IN HIS ILLUSTRIOUS career
spanning several decades
Justice Walter Samuel Nkanu
Onnoghen has had the judicial
responsibility of deciding the
fate of people who are put in
front of him for trial.
He did not know that at
some point in his life he would
go through some sort of trial
himself. By doing his job over
the years successfully he knew
that by the seniority ranking of
the Judiciary, he would at the
retirement of Justice Mahmud
Mohammed, that tall and
eloquent dispenser of cerebral
legal verdicts, step into his big,
made-in-London shoes.
He did not step into that hot
seat the next day or the next
week or even the next month
after Mohammed’s exit.
What went wrong? The
National Judicial Council had
nominated Onnoghen as the
next Chief Justice of Nigeria
and forwarded his name
to President Muhammadu
Buhari on October 13, 2016.
His own duty was to send the
man’s name to the Senate for
confirmation.
He did not. Instead, he
appointed Onnoghen as
Acting Chief Justice of
Nigeria for three months.
Before the expiration of the
three months, Buhari had
jetted out to London on
medical vacation and the
Vice President, Professor
Yemi Osinbajo had to act as
President. As Onnoghen’s
short term was about to expire
and uncertainty became the
only certainty, Osinbajo sent
Onnoghen’s name to the
Senate and also extended
his acting appointment. No
one gave any explanation for
this tardiness. Was Buhari
investigating Onnoghen?
Was he uncomfortable with
Onnoghen’s alleged judicial
radicalism or did he simply
want to replace him with
someone whose hymn book is
the same as his own? Or was
he simply unable to make up
his mind one way or another
about the man? In fact, did he
have the powers to withhold
the NJC’s recommendation?
Questions, no answers.
Onnoghen was obviously
on trial for being qualified, by
every account, to be the next
Chief Justice of Nigeria.
Onnoghen is from Cross
River State so politicians from
that state threw their weight
behind him. He is also from
the Niger Delta region so
Chief Edwin Clark and his
group concerned about the
fate of that beleaguered region
weighed in on Onnoghen’s
behalf. Lawyers, human
rights groups and news media
expressed their views largely
in favour of the judge.
Among them were
eminent senior advocates Wole Olanipekun and Afe
Babalola who held the view
that Onnoghen, having been
recommended by the NJC, as
the most senior Judge in the
Supreme Court deserved to take
the chair at the apex court.
However, one man who
stood out in the controversy
was Professor Itse Sagay, an
eminent senior advocate who is
the chairman of the Presidential
Advisory Committee Against
Corruption.
He said that the matter “has
generated a lot of heat, acrimony
and self-generated anger
without generating a single
ray of light.” He said he is a
lawyer and someone who is a
beneficiary of informal sources
of information.” If this gratuitous
remark was expected to put a
question mark on Onnoghen’s
eligibility for the office it flopped
miserably because the public
was not interested in his opague
gyration but in something
tangible, investigateable and
proveable.
He offered none. He simply
intoned magisterially: “the
president is the appointor. He
is not a cipher or a robot who
has to pass on a nomination
coming from the NJC to the
Senate without discretion, input
or without the right of rejecting
such an appointment and
calling on the NJC to send other
nominations.”
I combed through the 1999
constitution and I saw no
provision of such discretionary
powers granted to the president.
But in the 1979 constitution
there was one in Section 211
(1). That section said that “the
appointment of a person to the
office of CJN shall be made by
the President in his discretion
subject to confirmation of
such appointment by a simple
majority of the Senate.” It is
apparent that the learned framers
of the 1999 constitution were
unhappy with the provision for
an executive discretion.They therefore deleted
that provision. So three
things must have happened
(a) Sagay may have either
read the 1979 constitution or
(b) he may have wanted to
make a verbal insertion of
presidential discretion in the
1999 constitution or (c) he was
simply playing the advocate. I
take it that he was playing the
advocate.
The function of an advocate
according to David Pannick,
a famous Queen’s counsel in
London, who has written a
book titled, “Advocates” is to
“advance one point of view,
irrespective of its inadequacies.
He must belittle other interests
whatever their merits. His task
is to seduce, to seize the mind
for a pre-determined end, not
to explore paths to truth.”
