A frontline lawyer and elder
statesman, Professor Ben Nwabueze, SAN, has called for the resignation of
President Muhammadu Buhari, Attorney General of the Federation and Justice
Minister, Abubakar Malami, SAN.
He also said the Chairman of the
Code of Conduct Tribunal, CCT, Justice Danladi Umar should also vacate the
position.
He said the men have subverted
the country’s constitution via the suspension of the Chief Justice of Nigeria,
CJN, Justice Walter Onnoghen.
Nwabueze made the call in a long
statement he released on Thursday evening.
He said the CCT chairman cannot
order the suspension or vacation from office of a public officer until after
trial, hence ”the CCT acted ultra vires the Constitution in making the order
directing the President to suspend the CJN from office. The suspension is
unconstitutional, null and void.”
Nwabueze said also that President
Buhari has no power to suspend Onnoghen and appoint an acting CJN.
His statement reads, ”President
Buhari’s suspension of the Chief Justice of Nigeria from office is, in itself,
a most condemnable subversion of the Constitution, but his statement while
announcing it to the public makes the action so absurdly subversive.
”The ‘administration’s avowed
respect for the Rule of Law’ and for obedience of court orders sound like a
deliberate perversion of truth, as witness Dasuki’s continued detention four
years after a court of law ordered his release on bail, and same as Ibrahim
Yaquob El Zakzaky two years after he was granted bail.
”The President’s statement raises
several questions, the most crucial of which is as to whether the CCT has the
power to order or direct the President to suspend the CJN.
“Second, whether the President,
incarnating the Nigerian state, and as guardian of its Constitution, is bound
to carry out the order, even when he knows, as he ought to know, that he has no
power to suspend the CJN.
“Third, do the circumstances in
which the order of the CCT was obtained not suggest a pre-meditated plan to
subvert the Constitution?
”With respect to the first
question above, the suspension is manifestly subversive of paragraph 18 of the
Fifth Schedule to the Constitution (1999), which provides as follows: ’18. (1) Where
the Code of Conduct Tribunal finds a public officer guilty of contravention of
any of the provisions of this Code it shall impose upon that officer any of the
punishments specified under sub-paragraph (2) of this paragraph and such other
punishment as may be prescribed by the National Assembly.
“(2) The punishment which the
Code of Conduct Tribunal may impose shall include any of the following – (a)
vacation of office or seat in any legislative house, as the case may be. (b)
disqualification from membership of a legislative house and from the holding of
any public office for a period not exceeding ten years; and (c) seizure and
forfeiture to the State of any property acquired in abuse or corruption of
office. (4) Where the Code of Conduct Tribunal gives a decision as to whether
or not a person is guilty of a contravention of any of the provisions of this
Code an appeal shall lie as of right from such decision or from any punishment
imposed on such person to the Court of Appeal at the instance of any party to
the proceedings.
”It is clear from paragraph 18
that: only the CCT itself can order vacation of or suspension from office; the
President is not empowered to do so, and cannot be ordered or directed by the
CCT to do so; more importantly, the CCT cannot make an order vacating an office
or suspending a person from office until the trial before it is completed and
the accused person is found ‘guilty of contravention of any of the provisions
of this Code’; the trial in this case is only just commencing; the right of
appeal to the Court of Appeal conferred by paragraph 18(4) of the Fifth
Schedule is from a decision of the CCT finding the accused person guilty of
contravention of the Code, not from the action of the President suspending the
accused person from office even when the action (suspension) is on the
direction of the CCT; the denial of that right is a violation of the
Constitution.
”In conclusion, the CCT acted
ultra vires the Constitution in making the order directing the President to
suspend the CJN from office. The suspension is unconstitutional, null and void.
The second question raised above, though not as crucial, is remarkable for its
great intricacy.
“The impression created by his
statement is that the President is trying to hide under the cover of the
principle that an order of court directing him to do something imposes upon him
a duty to carry out the order, notwithstanding that he does not have the power
to do the thing in question, and that we are thereby precluded from enquiring
as to whether or not he in fact has the necessary power.
“The ex parte order the President
obtained from the CCT directing him to suspend the CJN from office does not,
and cannot, erase the fact that he lacks the power to do that. The New Webster
Dictionary of the English Language defines ‘suspend’ to mean ‘to remove
temporarily from an office, to cause to cease for a time from operation or
effect.’
