By Carl Umegboro
Africa’s most populous nation, Nigeria presently witnesses a new hubbub on anti-corruption battle involving a high profile figure – the head of another arm of the federal government. Earlier on, it was against the head of the legislative arm; Dr. Bukola Saraki, the Senate President. Saraki was subsequently discharged and acquitted by technicalities – procedural defects. Presently, the arrow is unprecedentedly pointing to the head of the judiciary; Hon Justice Walter Nkanu Onnoghen, JSC; Chief Justice of Nigeria that heads the nation’s Supreme Court and National Judicial Council (NJC), for operating undeclared foreign accounts contrary to Code of Conducts for public officers as provided in Sec 11 (1) (2) of the 5th Schedule of the 1999 Constitution of the Federal Republic of Nigeria as amended.
The incident has cacophonously engendered pandemonium with two distinct sides; one in solidarity and the other for the Code of Conduct Bureau (CCB) for charging the head jurist to the Code of Conduct Tribunal (CCT). Despite hue and cry, federal government through the Nigerian Financial Intelligence Unit (NFIU) uncompromisingly froze Justice Onnoghen’s five affected accounts by means of Presidential Executive Order No. 6 of 2018, and demanded his resignation as CJN. In the two proceedings, Justice Onnoghen was absent. Consequently, President Muhammadu Buhari as ordered by the tribunal suspended him as CJN pending the conclusion of the trial pursuant to Section 11 of the Interpretation Act, Cap 123, Vol. 8, LFN, 2004. If acquitted, reinstatement is certain.
Nonetheless, the die is cast as both sides have radical legal luminaries. However, the learned jurist admitted ownership of the foreign accounts but explained he forgot to declare them as statutorily required from public officers. By the admission alongside banks extracts, the prima facie cases have been established which pointed to commission of crimes. Unfortunately, proof doesn’t solely determine a conclusion as substantive law merely governs rights and obligations. Enforcing them to secure convictions and sentences is entirely a different ballgame as it demands absolute compliance to stipulated rules and procedures. For example, established crimes with evidences may still end up in futility if characterized by procedural defects in the judicial process.
Thus, the issue is more of a clash between substantive and procedural laws. Hence, notwithstanding the apparent breach of the laws as admitted by the learned jurist, the proviso demanding the agency to first invite the accused public officer for a written response; either to admit or refuse to react may render the charges defective since it allegedly wasn’t done. However, this clause is ill-conceived for selfish motives. The blunder transcends the present brouhaha and demands justification as it isn’t for public interest knowing the offenders would seek settlement during the invitations. In generic sense, it is deficient but however, remains the law until reviewed.
A fundamental challenge is the explanation to provide especially to the masses that are constantly bundled and convicted for crimes they sometimes committed unconsciously. For example, several motorists have been arrested for mistakenly or forgetfully breaking traffic laws, and excuses of oblivion fell on deaf ears. Similarly, former Finance Minister, Kemi Adeosun after her admission threw in the towel and lost her job over omission to get authentic NYSC exclusion certificate. By the position of the accused as helmsman of the judiciary, anything short of conviction and sentence after his open admission will be perceived in public quarters as undue influence. Meanwhile, the procedural defects probably led to the cataclysm.
Another critical issue in the issue is the Appeal Court’s decision in Ngangiwa v FRN (2017) LPELR-43391 which however, ruled that judicial officers accused of offences must first be subjected to investigation and disciplinary actions by the National Judicial Council. Incidentally, the accused jurist heads the NJC expected to investigate the allegations pursuant to the appellate decision, and therefore, it would incontrovertibly clash with the principle of natural justice; ‘Nemo judex in causa sua’ (nobody may be a judge in his own case) which is sacrosanct. Convincingly, the Appeal Court never envisaged such a catastrophic scenario. Again, having openly admitted the omission or commission, the question that may rationally arise is the essence of further investigations by the body since investigation is possibly aimed at ensuring that a judicial officer accused of offences actually committed the alleged offences prior to prosecution in the court.
The most delicate aspect of the saga is the clash between rule of law and equality before the law. Critically, should the crimes be overlooked by CCB over the accused jurist’s status? Fifth Schedule of the Constitution incidentally exempted none, not even the President of the Federation that enjoys immunity. By his admission, the public are eagerly hoping to see conviction which may not come. Suffice to say it is high time agencies of government as a remedial mechanism split legal departments into Solicitors and Advocates units for shared responsibilities. This would optimistically, technically separate their duties such that while Solicitors department guides operations on substantive matters, the Advocates unit ensures strict compliance to rules and procedures for efficient service delivery.
The gargantuan omission certainly exists as a result of the fusion of the two distinct professions; solicitors and advocates in Nigeria. Resultantly, law enforcement agencies merely consider issues vis-à-vis substantive laws but rarely consider the procedural aspects which lead to convictions prior to embarking on their actions. If judiciously measured, numerous high profile cases that nauseatingly suffer defects in court every now and then over technicalities will be minimized as that has continually led to public’s loss of confidence in the judiciary each time obvious crimes shockingly got dismissed in court. As remarkably expounded in R v Sussex Justices ex parte McCarthy  1 KB 256, “Justice must not only be done but seen to be done”. Thus, the legal system should necessarily, convincingly reflect justice at all times especially to the officious bystanders – average citizens for unflinching confidence in the system.
Umegboro is a public affairs analyst and Associate, Chartered Institute of Arbitrators (United-Kingdom). 08023184542-SMS-only.
By Carl Umegboro