As all authorities are bound by the Court of Appeal verdict the case should be withdrawn by the AGF without any delay because it is likely to be a prosecutorial misadventure,” he said

Trial belittles the judiciary -Afe Babalola

Dr. Afe Babalola described the trial as denigration of the country’s judiciary and constitution.

Babalola said in a statement that the law has made the processes for the trial of judicial officers and as well their removal clear, hence the need to desist from contempt and denigration of the judiciary.

“I am of the view that the constitution requires that any infraction by the said judges be firstly investigated and resolved by the National Judicial Council to the exclusion of any other body or authority.”

He said the decision of the Court of Appeal in Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391(CA) “still subsists and has not been set aside.”

“I therefore see no justification for the decision to arraign the CJN before the CCT.

“Again the point must be made clear that the constitution clearly provides for the procedure with which the CJN can be removed from office. Section 292(1) (a) (i) and 292(1) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) addressed it,” he added.

Nigeria has become dictatorial, absolutist state -Mike Ozekhome

Constitutional lawyer, Mr. Mike Ozekhome said in his reaction that the tradition of subjecting the leadership of other two arms of government to harassment and intimidation will result to heavy disinvestment in the country, as it will create the impression that Nigeria is not safe for investment.

 He described the charges of false assets declaration as vindictive, very political and showed that Nigeria has finally become an anarchical state, dictatorial, despotic, totalitarian and absolutist state.

 “It took about six months before President Mohammadu Buhari confirmed Justice Onnoghen as the Chief Justice of Nigeria. He did not want to confirm his nomination. Nigerians cried out on the television, in the print and on social media against the injustice perpetuated by the executive.

 “We argued that under the Constitution, Justice Onnoghen was the next in rank and having not done anything wrong, he should be confirmed, and finally, he was confirmed. I want to believe that they confirmed him because they did not find anything wrong against him,” said Ozekhome.

 He asked: “How come then that more than one year into his tenure as the CJN and less than 40 days to the 2019 Presidential election when the Chief Justice is expected to play a major role of setting up a presidential election tribunal, they suddenly remembered that Onnoghen had operated a domiciliary account in 2010 and 2011, more than eight years ago?

 “How come they did not find out this fact or this so-called allegation in almost one and half years ago that he has been the CJN? How come it is coming on the eve of election?

 “How come the so-called game show, the petition was written on January 7, two days later, it was received by CCB, two days after, the charges were filed and on Monday, the CJN would be put on trial?

How come that they also quickly came up with another motion that the CJN should excuse himself?

 “How come these things are done within the space of five days within which the CCB could not confront the person accused with the evidence or allow him to replay?

How come these people are undermining our criminal justice system, which presumes one innocent until proven guilty and they are turning to a French model where you presume an accused guilty before he is proven innocent?

 “How come they are undermining Section 36 of the Constitution, which presumes one innocent until found guilty? How come these people are turning Nigeria into a laughing stock before the comity of nations?

It’s indecent and revolting -Oguneso

A Senior Advocate of Nigeria (SAN), Mr. Rotimi Oguneso, expressed shock at the development and wondered the role of the president’s legal advisers in the matter.

“It is shocking. Honestly, I do not know who is advising the government. We are yet to know the truth about the allegations. But which country will dock its number one judge in this manner? You serve the Chief Justice with papers on Friday expecting him to be in court on Monday!! It is indecent and revolting.

“Why this time? Is it to heat up the polity? There is something called discretion. I can’t see it in what has been done,” he said.

Onnoghen is not above the law –chairman, Presidential Advisory Committee Against Corruption (PACAP), Prof. Itse Sagay

“Honestly, I don’t know what the hullabaloo is about. The law is very clear about what public officers can do and cannot do under the Code of Conduct Bureau, including declaration of assets. And that is a subject that can be determined mathematically. It is either you declared, or you did not declare your assets; there is no exception.

“The rule of law doesn’t know any exception. Nobody is above the law. It can happen to me, it can happen to you if you are in public office. It is compulsory that one must declare assets. So, what has to be determined by the tribunal based on the evidence before it is whether he did declare or did not declare his assets? That’s mathematically certain.

“So, what all the noise is about, I don’t know. I would have thought that those who have sympathy for the chief justice would have said there is nothing to worry about; the truth would come out at the tribunal and it would be established that he has nothing to answer for.

“And that would be the end of it. But there is a lot of confusion and cloud being thrown all over. There is a frenzy; I don’t understand why this is so. Are you saying that somebody who occupies high office cannot answer to a breach of the law? It doesn’t make sense to me.

“It just shows that something is wrong and those who are behind this are the elite – top elite, the Senior Advocates; all those who think that to living in a society is to gather privileges without any responsibility and if anyone of them is challenged about it, then the roof has to fall.

“My view on this matter is, let the matter come before the tribunal, let the prosecution make his case, and let the chief justice’s lawyers and himself show clearly that the case is wrong and that he is innocent. That’s it. It is very simple.”

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