“The CJN is both the head of the
judiciary, in which role he exercises largely administrative functions, as well
as a justice of the Supreme Court; his removal (or suspension) from office as
CJN can only be effected by the President with the support of two-thirds
majority of the Senate, while his removal as an ordinary justice of the Supreme
Court is by the President on the recommendation of the National Judicial
Council (NJC) – section 292 Constitution 1999. The suspension (removal) of the
CJN from office by the President does not comply with the two requirements of
section 292 of the Constitution and is therefore null and void, notwithstanding
that it is ordered by the CCT.
”The President had followed the
suspension of the CJN with the appointment of the most senior justice of the
Supreme Court as Acting CJN.
“The validity of the acting
appointment depends on whether there is a vacancy in the office. Without a
vacancy, no one can validly be appointed to the office in an acting capacity.
Be that as it may, an acting appointment must comply either with any special
constitutional provisions relating thereto or, if there is none, then, with the
general provisions governing the appointment of a CJN. These require the
appointment to be made by the President on the recommendation of the NJC
subject to confirmation by the Senate: section 231(1).
“The 1999 Constitution has no
special provision relating to the appointment of a CJN in acting capacity. The
general provisions in section 231(1) therefore apply.
“The circumstances surrounding
the suspension of Onnoghen and the hurried swearing-in of Mohammed as Acting
CJN suggest that section 231(1) is not complied with in the swearing-in of the
latter. The acting appointment is therefore null and void.
”In this connection, section
231(4) of the 1999 Constitution differs significantly from section 211(4) of
the 1979 Constitution, which reads: ‘(4) If the office of Chief Justice of
Nigeria is vacant, or if the person holding the office is for any reason unable
to perform the functions of the office, then until a person has been appointed
to and has assumed the functions of that office, or until the person holding
the office has resumed those functions, the functions shall be performed by a
person to be designated from time to time in that behalf by the President,
acting in his discretion, from among the Justices of the Supreme Court.
“Section 231(4) of the 1999
Constitution is certainly a significant advance in our democratic evolution.
What the President has done by the suspension of the CJN in his discretion
without recourse to the Senate (or the NJC) is to take us back to the era of
personal rule, which is the form of rule to which his career as a military
commander has accustomed him.
“Personal rule and dictatorship
is anathema to Nigerians. We want nothing more of that obnoxious system of
rule. After the Federal High Court (FHC) has ordered a stay of proceedings in
the prosecution against the CJN and adjourned the case until a named date, the
President, being the alter ego of the Federal Republic of Nigeria (FRN), the
named complainant, went behind the scene and surreptitiously got the CCT, the
supposed impartial arbiter, to order the suspension of the CJN, the other party
in the case.
“This is subversion unchained and
running wild to devour the defendant in the suit, and to stifle the system of
constitutional restraints on power. By this action the President has lost all
his integrity and fitness to govern, and should not remain in office.
“The ex parte order issued by the
CCT, on which the President relied as authority for suspending the CJN, calls in
question the integrity of its chairman, Justice Danladi Umar, as well as his
impartiality as arbiter in the matter. Allegation of corruption has been
levelled against Justice Umar in the Sunday Vanguard of 15th November, 2015.
“The newspaper report discloses
an investigation by the Economic and Financial Crimes Commission (EFCC) of a
N10 million corruption allegation against Umar as chairman of the CCT and the
former Deputy Controller-General of Customs, Rasheed Taiwo, N1.8 million of
which had reportedly been paid by Taiwo and collected on Umar’s behalf by his
personal assistant, Gambo Abdullahi….
”It is surprising that in spite
of all this, Justice Umar is still in office as chairman of the CCT, which
suggests that he is being kept there as part of a pre-planned subversive design
aimed at manipulating the 2019 presidential election.
”This sad episode in our history
would not be completely resolved by the resignation of Justice Onnoghen, as is
being suggested in some quarters, unless the President, as the person who
brought this whole mess upon us, also resigns. The Attorney-General of the
Federation (AGF), Abubakar Malami (SAN), and Justice Danladi Umar must also
resign.”
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