Reuben Abati: The Onnoghen Case & Other Stories

I find it incredulous that a ruling government that seeks a second term in office and about which doubts have been expressed with regard to its performance, the competence of its officials and the quality of its service delivery would embark on a series of self-immolating adventures that can only further alienate it from the people it seeks to serve.

The manner in which the Buhari administration has been summersaulting in the public domain barely three weeks to Nigeria’s 2019 general election is suicidal. It is a wrong time to launch an attack on key institutions of state and the psyche of the average Nigerian. Except there is something else that the advisers of this government know that we do not know, what we know is that election season is the best time, and perhaps the busiest period when Nigerian politicians try to put their best leg forward. It is that season when they make an effort to mend fences. But what we have seen is an incumbent Federal Government that has been going out of its way to make enemies unnecessarily, violate the integrity of institutions, court avoidable controversies and give the sad impression that the 2019 general election can be determined with or without the people. It is in order, therefore, to consider the arrogance of the state and the system insufferable. As a strategy, if that is what it is, this is indeed unbelievable.

Anyone who has been following the news in Nigeria will have no problem providing useful illustrations in this respect. The latest is the matter of Walter Onnoghen, the Chief Justice of Nigeria (now suspended and on trial), over cloudy matters of assets declaration. There have been many permutations and points of analysis (legal and moral, speculative and affirmative) over this issue. We need not rehash the various details other than to remind us that issues have been raised about the government’s abuse of due process, and violation of the Constitution and the legal order, all after a characteristic fashion. There are those who argue that nobody is above the law, not even the Justice of the Supreme Court, but while that may be true, it is important also that the government is seen to be fair and sincere and that its commitment to law and justice is without blemish. The shoddy handling of CJN Onnoghen’s makes no impression on legal purists and positivists who aver that the law cannot be bent to serve the purposes of expediency, otherwise the law is advertised as an ass and every institution in the administration of justice system is put to ridicule.

In addition, I think if the objective of those who want Justice Walter Onnoghen out of the way, and who have offered a lot of prosecutorial folklore, is to punish him for assumed infractions or to replace him with a friendlier Chief Justice, they could have done a much neater job. But they bungled it. They have demonstrated what seems to be habitual and serial incompetence, so much that the government now finds itself in a ridiculous situation whereby lawyers are calling to question the competence of all the reported 52 lawyers in the government. It all looks worse because of the perception that judges are being hounded and that this particular government has no regard whatsoever for the doctrine of the separation of powers. This could have been avoided.

But when a government begins to make mistakes, if it does not apply the brakes of caution, those mistakes invariably multiply. In an election season where one man is struggling to be more useful, more sycophantic than the other, you are bound to have the kind of confusion at the highest levels that we are currently witnessing. Confusion No 1: The Buhari government has been branded a dictatorship, akin to a military dictatorship. It has done nothing to correct that impression. The same government launched a broad daylight attack on the National Assembly, the country’s apex legislative body. Lawmakers were prevented from gaining access to their offices by security agencies. There is, as a matter of fact, no love lost between the Executive arm of government and the legislature. Some government spokespersons have justified that attack on the grounds of national security and moonlight tales that even children would consider too fabulous.

Having pushed the National Assembly to a point where it is even afraid to call an extraordinary session without reading the mood of the Executive arm carefully, the Federal Government has also since gone after the judicial arm of government. The reputation of many judges has been soiled, and even if some judges are not above board like Caesar’s wife as they should be, even if there is a shorter supply of that judge in that once famous secondary school text: D. Olu Olagoke,The Incorruptible Judge,(can you imagine today’s judges selling eggs and running brothels?), the general trend is that the Buhari administration has no regard for court orders or the rule of law. More court orders have been violated in recent years than at any other time. This makes the comparison with military dictatorship popular and resonant.

Nonetheless, a compromised judiciary digs its own grave. It opens itself to abuse by other players within the state. An upright judiciary stands on a higher pedestal that enables it to discharge its duties without fear or favour. We can recall with relish the golden era of the Nigerian Supreme Court: the days of Ayo Irikefe, Chukwudifu Oputa, Kayode Eso… judges who stood up to tyranny and used the law and the court as a stablizing force and regulator. A lot has changed since that golden era. In those days, the judiciary stood firm and many of the judex could be counted upon to defend the law. Today, judges themselves encourage procedural infractions and assault on the Constitution. In the light of Section 158(1), Section 292 and Part 1 of the Third schedule to the Constitution, for example, does the President have the powers to suspend the CJN? Should any learned person issue a black market order to justify a constitutional infraction? Did the President lie to the nation by saying he acted in line with a CCT order? Did the order ask the President to suspend the CJN? The purported order says the CJN should “step aside”. Isn’t there a difference here? Does the President have the power to trigger a suspension? And should something as weighty as this be obtained through an ex parteorder? Is the embattled CJN Onnoghen not entitled to fair hearing? If so, is this not a clear case of abuse of court process? The sum trite point is that procedural law is as important as substantive law.

