A prominent Non-Governmental Organisation, the Human Rights Writers Association of Nigeria (HURIWA), has raised alarm that President Muhammadu Buhari “by arbitrarily suspending the substantive Chief justice of Nigeria Walter Onnoghen, and swearing in an acting CJN of Northern origin without the due process of the law amounted to high treason and the President should be impeached.”

HURIWA in a statement on Saturday by Comrade Emmanuel Onwubiko, the National coordinator and Miss Zainab Yusuf, the National Media Affairs Director, stated as follows: “Section 292 of the Nigerian constitution deals with the removal of some public officials including the CJN. The section does not distinguish temporary removal (suspension) from a permanent removal (sack).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 –

“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 and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.”

(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State,

Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;

(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.

In other words, a sitting CJN can only be removed from office by the president after at least two-thirds majority members of the Senate support such a move. No such matter has been debated in the Senate

The Power granted to the President under section 292 of the 1999 Constitution is the power to REMOVE listed judicial officers like the Chief Justice of Nigeria, acting on an address supported by two thirds majority of the Senate. This power if read alongside paragraph 21 (b) of Part 1, third Schedule, 1999 Constitution, paragraph 18(2), Part 1, fifth Schedule, may imply that prior to such address that must be supported by two thirds majority of the Senate, a recommendation may have been made for the removal of the CJN by the NJC or the Code of Conduct Tribunal must have imposed a punishment on the CJN requiring him to vacate his office after he had been found guilty of contravening the provisions of the Code.

The Power to remove is different and is even more stringently interpreted in employments with statutory flavor as in this case, but we have not even begun to talk about the power of removal. Granted that the CCT may have a constitutional role in the removal of the CJN going by a wholistic reading of the above provisions, but there is no statutory provision that clothes the CCT with power to order the CJN or any person appearing before it to step aside or recommend that the President should suspend the CJN or anyone appearing before it. Such a procedure amounts to denying the CJN or whoever has been subjected to such treatment by the CCT, his constitutionally guaranteed presumption of innocence and is an imposition of punishment by the CCT even before it has made a finding of guilt (which finding is even appealable to the Court of Appeal). Even after finding a person such as the CJN guilty of a contravention against the Code of Conduct the Constitution strictly lists the punishments it can impose on the guilty party (subject to his right of appeal) and the listed punishments do not include suspension or recommendation for suspension. It is putting the cart before the horse, and a violation of the rights of the accused to a fair trial, to suspend him from office while he is undergoing trial before your court when you are not his employer who has initiated disciplinary proceedings against him.

The suspension of the CJN by the president under whatever guise constitutes a constitutional infringement of the principle of separation of powers and a usurpation of the disciplinary powers of the NJC enshrined in the Constitution. The power of removal granted under the constitution not being an absolute power but one predicated on specified conditions and requiring the participation of other actors alongside the President does not include the power to unilaterally suspend which is under of the disciplinary powers of the NJC. As we have always maintained the decision in the Nganjiwa case, in blurring the delicate lines between disciplinary and penal proceedings may have unwittingly contributed to the desperation that led to this monumental blunder in suggesting to the minds of those ignorant of the workings of the law, that the judiciary was hell-bent on protecting its corrupt members and shielding them from the reach of the law. While the current blunder is inexcusable, we can feel the reverberating effect of the Nganjiwa case in the spate of court orders and applications that has trailed this particular case and finally culminated in this desperate measure whether well motivated or ill motivated. In the final analysis, this ill-advised move has rendered nugatory whatever credibility there seemed to be in the initial revelation of undeclared asset by the CJN and transformed the case into one of ill-advised abuse of power. Two wrongs do not make a right.

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