Sir B.M. WIFA, OFR, SAN, DSSRS, KJW, is an eminent lawyer and legal icon whose views are highly respected on matters of national interest.
In this interview with JAMES FEBEBEBO, Sir B. M. WIFA expresses his opinion on the suspension of the Chief Justice of Nigeria, Justice Walter Onnoghen by President Muhammadu Buhari.
Sir B. M. WIFA says that President Buhari acted without lawful authority when he suspended the Chief Justice of Nigeria.
President Muhammadu Buhari has suspended the Chief Justice of Nigeria, Justice Walter Onnoghen, pending the conclusion of his trial on alleged false declaration of assets. What's your reaction, Sir?
I think that it's a very dangerous thing that has happened, dangerous in the sense that there's no way you can justify, as far as I am concerned, the actions of the President. The President is the President of Nigeria. His powers are prescribed by the constitution. We've been trying unsuccessfully to operate Constitutional Democracy. Some people say, because of our failures, it's a fledgeling democracy. I ascribe that appellation to our failure to operate this system for the past 58 years and this is part of the problem. The President's powers are prescribed by the Constitution and the Constitution has its scheme for the governance of this nation. The judiciary has its own place in it and the place of the judiciary in this type of democracy is to insulate it from needless and unjustified interference in its affairs. In other words, to save it from an assault both from the executive and the legislature or from anybody in that matter including the media. So, the judiciary must be safeguarded to make sure that it operates within the scheme to guarantee the success of the rule of law.
So, would you say the President's action is an assault on the judiciary?
It is a naked attempt of usurpation of the powers… It's what the lawyers call ultra vires. He doesn't have the powers. He acted without lawful authority to do what he did. So, for those who are saying that 'oh, there's this order of a court, CCT', whatever court that is, I won't know if it had the powers to try anybody including a judicial officer… but assuming that it has some powers, that court has not tried and found Onnoghen, the Chief Justice guilty of any offence. It's apparent that what has happened is that because of the executive's unhappiness with the way the matter is going before the courts, you now find him guilty and suspend him. That exparte order, I've not read it but no exparte order can find the man guilty of an offence that he is yet to be tried. The matter was adjourned to today, 28th (January) and there had been challenges here and there including an order from the Court of Appeal… That order is there then suddenly, Mr. President says, 'oh look, I got an order dated the 23rd… “ What I'm trying to say is that this whole thing is contrived. Where is his authority? Assuming that the Code of Conduct Tribunal had tried him and they've not even heard him, they've not even heard any evidence against him, so what we have been fed with is that there's something in his declaration which is an admission… Who is to determine what that is? Is it the executive, is it the Minister of Justice and Attorney-General, is it the Personal Advisers to the President? It is the court that is to determine the import of that and that has not happened. So, we've been fed to a farce which has very dangerous consequences.
Sir, ordinarily, what would have been the process of removal of a Chief Justice in Nigeria?
Well, to the best of my knowledge, if you look at the Constitutional provision in Section 292 Sub 1, it spells out the removal (of a Chief Justice of Nigeria). (It says), “A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances: (a) In the case of Sub (1), Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate”. So, that's the removal. Well, I've heard people argue that what has happened is not a removal but it's a suspension. A suspension is a disciplinary order. There's nowhere Mr. President has such powers because under the Constitution, it is only the NJC (National Judicial Council) that can exercise disciplinary control over a judicial officer.
And the NJC has not been involved in this case?
Well, that's what I'm saying, so, what Mr. President should have done, as far as I know, is if he got any order including this order they purported he acted on, it's either he goes to senate and say, 'Look, I want to remove Mr. Onnoghen as Chief Justice of Nigeria’ and then they will debate the matter and he can secure two-thirds majority. He can (then) remove him or he can take it to NJC and say 'I've got this order of a court and I want Mr. Onnoghen as Chief Justice suspended’. NJC will look at it and then recommend the suspension of the Chief Justice.
Do you see any political motive behind Mr. President's action?
Well, I don't have powers seeing things except by evaluating the facts that are in the public domain… As I've said, the President acted without lawful authority, so, if he acted without lawful authority, it means that these are exercises in futility because the thing is, legally speaking, those are matters of illegality.
The process of removal is an illegality, the process of swearing in another person is an illegality. They are all ultra vires to the constitution. So, they are ordinarily, if court were to pronounce them, they are null and void.
So, sir, how do we resolve these illegalities?
Well, that is why I've said that we should be concerned about Nigeria. It is not Onnoghen that is on trial. It's the principle of the rule of law and in particular the issue of the independence of the judiciary that is on trial. Can a President come and pronounce on the guilt of a person who has not been found guilty by a court and then purport to remove him or suspend him? That's the question particularly when that person is a judicial officer.
Some persons have said President Buhari is dictatorial?
Well, you judge for yourself… but you see, I don't want to ascribe motives… but the motives are self-evident that we are not doing what we ought to do because constitutional democracy means that you must abide by the Constitution, so, if you do anything that is an affront to the Constitution, then it's an assault on it and if you claim to have such powers, then they are dictatorial powers.
He warned the UK, the US and the European Union not to interfere in the internal affairs of Nigeria over this issue.
That's a joke. If the United States of America wants to remove Nigeria from the face of the earth, they will do so but that's not the issue. We don't live in isolation. We are in an international community and what happens here matters to the international community and they can give their views and I think they are entitled to do so. But I think the point to be made is that we should not think that we can just act arbitrarily… because if you do, that will be the height of impunity and that is what has been worrying us in this country.
Should judges play the ball as President Buhari sets it out for them to play?
Apparently, that is what he wants and it was very clear from the very first Annual General Conference of the NBA in Abuja in 2015, that he attended with the Vice President who is a renowned scholar, Professor of Law, former Attorney-General of Lagos State and a Senior Advocate of Nigeria. He didn't say 'go and represent me', he went there with him and then decided to deliver the address which if you were able to read expressly and between the lines, you will know that this man said, 'look, this is my agenda and you fall in or else…', so, I'm not surprised that we come to where we are now and that's what I said about the NBA that they should have seen that coming and not waited until now this crisis point but as I said, some of us want this country to survive. We don't want it to be broken up now and again. Those who are commenting on this, if you look at them, they want to support it either because they are appointees of the President or because they want to support somebody from their ethnic nationality… That is what has been worrying this country, our DNA (Deoxyribonucleic Acid). So, I think it is wrong and I think it's about time we should be able to sit down, look at these issues critically and fix this country.
What more would you want to say, Sir?
Let reason prevail. I know it will be difficult for Mr. President, knowing his background, to back down… If I were to go back to 1986, you would see that Nigeria was to look for a good political model to operate and some great minds in this country had proposed systems called diarchy and triarchy, meritocracy and all of that. What's playing out now is diarchy where the military will form some partnership with civilians to run the government and I warned them that the military influence was going to prove a destabilizing factor and that's what is happening. You see, it's difficult for a military man to take orders from civilians, by their training. In fact, I'm wondering whether Mr. President is not in the proverbial wolf in sheep's clothing but that's left for others to determine.