There are other questions: why didn’t CJN Onnoghen promptly summon the National Judicial Council (NJC) to a meeting to tackle the issues? Should he have tarried awhile? And why did the Acting CJN, Tanko Muhammed agree to aid illegality and Constitutional infraction by making himself available to be sworn in against all known norms and procedures; thus making himself a part of the problem? Shouldn’t he know what is right in the eyes of the law? Times like this call for courage from the Bar and the Bench. Cowardly silence or acquiescence after a few days of righteous noise-making, the type that I think is building up and spreading right now, could further damage the integrity of these two key institutions. There is a precedent. When a similar situation arose in 2007 in Pakistan under General Pervez Musharaff, the Bar and the Bench boycotted the courts and took to the streets (the Lawyers’ Movement/the Pakistan Long March) until the assault on the office of the Chief Justice was reversed. Will the Nigerian Bar and the Bench stand in unison?

The Buhari administration has been serially and severally accused of nepotism and cronyism. Two key opportunities presented itself recently to correct this impression. Confusion 2: Even if there is a seniority rule in terms of succession to the seat of the Chief Justice, the fact that the immediate beneficiary of the suspension of CJN Onnoghen is a Northerner merely promotes the charge of nepotism. Many commenters believe that Onnoghen had to be suspended or removed as it were, to allow a Northerner preside over the Supreme Court during an election season. The acting CJN may be innocent on this score, but the Federal Government does him much harm. All of a sudden, he has become a victim of malicious propaganda, obviously orchestrated by Onnoghen’s sympathizers. About the same period, a Northerner and a Muslim was also appointed the Inspector General of Police to succeed another Northerner and a Muslim. Similarly, every other strategic position in government is occupied by a Northerner. In the face of all this, the default response of the government is to argue that previous administrations did the same thing, meaning the ethnicization of power is normal. So what was all that pre-election preachment about change all about, if as at 2019, nothing has changed? This is cynicism carried too far. Apparently, public opinion means nothing in the view of these new Sheriffs. What exactly is the wisdom in encouraging North-South polarization during an election season?

If local public opinion is discounted, international public opinion is also dismissed as meddlesomeness and unwelcome interference. Confusion 3: Why is it that nobody can talk to “them” anymore and a healthy national conversation has become impossible? Some persons somewhere have forgotten how the international community, the same United Kingdom, United States and the European Union, that they now insult, carried the APC change agenda on their heads in 2014/2015. Our only consolation is that it is most unlikely that the international agencies in our midst will choose to be intimidated by the barking dogs and the hawks and the vultures of Nigerian democracy. It should be clear that Nigeria is not an island unto itself. It is not the other room. It is part of the larger room of global humanity. Under the international order, the country and its leaders are accountable to the people they lead and the rules of international engagement on the rule of law, fundamental human rights and good governance. So, there is no point to this barking match inside Nigeria; the dogs of agony must be put on a leash.

For the avoidance of doubt, the minimum that every one is asking for, before the issues disappear into a maze of arguments and counter-arguments, is that Nigerians and the international community expect Nigeria to conduct free, fair and credible elections, and that the authorities will not act in any manner that will exacerbate tension and throw the country into chaos. Political gladiators must put Nigeria first and ensure political stability. The people’s vote must be allowed to count. The battle for power must not be conducted to the detriment of institutions. This means that the independence and neutrality of state institutions must be guaranteed and protected. All the heads of strategic institutions who because of the allure of the moment, may have forgotten that tomorrow will come, should learn from the experience of yesterday’s men and women. There is always a yesterday and a tomorrow in the natural order of things. There is also a tendency to reduce everything in Nigeria to a battle of egos, and that has proven to be counter-productive, because many egos get deflated, no man kisses the stars forever. Vengeance as state policy or political strategy is deplorable.

This then, is a country right now, in desperate need of leadership. That leadership has to be provided by all stakeholders, not by any cabal, and we will find it, if Nigeria is placed first and we all look beyond rhetoric and short-term benefits, and those who matter stop treating this country like a prostitute.