In other words, the advocate
simply works for whoever pays
for his voice. He doesn’t work
for a higher cause. His aim is
to convince or confuse. Sagay
must have been a brilliant
student of Pannick. Pannick
represented the Sunday Times
in the famous Spycatcher
case and Penguin Books in
the Salman Rushdie’s Satanic
Verses matter.
More sensationally he
successfully defended a
waitress who complained that
she had been dismissed from
her job because her employers
considered her bust too large.
In the Onnoghen matter,
Sagay was waxing eloquent
in the manner that advocacy
demands but the public did not
seem convinced or confused by
his verbal exertions. And worst
of all, he did not bring forth any
ray of light that can help us to
find the way now or in future.
All of that is history now.
Onnoghen is now the “tearrubber”
Chief Justice of Nigeria.
While the matter was being
heard in the Court of Public
Opinion, Onnoghen issued a
cautionary statement asking people not to put pressure on the
President to do his duty.
The public recognised that to be
the voice of a decent man but they
also knew that the matter went
beyond Onnoghen as a person.
It was likely to determine the
fate of our institutions, the fate
of procedures and precedents.
It was also likely to determine
whether the appointment of the
CJN should be left to the whims
and caprices of the President and
the shenanigans of black market
lobbyists and auctioneers.
That would be a degradation of
that office.
Onnoghen’s appointment
is a small punch for the semiseparation
of powers and
another small punch for the semi
independence of the judiciary.
Taken together the two small
punches constitute a huge punch
for our democracy. I use the word
semi advisedly because each arm
of the government depends, to
a major or minor extent, on the
others for its smooth sail.
For me there are three big
challenges that await Justice
Onnoghen. I call them the three
Cs: corruption, congestion,
constitution. Corruption is a
gargantuan problem in Nigeria
and the judiciary has not been
quarantined from it. So I see the
problem from two perspectives:
corruption in the judiciary and
corruption in the larger society.
The stench of it wherever it
occurs besmirches our image,
assaults our nostrils and our
Nigerianness.
The judiciary under
Onnoghen’s watch will have to
give it a fight through its judicial
decisions and through an internal
fumigation process.
The last CJN, Mahmud
Mohammed, gave an idea of congestion of cases at the
Supreme Court when he
retired. In the 2014/15 legal
year the Supreme Court
heard 1,578 matters and
delivered 262 judgments.
In 2015/16 it heard 1,489
matters and delivered 268
judgments. In that legal year,
he said 500 new appeals were
filed meaning that there were
about 10 new appeals per
week.
At his departure, there
were more than 5000 appeals
pending. He decided to
constitute a second panel
of the Supreme Court and
to explore an Alternative
Dispute Resolution. It
might be useful to explore
ways, through some kind of
legislation, that some cases
can terminate at the Court of
Appeal. It may also be useful
if special courts could be set
up for corruption as well as
constitutional cases.
The success of these
proposals depends on the
acceptance of them by the
Executive and the Legislature
as worthy causes to pursue.
But most cases at the Supreme
Court come on appeal from
the Court of Appeal.
The Court of Appeal
receives cases from the High
Court. So the large chunk of
cases at the Supreme Court
derives from the avalanche
of cases at the lower courts.
Members of the Bench, Bar
and Legislature must find
ways of reducing congestion
of cases at various levels. If
that happens at the lower
courts the Supreme Court
will be happy to handle fewer
cases.
The third C concerns
constitutional rights of
Nigerians. Rights enshrined
in the constitution are
currently on trial in Nigeria.
Court orders are brazenly
disobeyed and people’s rights
are marched with impunity.
Most Nigerians would like
to see a Judiciary that seeks
to uphold the freedoms and
human rights inscribed in
the 1999 Constitution. The
Supreme Court must work to
strengthen the pillars of our
democracy so that they are not
pulled down by the ferocious
forces of dictatorship.
An activist Judiciary that
interprets laws in a manner
that seeks to liberate people
from the shackles of bad
policies and bad government
can be an eminent enhancer
of the people’s wellbeing.
Justice Onnoghen must
remember every minute of
his day on the CJN’s chair
that the constitution was
almost subverted to his
detriment but for the strong
roar of dissent from the
people.My closing argument
is: My Lord, please make
your administration peoplecentred
because the people
stood toe to toe with you at
your trial. And triumph.


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