Godwin Tsa, Abuja
Mr Chukwuma Machukwu Ume, SAN, is a former Attorney General and Commissioner of Justice in Imo State. He was also part of the defence team assembled by the former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, at his trial before the Code of Conduct Tribunal (CCT).
In this interview, Ume who is well grounded in criminal law jurisprudence accused the judiciary of betraying the former CJN, who was convicted by the tribunal for non-declaration of his assets. Excerpts:
You actively participated at the trial of the former CJN, Justice Onnoghen as one of his defence lawyers. In your own opinion, would you say the trial was politically motivated?
The trial of former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen has nothing to do with the fight against corruption. This is because you can’t fight corruption when you have a different intention. The trial was a halfway measure of fighting corruption. Many who the nation knew about their corrupt behaviours are swept under the carpet. For instance, the Maina and allegations of corruption in the Ministry of Information. I don’t know how we have sincerely fought them. The trial of former CJN was geared towards achieving a political goal. Yes, it was only geared towards a skewed purpose and not a national interest agenda. When you use state infrastructure to achieve a political ambition, then it is a total disservice to the nation. Corruption should be fought for the purposes of eradicating corruption. Corruption should not be fought for the purposes of furthering our personal political interest.
It is unfortunate that the Rule of Law was thrown to the dustbin in those proceedings. Coming to the judgment itself, it is most unfortunate that it was a colouration, there was already a predetermined goal in the prosecution. The evidence before the tribunal showed abundantly crystal that there was no case established against the former CJN. The said assets declaration forms were not verified, Section 3 of the Code of Conduct Bureau Act was thrown to the dustbin, as admission of mistake leads to exoneration, according to law, and not guilt.
So, from the formation, the intention to try, the arraignment, the trial wherein, court orders were thrown to the dustbin to the judgment, which was based on no evidence known to law, showed that the whole art was set to a point of no return. It is like when a plane gets to its final acceleration, there is no other way that you can ask the plane to stop from taking off. The sole motive was set at a point of no return, it doesn’t matter how the nation’s soul was bleeding, it doesn’t matter how the rule of law was thrown to the dustbin. It doesn’t matter how our constitutional democracy and independence of the judiciary was thrown to the mud. All that mattered was the political interest. To what extent can a country grow when individual interests supersede national interest; it’s why the 6th largest producer of petroleum cannot have a refinery.
We now spend every given resources on shabby ‘subsidy’. Everyday, the power sector is getting worse. No will, no agenda, no fund for a better future for all. The fact of subjecting national interest making it subsidiary to personal political interest will continue to manifest the way our petroleum sector is being handled.
Will the trial and subsequent conviction of the former CJN re-awake the call for the independence of the judiciary?
No, it doesn’t call for further judiciary independence. It was because the judiciary simply failed and refused to assert itself in the trial of Onnoghen. The judiciary needed nothing more because the constitution has given it enough powers to have asserted itself in the trial. We did not have the National Judicial Council (NJC) in 1970s. There was no such elaborate provision for the independence of the judiciary when Lankanmi case was heard and a nationally minded honourable judge declared military rule unconstitutional during the junta era. There was no such provisions when in 1985, in the case of Aper Aku vs Unongo, the Supreme Court stood up and threw away and declared as unconstitutional, the provision of an Act by the National Assembly, dictating to the judiciary time limit, within which to hear and conclude election petition matters. Justice Muhammed Uwais and the rest other panel of justices of the court struck out that provision.
The honourable court held that apart from constitutional provisions, the National Assembly cannot sit down and dictate to the judiciary, how to handle cases. That is what gave rise to the constitutional provision now wherein the election tribunal, the Court of Appeal and the Supreme Court have limited period of time to hear and conclude election petitions as provided by the Constitution. Constitution and Acts of National Assembly are not of same standing. That was the message of the honourable court. Has Nigeria not benefited from the national stand of the honourable court of Hon Justice Uwais era? So, the inability of the judiciary to have asserted itself today when their own was involved is not because it was not independent, but because the likes of the Lankanmi honourable judge and Hon Justice Uwais are no longer there.
What is the implication of the trial and conviction of Justice Walter Onnoghen on the judiciary and nation’s democracy?
The implication of Justice Onnoghen’s conviction is that judges who have been granted immunity by the constitution as encapsulated in the case of the Court of Appeal decision in Nganjiwa vs Federal Republic of Nigeria (2017) LPELR-43391 (CA), to the effect that any misconduct attached to the office and functions of a judicial officer, must first be reported to and handled by the NJC, pursuant to the provisions of the law. So, before you know what is happening, a sitting state governor from the opposition political party can be removed through the Code of Conduct Tribunal. Soon, the constitutional powers for the recall of members of the state and national House of Assembly will now be replaced by using the CCT. In the upcoming days, Nigeria is going to witness interesting development. This is because, once the rule of law is thrown away, it will become the rule by might. It is always not good to allow a mad dog to chase away your enemies because when your enemies are gone, the mad dog will come after you.
Was the tribunal right or wrong to have reversed itself in its judgment on Justice Sylvester Ngwuta?
In the case of Onnoghen, the tribunal has the opportunity to stand its ground and abide by the subsisting decision of the Court of Appeal in Ngajinwa vs Federal Republic of Nigeria, as it rightly did in the case of Justice Ngwuta, but no, it reversed itself because a particular goal must be achieved. And anything that will stop the attainment of that goal must be discarded whether rightly or wrongly. You know the court cannot reverse itself because it is functus officio going by the principles of functus officio. But this was a political management, it is expeditious trial and judgment, so court orders were thrown away. That shows that the agenda has reached a point of no return. Before the judgment, there were four interlocutory appeals pending at the Court of Appeal.
Whereas political matters and election matters were treated with dispatch, and judgment delivered within hours, the appeals of the Chief Justice of Nigeria, eight weeks after arguments had been taken, have been kept away in the file. At the Supreme Court, there was a suit by the Cross Rivers State government against the Federal Government over Onnoghen’s trial and suspension and I am part of the legal team. But when the matter came up, it was adjourned to May. This is a case where your own is not only involved, but which also seeks your own protection. And you adjourned it to May! It is Onnoghen today, he is gone; who knows who will be the next victim?
What are the lessons and way forward for the judiciary?
The constitution should be amended to give attention to the need for the CCT to secure its independence, impartiality and non-interference from external forces. A situation where the executive arm of the Federal Government is the custodian of the Code of Conduct for public officers, the enforcer of the Code of Conduct through the tribunal, it is the appointing authority of the members of the tribunal. In the proceedings in the tribunal, the executive is the accuser, the investigator, prosecutor, the witness and the judge, all roll together into one. This is unacceptable under the Constitution that guarantees independence of the three arms of government. There is urgent need for constitutional reform.
The Code of Conduct Tribunal must have courts established in each of the six geopolitical zones of the Federal Republic of Nigeria. Monopoly has the ability to breed corruption, arrogance, disregard for due process and partiality. The Code of Conduct Tribunal should be a full member or part of the judiciary under Section 6 of the Constitution of the Federal Republic of Nigeria (as amended). Another lesson is that the case has clearly shown that Nigerian judiciary is very weak, vulnerable and not independent.
The security of tenure of a judicial officer is a mere wishful thinking. It is unthinkable, unimaginable that the head of the judiciary will be treated the way Onnoghen was treated and not a whimper came from the body of men and women of highest distinction in the legal profession. Is it not dangerous that the president can appoint a Chief Justice without the recommendation of the National Judicial Council (NJC)? The final lesson is let us not continue to deal with persons as if they are not creation of God. There are so many other ways we can achieve our aim without personal dehumanisation.